Judge: Michael Shultz, Case: 24STCV10379, Date: 2025-02-06 Tentative Ruling

DEPARTMENT 40 - MICHAEL J. SHULTZ  - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 24STCV10379    Hearing Date: February 6, 2025    Dept: 40

24STCV10379 Rebeka Rodriguez v. Indium Software, Inc.

[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FIRST AMENDED COMPLAINT

[TENTATIVE] ORDER DENYING THE MOTION TO STRIKE

                                                                                         I.         BACKGROUND

      The first amended complaint (“FAC”) alleges that when Plaintiff visited Defendant’s website,  Defendant deployed spyware that was installed on Plaintiff’s browser that collected Plaintiff’s personal information without Plaintiff’s consent in violation of the California Invasion of Privacy Act (“CIPA”), codified at Penal Code, section 638.51 subd. (a).)

                                                                                          II.        ARGUMENTS

      Defendant argues that the FAC does not allege that Defendant used a pen register. Website visitors do not have an expectation of privacy over their IP address since they voluntarily provide it. Regardless, pen registers do not collect IP addresses. Defendant separately moves to the strike the claim for punitive damages and attorney’s fees since the alleged facts do not support recovery of either.

      In opposition, Plaintiff argues that an IP address is personal information. The alleged facts support the allegation that Defendant uses either a pen register or a “trap and trace” device. If the court sustains demurrer, Plaintiff asks for leave to amend. The motion to strike should be denied because it ignores Plaintiff’s specific allegation that Defendant secretly and intentionally deploys tracking software that monitors visitors without their consent. The alleged conduct is criminal, which meets the definition of despicable conduct. Plaintiff requests attorney’s fees under Code Civ. Proc., § 1021.5.

      In reply, Defendant reiterates that collecting IP addresses is not prohibited and is not actually collected by a pen register. A visitor’s state, city, and zip code are not sensitive or private. The punitive damage allegations should be stricken, and Plaintiff did not allege facts to support Plaintiff’s entitlement to fees under Code Civ. Proc., § 1021.5.           

                                                                                  III.       LEGAL STANDARDS

      A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

      The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

      Sufficient facts are the essential facts of the case stated, "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

      A motion to strike is limited to matters that appear on the face of the pleading or any matter of which the court can take judicial notice. (Code Civ. Proc., § 437.) The court may strike any irrelevant, false, or improper matter inserted in any pleading; or strike all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. §436 subd. (a)-(b).)

                                                                                                IV.       DISCUSSION

A.     Judicial Notice

      The court grants Plaintiff’s request for judicial notice of bill analysis by the Senate and Assembly Committees on Public Safety. (Evid. Code, § 452 (c).) Plaintiff’s request for judicial notice of minute orders issued in other cases is denied as they are irrelevant to the court’s analysis.

B.     Analysis

      Plaintiff alleges a claim in violation of Penal Code section 648.51 subd. (a) which states:

"(a) 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.) The statute defines the foregoing technology:

"(b) “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.

(c) ‘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.)

      Plaintiff alleges that when a user visits Defendant’s website, Defendant’s response to the request includes the installation of a PR/TT beacon on the user’s browser which sends the user’s IP address to the developer, here Defendant. (FAC, ¶ 38.) Defendant installed the PR/TT beacon on Plaintiff’s and others’ device without consent or court order. (FAC, ¶ 53.)  The IP address allows Defendant to provide services to itself and other clients, including targeted advertisements and web site analytics to “digitally fingerprint” each user. (FAC, ¶ 52.) Plaintiff alleges visitor data is harvested and shared immediately upon webpage loading, preceding any opportunity for visitors to consent or decline the website’s privacy policy. (FAC, ¶ 56.)

      Plaintiff alleges she visited Defendant’s website in January 2024. (FAC, ¶ 72.) Defendant caused a PR/TT beacon to be installed on Plaintiff’s browser to collect Plaintiff’s unique IP address as well as the user’s operating system name and version number; browser name, version number, and language; screen resolution; geolocation data, email address, mobile ad IDs, and embedded social media identities, among other personal information (FAC, ¶ 73).

      The FAC alleges Plaintiff did not provide prior consent for Defendant to install or use the PR/TT beacon on Plaintiff’s browser. (FAC, ¶ 75.) Defendant did not obtain a court order before installing or using the PR/TT beacon, and therefore, Defendant invaded Plaintiff’s privacy in violation of section 638.51(a) of the California Penal Code (FAC, ¶ 76.)

      Defendant contends the PR/TT beacon collects only an IP address. (Dem. 6:3-4.) This contention is undermined by the specific information allegedly obtained which was unique to Plaintiff and involved more than an IP address. (FAC, ¶73.) Defendant has not persuasively distinguished Greenley v. Kochava, Inc. (S.D. Cal. 2023) 684 F.Supp.3d 1024 which Defendant contends involved private and sensitive information not at issue here.  (Dem. 4:18-20.) Again, the information allegedly obtained was more than an IP address. (FAC, ¶ 73.) Greenley underscored the court’s observation that the term “pen register” was defined with “expansive language” and constitutes a “process” as used in the statute. (Greenley at 1050 ["Surely among them is software that identifies consumers, gathers data, and correlates that data through unique ‘fingerprinting.’ Thus, the Court rejects the contention that a private company's surreptitiously embedded software installed in a telephone cannot constitute a “pen register.”].) Greenley did not limit “sensitive information” to include only religious affiliation, sexual orientation, or medical condition. (Dem. ¶ 4:18-20.) The Greenley court was describing the information likely to be collected as alleged by the plaintiff in that case. (Greenley at 1047.)

      Defendant’s remaining arguments that attempt to establish that since only IP addresses are collected, there is no violation, are unavailing as the argument does not consider what Plaintiff has actually alleged.

C.     Motion to strike the claims for recovery of punitive damages and attorney’s fees.

      A plaintiff may recover exemplary damages where the defendant is guilty of oppression, fraud, or malice. (Civ. Code, § 3294 subd. (a).) The predicate acts to support the claim must be intended to cause injury or must constitute “malicious” or “oppressive” conduct as defined by statute. “Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them"].) "Oppression" is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (a) subd. (c)(2).)

      In other words, absent an intent to injure the plaintiff, the conduct must be “despicable” defined as “base, vile, or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 724.) Plaintiff alleges that Defendant surreptitiously places software on Plaintiff’s computer that enable it to mine sensitive information unique to Plaintiff to establish a digital “fingerprint” that Defendant then sells to others, all without Plaintiff’s consent. These allegations fall within the scope of a criminal statute and adequately serve as predicate facts to support the claim for punitive damages and from which a trier of fact could determine that the conduct was “despicable” and carried on with a willful and conscious disregard of Plaintiff’s rights.

      Finally, it is not an abuse of discretion to refuse to strike a claim for attorney fees where Plaintiff has not had a full opportunity to determine the basis for such fees. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699; Yassin v. Solis (2010) 184 Cal.App.4th 524, 533) ["There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings."].

                                                                                          V.        CONCLUSION

      Based on the foregoing, demurrer to the first amended complaint is OVERRULED. The motion to strike is DENIED. Defendants are ordered to file an answer within 30 days.