Judge: Kevin C. Brazile, Case: 24STCV26549, Date: 2025-06-18 Tentative Ruling

Hearing Date: June 18, 2025

Case Name: Palacios v. Omnipet Inc

Case No.: 24STCV23260

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Omnipet Inc

Responding Party: Plaintiff Marielita Palacios

Notice: OK

Ruling: The Demurrer is sustained, without leave to amend.

The Motion to Strike is denied.

Moving party to give notice.

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This is an action in which Plaintiff Marielita Palacios, a website “tester”, alleges that Defendant Omnipet Inc. violated the California Invasion of Privacy Act by allowing its website to install a pen register and/or trap and trace device on Plaintiff’s browsers so as to collect Plaintiff’s IP address.

Defendant Omnipet Inc now demurs to the entirety of the FAC for failure to state sufficient facts.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

A person who has been injured by a violation of CIPA may bring an action against the violator for the greater of $5,000 or three times the amount of actual damages, if any, sustained by the plaintiff.  (Pen. Code § 637.2(a).)  “It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”  (Pen. Code § 637.2(c).)

“Except as provided in subdivision (b), a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.”  (Pen. Code § 638.51(a).)  

“ ‘Pen register’ means a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication. ‘Pen register’ does not include a device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider, or a device or process used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.”  (Pen. Code § 638.50(b).)

“ ‘Trap and trace device’ means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.”  (Pen. Code § 638.50(c).)

Cases like this one have become common, and there have been various outcomes.  

The Court finds that the collection of an IP address is a normal component of accessing a website such that there can be no liability here.  (See, e.g., Pen. Code § 638.51(b)(1); United States v. Forrester (9th Cir. 2008) 512 F.3d 500, 510; U.S. v. Morel (1st Cir. 2019) 922 F.3d 1, 9 [defendant had no reasonable expectation of privacy in her IP address because “an internet user generates the IP data . . .  only by making the affirmative decision to access a website”]; U.S. v. Caira (7th Cir. 2016) 833 F.3d 803, 806 [IP addresses are broadcast “far and wide in the course of normal internet use”; hence there is no reasonable expectation of privacy in IP address]; U.S. v. Wellbeloved-Stone (4th Cir. 2019) 777 Fed. Appx. 605; U.S. v. Gottesfeld (D.Mass. 2018) 319 F.Supp.3d 548 [use of pen register did not violate Fourth Amendment rights because no reasonable expectation of privacy in IP address routing information]; U.S. v. Knowles (D.S.C. 2016) 207 F.Supp.3d 585 [no reasonable expectation of privacy in IP address which a user voluntarily provides to third parties every time she uses the internet]; Heeger v. Facebook, Inc. (N.D.Cal. 2020) 509 F.Supp.3d 1182, 1189 [“Plaintiffs do not plausibly allege anything more than the collection of IP addresses, and there is no legally protected privacy interest in IP addresses”].)

Thus, the Demurrer is sustained, without leave to amend.

The Motion to Strike is denied as moot.  The RJN are granted.

Moving party to give notice.