Judge: Richard S. Whitney, Case: 37-2022-00012259-CU-OE-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2022-00012259-CU-OE-CTL BAPTISTE VS RALPHS GROCERY COMPANY [E-FILE] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT RALPHS GROCERY COMPANY'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT ('SAC') is SUSTAINED, in part, and OVERRULED, in part.

Defendant RALPHS GROCERY COMPANY ('Defendant') challenges Plaintiff OLLIE KATRINA BAPTISTE's ('Plaintiff') causes of action for invasion of privacy and violations of California's Unfair Competition Law ('UCL') based on privacy violations. As Defendant recognizes, this Court already overruled Defendant's previous demurrer as to the invasion of privacy cause of action. 'A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.' (Code Civ. Proc., § 430.41(b).) Defendant's main argument could have been raised earlier – that Plaintiff did not allege what purchases she made that should be afforded privacy protection. Defendant did not raise it.

In any event, the Court would find that the allegations are sufficient. Plaintiff has alleged tracking of years of shopping data. Interpreting the pleadings with a view towards substantial justice leads to the conclusion that there are inferences to support that Defendant collected and sold data that included private information – the private information could be derived from aggregating data. For example, the pattern of purchasing certain products, such as feminine hygiene products, followed by the cessation of same could reveal private medical information. As this Court previously noted, the questions of whether Defendant is in fact disclosing or selling such information to third parties or whether such conduct is highly offensive to a reasonable person for purposes of supporting an invasion of privacy cause of action is not proper for the demurrer stage. (See, e.g., In re Facebook, Inc. Internet Tracking Litigation (9th Cir.

2020) 956 F.3d 589, 606 ['The ultimate question of whether Facebook's tracking and collection practices could highly offend a reasonable individual is an issue that cannot be resolved at the pleading stage.'].) The demurrer is overruled as to the invasion of privacy cause of action.

The Court granted Plaintiff leave to amend as to the derivative fifth cause of action for 'Violations of Business and Professions Code § 17200 - Invasion of Privacy' as Plaintiff represented that she could amend to plead a benefit-of-the-bargain theory under Moore v. Centrelake Medical Group, Inc. (2022) 83 Cal.App.5th 515. Plaintiff has amended to allege 'Plaintiffs and the Class Members would either have shopped elsewhere, or would not have accepted Defendant's pricing terms, if they had received precollection notice of Defendant's intention to sell Plaintiffs' and Class Members' PII Sensitive and Confidential Data to members of the Non-Governmental Intelligence Community; they have thus been Calendar No.: Event ID:  TENTATIVE RULINGS

2938258  45 CASE NUMBER: CASE TITLE:  BAPTISTE VS RALPHS GROCERY COMPANY [E-FILE]  37-2022-00012259-CU-OE-CTL deprived of the benefit of their bargain in each purchase transaction.' (SAC, ¶ 49.) Defendant argues that the benefit-of-the-bargain must be part of the original agreement. In Moore, the alleged benefit-of-the-bargain was data security for private patient records, in including their personal identifying information, which was part of a contract for medical services. The court rejected the defendants' argument that the data security was incidental to the bargain for medical services. Plaintiff asserts Defendant's argument is similar to the argument asserted by the defendants in Moore. The Court disagrees. Plaintiff does not allege a contract with Defendant that included non-incidental services of maintaining privacy. Importantly, a contract for medical service more clearly involves the need for data security. Medical records are clearly private and merit protection. Whereas grocery shopping does not necessarily involve any private information. Thus, the benefit-of-the-bargain of privacy in this context is much more incidental than is data security in a contract for medical services. More importantly, Plaintiff does not allege any contract with Defendant that included or incorporated some requirement for maintaining data private. The Court agrees Plaintiff lacks standing. The demurrer is sustained as to the UCL claim without leave to amend. The parties' request for judicial notice is granted, except as to the modifications by Plaintiff to the 'Kroger Family of Companies Privacy Notice.' Calendar No.: Event ID:  TENTATIVE RULINGS

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