Judge: Matthew C. Braner, Case: 37-2021-00041852-CU-BT-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2021-00041852-CU-BT-CTL MACCHARLES VS BRAND VENTURES INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendants Burke Oliver Concepts, Inc.'s demurrer to the first amended complaint is SUSTAINED.

Defendant's request for judicial notice is granted.

A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Defendant demurs to the first cause of action for violation of Business and Professions Code section 17529.5 on the basis that Plaintiff has not adequately alleged that Defendant 'advertise[d] in' an unlawful email message. Defendant also demurs to the second cause of action for declaratory relief on the basis that it is wholly derivative of the first cause of action, which cannot survive demurrer. The court agrees that section 17529.5 is limited to those who 'advertise in' an unlawful commercial email advertisement and does not apply to those who merely initiate (i.e., send or transmit) the unlawful email.

The plain statutory language of Article 1.8 (Bus. & Prof. Code §§ 17529-17529.9) evidences an intent to distinguish between those who 'advertise in' a commercial email advertisement and those who 'initiate' a commercial email advertisement. Sections 17529.2 and 17529.4 specify a variety of ways in which it is unlawful to 'initiate or advertise in' an unsolicited commercial email advertisement. (See Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343.) For example, section 17529.2 forbids a person from initiating or advertising in an unsolicited commercial e-mail advertisement sent from California or to a California electronic mail address. Likewise, subdivision (a) of section 17529.4 makes it unlawful to collect email addresses if the purpose for collection is to either '[i]nitiate or advertise in an unsolicited commercial e-mail advertisement from California, or advertise in an unsolicited commercial e-mail advertisement sent from California,' (Bus. & Prof. Code, § 17529.4, subd. (a)(1)), or to '[i]nitiate or advertise in an unsolicited commercial e-mail advertisement to a California electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to California electronic mail address.' (Bus. & Prof. Code, § 17529.4, subd. (a)(2).) In contrast, section 17529.5 excludes the word 'initiate' and makes it unlawful only for a person or entity to 'advertise in a commercial e-mail advertisement either sent from California or sent to a California Calendar No.: Event ID:  TENTATIVE RULINGS

2999821  20 CASE NUMBER: CASE TITLE:  MACCHARLES VS BRAND VENTURES INC [E-FILE]  37-2021-00041852-CU-BT-CTL electronic mail address.' (Bus. & Prof. Code, § 17529.5, subd. (a).) Given this difference in usage, were the court to accept Plaintiff's proffered interpretation of 'advertise in' as including those who merely send or transmit an advertisement, it would render the 'initiate' language of the related sections surplusage.

(See, e.g., Cooley v. Superior Court (2002) 29 Cal.4th 228, 249.) Moreover, the Legislature has declared that both advertisers and spammers need to be regulated and that the 'true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements.' (Bus. & Prof. Code, § 17529, subds. (j), (k).) Thus, a greater degree of regulation on advertisers via section 17529.5 is consistent with the Legislature's emphasis on advertisers as the true beneficiary of spam emails.

Plaintiff also has not adequately alleged that Defendant advertised in an unlawful email advertisement.

Defendant was substituted in for Doe 19, and the only allegation applicable to Doe 19 in this regard are the legally conclusory statements that 'Defendants' advertised in unlawful commercial emails. However, this conclusory allegation is contradicted by the more specific allegations and the attached documents, plainly show that only Defendant Brand Ventures advertised in the emails. (See Genis v. Schainbaum (2021) 66 Cal.5th 1007, 1015.) However, the court is not persuaded that the FAC cannot be amended to either adequately allege that Defendant advertised in an unlawful email message (which could include emails not specifically referenced in the complaint) or to add a claim that is applicable to a person or entity that only initiates, but does not advertise in, an unsolicited commercial email advertisement.

Accordingly, Defendant's demurrer is sustained with leave to amend.

Plaintiff has 30 days from entry of this order to file a second amended complaint.

The minute order is the order of the court.

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