Judge: Richard S. Whitney, Case: 37-2023-00013708-CU-CR-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00013708-CU-CR-CTL LICEA VS BOOKS-A-MILLION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT BOOKS-A-MILLION, INC.'S DEMURRER TO PLAINTIFF'S COMPLAINT is SUSTAINED.

Defendant BOOKS-A-MILLION, INC. dba BOOKSAMILLION.COM ('Defendant') asserts Plaintiff MIGUEL LICEA's ('Plaintiff') complaint fails to properly allege any violation under the CALIFORNIA INVASION OF PRIVACY ACT ('CIPA').

Penal Code section 631(a) provides: Any person who, by means of any machine, instrument, or contrivance, or in any other manner, [1] intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or [2] who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or [3] who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or [4] who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, the offense is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.

(Pen. Code, § 631(a) [Clause numbering and bolding added].) 'Subdivision (a) of section 631 prescribes criminal penalties for three distinct and mutually independent patterns of conduct: intentional wiretapping, wilfully attempting to learn the contents or meaning of a communication in transit over a wire, and attempting to use or communicate information obtained as a result of engaging in either of the previous two activities.' (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192.) 'The fourth clause of § 631(a) imputes liability against anyone 'who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of Calendar No.: Event ID:  TENTATIVE RULINGS

2976521  54 CASE NUMBER: CASE TITLE:  LICEA VS BOOKS-A-MILLION INC [IMAGED]  37-2023-00013708-CU-CR-CTL the' other three bases for liability. Cal. Penal Code § 631(a). Thus, while a party to a communication may record the communication without triggering § 631(a) liability, it will be subject to derivative liability where the third party is liable for recording the communications in violation of the first, second or third clauses of § 631(a).' (Martin v. Sephora USA, Inc. (E.D. Cal., Mar. 30, 2023, No. 122CV01355JLTSAB) 2023 WL 2717636, at *12, report and recommendation adopted (E.D. Cal., Apr. 24, 2023, No.

122CV01355JLTSAB) 2023 WL 3061957.) The Court agrees that the first clause of Penal Code section 631(a) does not apply to the internet, such that Plaintiff's allegations of accessing Defendant's website via a smartphone are insufficient. (Williams v. What If Holdings, LLC (N.D. Cal., Dec. 22, 2022, No. C 22-03780 WHA) 2022 WL 17869275, at *2; In re Google Assistant Privacy Litigation (N.D. Cal. 2020) 457 F.Supp.3d 797, 825–826; Licea v. Cinmar, LLC (C.D. Cal., Mar. 7, 2023, No. CV 22-6454-MWF (JEM)) 2023 WL 2415592, at *5.) Therefore, Defendant's liability based on allegedly aiding and abetting 'the Third Party Spyware Company and Meta/Facebook to intercept, eavesdrop upon, learn, share, and monetize the contents of Defendant's chat conversations' depends on whether the second and third clauses of Penal Code section 631(a) were violated.

The second clause of Penal Code section 631(a) requires an attempt to read or learn the information 'while the same is in transit.' The third clause of Penal Code section 631(a) requires use or an attempted use of the information obtained. Plaintiff alleges that '[t]o enable the eavesdropping, Defendant has allowed a third party to covertly embed code into Defendant's chat feature.' (Complaint, ¶ 10.) 'The secret code enables and allows the Third Party Spyware Company to secretly intercept in real time, eavesdrop upon, and store transcripts of Defendant's chat communications with unsuspecting website visitors – even when such conversations are private and personal.' (Complaint, ¶ 11.) 'The chat function is run from the Third Party Spyware's servers but allows for chat functionality on Defendant's Website. In other words, the Third-Party Spyware Company runs the Chat service from its own servers, but customers interact with the chat service on Defendant's Website so it appears to users that they are communicating with a company representative of Defendant.' (Complaint, ¶ 12.) 'The Third Party Spyware Company's chat software is 'integrated' with Meta, Inc./ Facebook. This integration allows various software sub-systems to share data to operate as a unified system.' (Complaint, ¶ 15.) Plaintiff alleges Meta monitors ''offsite' user activity such as website visits and interactions (including private chat communications between Defendant and visitors)' and 'Defendant has secretly installed the Facebook 'pixel' software on its website – a tool widely regarded as spyware – that allows both Defendant and Meta/Facebook to track activities on Defendant's website, including interaction with the chat feature.' (Complaint, ¶ 16.) '[A]fter the chat transcripts intercepted by the Third Party Spyware Company are provided to Meta/Facebook through integration and via the Facebook pixel spyware, Meta/Facebook and others bombard the unsuspecting website visitors with targeted advertising based upon the user's website visits and chat interactions.' (Complaint, ¶ 16.) 'The Third Party Spyware Company's exploitation, monetization, use of, and interaction with the data it gathers through the chat feature in real time makes it more than a mere 'extension' of Defendant.' (Complaint, ¶ 18.) 'Within the last year, Plaintiff visited Defendant's Website. Plaintiff used a smart phone (a cellular telephone with integrated computers to enable web browsing).' (Complaint, ¶ 20.) 'Defendant did not inform Plaintiff that Defendant was secretly allowing, aiding, and abetting the Third Party Spyware Company to intercept and eavesdrop on the conversations during transmission, or that the Third Party Spyware Company provided data from such transcripts to Meta through 'integration' with Meta software.' (Complaint, ¶ 22.) Defendant asserts Plaintiff's allegations are too generalized and that other cases have found them to be inadequate. Plaintiff alleges Third-Party Spyware Company's technology 'enables the Third-Party Spyware Company to analyze and collect customer-support agent interactions in real time to create live transcripts of communications as they occur, among other services.' (Complaint, ¶ 13.) Plaintiff goes on to explain why a company such as Third-Party Spyware Company would want to analyze and collect such data, but the allegations do not state that Plaintiff's chat conversations with Defendant were more Calendar No.: Event ID:  TENTATIVE RULINGS

2976521  54 CASE NUMBER: CASE TITLE:  LICEA VS BOOKS-A-MILLION INC [IMAGED]  37-2023-00013708-CU-CR-CTL than just recorded. Rather, Plaintiff generally alleges 'Defendant violates the third prong, as set forth above, by 'aiding, abetting, and conspiring' with both the Third Party Spyware Company and Meta/Facebook to intercept, eavesdrop upon, learn, share, and monetize the contents of Defendant's chat conversations.' (Complaint, ¶ 25.) This cause of action in part turns on whether Third-Party Spyware Company's recording of any conversations moved beyond mere tape-recording capabilities. '[T]he question is whether the third party has 'the capability to use its record of the interaction for [another] purpose.' Javier, ––– F.Supp.3d at ––––, 2023 WL 114225, at *6 (emphasis in original). An eavesdropper has that capability. A tape-recorder (absent an operator) does not.' (Valenzuela v. Keurig Green Mountain, Inc. (N.D. Cal., May 24, 2023, No. 22-CV-09042-JSC) 2023 WL 3707181, at *4.) Here, Plaintiff does allege such capability. (See Complaint, ¶¶ 15-18, 22, 25, 27-28.) However, as to the third clause, which requires uses or attempted use of the communication, the Court finds the allegations are insufficient. Plaintiff does not allege Third-Party Spyware Company attempted to use Plaintiff's communications with Defendant, but Plaintiff merely alleges facts to support that Third-Party Spyware Company had the capability to do so. The ability to do so does not satisfy the third clause requirements.

Defendant also asserts that the 'in transit' requirement in the second clause has not been met. The Court agrees. Plaintiff alleges that chat messages are 'first routed through the Third-Party Spyware Company's server' and that 'Third-Party Spyware Company runs the Chat service from its own servers, but customers interact with the chat service on Defendant's Website so it appears to users that they are communicating with a company representative of Defendant. (Complaint, ¶¶ 12-13.) The allegations indicate that Third-Party Spyware Company does not intercept communications in transit but causes the communications to be routed directly to Third-Party Spyware Company, in the same way a voicemail could record a message to be listened to at a later time. There are no allegations that Third-Party Spyware Company attempted to read the communications while in transit. Plaintiff's citation to cases outside of the CIPA context is unpersuasive.

Plaintiff asserts the 'Complaint strongly implies that the intercepted communication of Plaintiff was sent from California, which is his state of residence.' However, '[i]n determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law.' (SLPR, L.L.C. v. San Diego Unified Port District (2020) 49 Cal.App.5th 284, 316.) The Court cannot conclude that the intercepted communication was sent from California based on a reasonable implication drawn from the complaint.

In sum, Plaintiff's allegations are insufficient as to Penal Code section 631(a).

Penal Code section 632.7(a) provides: Every person who, without the consent of all of the parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has been convicted previously of a violation of this section or of Section 631, 632, 632.5, 632.6, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(Pen. Code, § 632.7(a).) Penal Code section 632.7(a) 'protects against intentional, nonconsensual recording of telephone conversations regardless of the content of the conversation or the type of Calendar No.: Event ID:  TENTATIVE RULINGS

2976521  54 CASE NUMBER: CASE TITLE:  LICEA VS BOOKS-A-MILLION INC [IMAGED]  37-2023-00013708-CU-CR-CTL telephone involved.' (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776.) Defendant asserts Penal Code section 632.7(a) does not apply to a smartphone accessing a website on the internet. Licea v. Cinmar, LLC (C.D. Cal., Mar. 7, 2023, No. CV 22-6454-MWF (JEM)) 2023 WL 2415592 supports Defendant's position as it considered the same argument. While Plaintiff asserts Cinmar relies upon post-enactment events to surmise Legislative intent, the court explicitly stated '[b]ecause the statute is unambiguous, it is not necessary for this Court to look to the legislative history.' (Licea v. Cinmar, LLC (C.D. Cal., Mar. 7, 2023, No. CV 22-6454-MWF (JEM)) 2023 WL 2415592, at *12.) The Court agrees with Cinmar that the plain language of Penal Code section 632.7(a) does not include internet communications and Cinmar's interpretation comports with the California Supreme Court's decision in Flanagan.

In sum, the demurrer is sustained in its entirety. Plaintiff has the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, '[u]nless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.' (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303–304.) Plaintiff has not met his burden as to second cause of action.

The face of the complaint does not indicate amendment is possible as to the second cause of action.

However, the face of the complaint does not indicate amendment is not possible as to the first cause of action. This is Plaintiff's first attempt at drafting the complaint. Therefore, the Court grants Plaintiff ten (10) days leave to amend as to the first cause of action, but not the second cause of action. Plaintiff's requests for judicial notice are granted to the extent permissible.

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