Judge: Teresa A. Beaudet, Case: 24STCV13458, Date: 2024-10-23 Tentative Ruling

Case Number: 24STCV13458    Hearing Date: October 23, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Rebeka Rodriguez (“Plaintiff”) filed this action on May 30, 2024 against Defendant Angie’s List, Inc., d/b/a www.Angi.com. The Complaint alleges one cause of action for “California Invasion of Privacy Act Penal Code Section 638.51(a).” In the Complaint, Plaintiff alleges, inter alia, that “Defendant has secretly deployed spyware at www.angi.com (the ‘Website’) that accesses visitors’ devices and installs tracking spyware prior to any efforts to obtain consent to do so, and then monitors and reports visitors’ online habits after they leave the Website. Plaintiff recently visited Defendant’s Website. Without Plaintiff’s knowledge or consent, Defendant secretly accessed Plaintiff’s device and installed ‘pen register’ and ‘trap and trace’ tracking software in violation of California law.” (Compl., p. 2:2-7.)

Specially Appearing Defendant Angie’s List, Inc. d/b/a Angi (“Defendant”) now moves

to quash the Service of Summons on the grounds that the Court lacks personal jurisdiction over Defendant. Plaintiff filed a “response in opposition” to the motion. 

Requests for Judicial Notice

The Court denies Defendant’s request for judicial notice filed in support of the motion. The Court denies Plaintiff’s request for judicial notice filed in support of the opposition. The Court also denies Defendant’s request for judicial notice filed in support of the reply. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.) 

Discussion

A.    Legal Standard

Code of Civil Procedure section 418.10 provides in part: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion…(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a).)

“California courts may exercise jurisdiction on any basis that is not inconsistent with the state and federal Constitutions. Thus, the inquiry in California is whether the assertion of personal jurisdiction comports with the limits imposed by federal due process.” ((Young v. Daimler AG (2014) 228 Cal.App.4th 855, 865 [internal quotations and citations omitted].) Due process permits courts to exercise personal jurisdiction over nonresidents who have “minimum contact” with the forum state such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” (Int’l Shoe Co. v. Wash. (1945) 326 U.S. 310, 316.)

“Personal jurisdiction may be either general or specific.” ((Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) “A defendant that has substantial, continuous, and systematic contacts with the forum state is subject to general jurisdiction in the state, meaning jurisdiction on any cause of action.” ((HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.) “General jurisdiction, as its name implies, extends to any and all claims brought against a defendant. Those claims need not relate to the forum State or the defendant’s activity there; they may concern events and conduct anywhere in the world. But that breadth imposes a correlative limit: Only a select set of affiliations with a forum will expose a defendant to such sweeping jurisdiction. In what [the Supreme Court] ha[s] called the paradigm case, an individual is subject to general jurisdiction in her place of domicile. And the equivalent forums for a corporation are its place of incorporation and principal place of business.” (Preciado v. Freightliner Custom Chassis Corp. (2023) 87 Cal.App.5th 964, 976 [internal quotations and references to [Citation.] omitted].)

A nonresident may be subject to specific jurisdiction if a three-prong test is met. “First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.” ((Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1568 [internal citations and emphasis omitted].) “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 449 [internal citations omitted].)

B.    General Jurisdiction

Defendant asserts that it is not subject to general jurisdiction in California. In support of the motion, Defendant submits the Declaration of Ally Armacost, a Product Operations Analyst at Angie’s List, Inc. d/b/a Angi. (Armacost Decl., ¶ 1.) Ms. Armacost states that Angie’s List, Inc. d/b/a Angi “is incorporated in the state of Delaware and has its principal place of business in Indianapolis, Indiana.” (Armacost Decl., ¶ 2.)

Plaintiff submits the declaration of her counsel in support of the opposition, who states that “[a]s of June 29, 2010, Angie’s List, Inc. is registered to do business in the State of California as a foreign entity as reflected by search results of the California Secretary of State’s website at: https://bizfileonline.sos.ca.gov/search/business...It has a registered agent for service of process. Its principal address is 130 E Washington Street, Suite 1100, Indianapolis, Indiana 46204. Attached hereto as Exhibit ‘14’ is a true and correct copy of the California Secretary of State’s website’s webpage at: https://bizfileonline.sos.ca.gov/search/business reflecting the search results of Angie’s List, Inc. on October 8, 2024.” (Ferrell Decl., ¶ 11, Ex. 14.) Plaintiff cites to DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1095, where the Court of Appeal noted that “MedCap and Papworth argue DVI is subject to jurisdiction in California because it registered to do business, maintains an agent for service of process, and has two officers residing in the state. In Gray Line Tours v. Reynolds Electrical & Engineering Co. (1987) 193 Cal. App. 3d 190, 193-194 [238 Cal. Rptr. 419], the court held that designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction except for lawsuits arising out of the foreign corporation’s business conducted in the state.” However, the Court does not find that Defendant has provided evidence showing that the instant action arises out of Defendant’s business conducted in California.

The Court does not find that Plaintiff has shown that Defendant is subject to general jurisdiction in California.

C.    Specific Jurisdiction

            As set forth above, a nonresident may be subject to specific jurisdiction if a three-prong test is met. “First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.” ((Gilmore Bank v. AsiaTrust New Zealand Ltd., supra, 223 Cal.App.4th at p. 1568 [internal citations and emphasis omitted].)

            Defendant asserts that it is not subject to specific jurisdiction in California. As to the first prong, Defendant asserts that “Plaintiff fails to allege an intentional act by Angi expressly aimed at California. Her claims arise out of the alleged collection of her IP address during an intentional visit to Angi’s website as a ‘tester.’” (Mot. at p. 5:9-11.)

In the Complaint, Plaintiff alleges that she “is a resident of California,” and that’s she “is also a consumer privacy advocate who works as a ‘tester’ to ensure that companies abide by the privacy obligations imposed by California law.” (Compl., ¶ 4.) Plaintiff alleges, inter alia, that “[w]hen Plaintiff visited the Website, the Website’s code—as programmed by Defendant— caused the PR/TT[1] beacon to be installed on Plaintiff’s browser. Defendant and the PR/TT beacon’s developer then used the PR/TT beacon to collect Plaintiff’s IP address.” (Compl., ¶ 60.)

            As to the second prong, Defendant asserts that “Plaintiff’s claim does not arise out of or relate to Angi’s forum-related activities.” (Mot. at p. 8:4-5.) Defendant asserts that “Plaintiff’s claim, which is grounded solely in her interaction with Angi’s website as a ‘tester,’ is wholly untethered to any alleged activities by Angi in California.” (Mot. at pp. 8:26-9:2.) Defendant asserts that “Plaintiff would have suffered the same alleged harm in any state in which she visited Angi’s website. The mere fact that she did so in California shows nothing about Angi’s activity within that state.” (Mot. at p. 9:5-7.)

            Defendant also notes that the Complaint alleges that “Defendant generates a minimum of eight percent of revenues from its Website based upon interactions with Californians (including instances in which the Website operates as a ‘gateway’ to sales), such that the website ‘is the equivalent of a physical store in California.’” (Compl., ¶ 2.) Defendant asserts that “Plaintiff also cannot rely on her allegations of California revenue from website sales” to establish the second prong of the specific jurisdiction analysis. (Mot. at p. 9, fn. 5.) Defendant asserts that “nothing in the Complaint shows how such revenue and/or sales relate to Plaintiff’s claims (nor could it).” (Ibid.)

In the opposition, Plaintiff asserts that “the Court should find purposeful direction to Californians because Defendant’s website is interactive and highly commercial.” (Opp’n at p. 8:3-4.) Plaintiff cites to Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 266, where the Court of Appeal found that “[n]ot surprisingly, the so-called Internet revolution has spawned a host of new legal issues as courts have struggled to apply traditional legal frameworks to this new communication medium. Today, we join this struggle and consider the impact of the Internet on the determination of personal jurisdiction. In this case, a California court exercised personal jurisdiction over a defendant based on a posting on an Internet Web site. Under the particular facts of this case, we conclude the court’s exercise of jurisdiction was improper.” The Pavlovich Court further noted that “[a]lthough we have never considered the scope of personal jurisdiction based solely on Internet use, other courts have considered this issue, and most have adopted a sliding scale analysis. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” (Pavlovich v. Superior Court, supra, at page 274 (internal quotations and references to [Citation.) omitted.)

Plaintiff asserts that here, Defendant’s website “offers numerous interactive features and is highly commercial.” (Opp’n at p. 9:5.) In his supporting declaration, Plaintiff’s counsel states that “[t]he website at https://www.angi.com/ (the ‘Website’) allows for online transactions to occur. For example, on October 10, 2024, the Website provided a webpage identifying a service price for ‘Handyman for Multiple Small Projects’ for up to 3 hours at a cost of $291…Such webpage also has a ‘Frequently Asked Questions,’ area at which the webpage contains the question, ‘How does payment work?’ The webpage answers by stating, ‘Your credit card will only be charged after your booking time, though you may see a pending authorization charge on your card today. The Pro will be paid for your booking through Angi. There is no need to pay them separately unless there are additional add-on services/products you agree to with your Pro.’” (Ferrell Decl., ¶ 2, Ex. 1, emphasis omitted.)

Plaintiff’s counsel also states that “users of the Website can sign up for a paid annual membership called ‘Angi Key,’ which costs $29.99 per year, and allows for members to receive 20 percent discounts on ‘hundreds of everyday home projects like handyman services, home cleaning, plumbing, and more[.]’ The bottom footer of the homepage of the Website contains a hyperlink named, ‘How it works,’ which, if clicked, takes the user to the landing page at: https://www.angi.com/how-it-works.htm, which answers certain ‘Common questions’ including the question, ‘Is Angi free to use?’ The Website answers: ‘Yes. You can use Angi and the Angi app to book home services, request project quotes, and research local pros and pricing, all for free. Our revenue comes from two sources: service professionals, who pay to advertise services and discount offers on Angi, and paid memberships, which give homeowners access to discounted home services and more for an annual fee.’ https://www.angi.com/how-it-works.htm (last visited Oct. 8, 2024).” (Ferrell Decl., ¶ 3, Ex. 2, emphasis omitted.)

In addition, Plaintiff’s counsel states in his declaration that “[a]ttached hereto as Exhibit ‘4’ is a true and correct copy of a screenshot of the Website depicting the payment screen at which a user is to input payment card information before a user of the Website pays for a paid annual membership for the Angi Key membership program.” (Ferrell Decl., ¶ 3.) Plaintiff’s counsel further states that “[t]he homepage of the Website has three interactive fillable forms for users to input information. For example, the top of the homepage of the Website contains a search box that invites the user to input information in response to the question, ‘How can we help,’ and the user’s zip code. The middle of the homepage of the Website has a fillable form with the heading, ‘Sign up for free project information,’ which invites the user to input the user’s email address and zip code. The fillable form is followed by a ‘Sign up’ button. The bottom of the homepage of the Website has a fillable form with the heading, ‘Sign up for free project information,’ which invites the user to input the user’s email address and zip code. That fillable form is followed by a ‘Sign up’ button. Attached hereto as Exhibit ‘5’ is a true and correct copy of the homepage of the Website at: https://www.angi.com/ as of October 8, 2024.” (Ferrell Decl., ¶ 4, Ex. 5.)

Despite the information provided by Plaintiff regarding the foregoing features on Defendant’s website, Plaintiff does not appear to claim to have used any of the features. Plaintiff argues that the foregoing features show interactivity, but Plaintiff does not provide evidence that she has used such purported interactive features. In her declaration, Plaintiff simply states that “I have visited the website at https://www.angi.com/ (the ‘Website’) within the past year.” (Rodriguez Decl., ¶ 2.) Moreover, the Complaint does not appear to allege that Plaintiff used any of the features discussed in Plaintiff’s counsel’s declaration. As discussed, Plaintiff must show that “the defendant has purposefully availed himself or herself of forum benefits,” and that “the controversy is related to or arises out of [the] defendant’s contacts with the forum.” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 269 [internal quotations omitted, underline added].)

Plaintiff’s counsel also states that “[a]s of October 8, 2024, the Website has approximately 791 webpages applicable to 791 different cities or other geographic areas located within the state of California advertising or marketing the home services of professionals in such specific California areas. Such California-specific webpages are accessible to a user by clicking on the hyperlink named ‘Sitemap’ in the bottom footer of the homepage of the Website, which takes the user to the landing page at: https://www.angi.com/sitemap-index. Such landing webpage contains state-specific hyperlinks for 50 different ‘Pros’ corresponding with all fifty states in the United States including a hyperlink named ‘California Pros.’ Upon clicking the hyperlink named ‘California Pros,’ the user is taken to a landing page at: https://www.angi.com/sitemap-index/california-pros containing 791 webpages applicable to 791 California areas.” (Ferrell Decl., ¶ 7.) But again, Plaintiff does not claim to have used any of such asserted “California-specific webpages.” As discussed, Plaintiff simply states that she “visited the website at https://www.angi.com/ (the ‘Website’) within the past year.” (Rodriguez Decl., ¶ 2.)

            Plaintiff also asserts that “[s]ales to Californians surely occur as part of Defendant’s regular course of business. Although Defendant has not disclosed its sales revenues generated by its Website, Defendant’s Annual Report discloses that it has earned membership subscription revenue of $52,305,000 in 2023.” (Opp’n at p. 9:17-19, citing Ferrell Decl., ¶ 12.) Plaintiff contends that “[a]ssuming that California residents are members of the Angi Key membership proportionate to their percentage of the U.S. population, Defendant presumably earns about $6 million in subscription revenue from Californians.” (Opp’n at pp. 9:20-10:1.) But as noted by Defendant, Plaintiff appears to ask the Court to “infer” that Defendant made sales to Californians. Plaintiff does not appear to provide any actual evidence of Defendant’s sales to California. And even if such evidence was provided, Plaintiff’s claims in the instant action do not appear to concern any alleged sales to California. Plaintiff does not claim to have purchased anything from Defendant’s website. Thus, it is unclear how the Plaintiff’s claims in this action are “related to or arise[] out of” any purported sales by Defendant to Californians. (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 269 [internal quotations omitted].)

            Plaintiff’s counsel also states that “Defendant’s online Privacy Policy named ‘Angi Privacy Policy,’ available on its Website, version 8.3, which states that it was ‘Effective February 15th 2024 to May 31st 2024,’ which coincides with the time of Plaintiff’s visit to the Website, expressly addresses the rights of Californians under the California Consumer Privacy Act of 2018… as amended by the California Privacy Rights Act of 2020…” (Ferrell Decl., ¶ 8.) Plaintiff surmises, “[w]hy would the Website seek to comply with the CCPA, unless Defendant intended to target the California market?” (Opp’n at p. 13:7-8.) But again, Plaintiff does not appear to provide any evidence that Defendant “targeted” the California market.

In the opposition, Plaintiff also asserts that “Section 502(j) of the Penal Code is relevant.” (Opp’n at p. 17:8.) Penal Code section 502, subdivision (j) provides that “[f]or purposes of bringing a civil or a criminal action under this section, a person who causes, by any means, the access of a computer, computer system, or computer network in one jurisdiction from another jurisdiction is deemed to have personally accessed the computer, computer system, or computer network in each jurisdiction.” Plaintiff assert that “[s]ubdivision (j) makes sense to impose liability against out-of-state or foreign computer hackers and anybody else who gains unauthorized access to a Californian’s computer.” (Opp’n at p. 17:14-15.)

            But as noted by Defendant in the motion, “[w]hile Plaintiff cites to Cal. Penal Code § 502(j), the Comprehensive Computer Data Access and Fraud Act (‘CDAFA’), as grounds for personal jurisdiction in Compl. ¶ 1, she asserts no claims under the CDAFA.” (Mot. at p. 7, fn. 4.) Indeed, Plaintiff acknowledges in the opposition that “the Complaint does not allege a cause of action for violating section 502…” (Opp’n at p. 17:15-16.) As discussed, the Complaint alleges a cause of action for the violation of Penal Code section 638.51, subdivision (a). Thus, the Court does not see how Penal Code section 502, subdivision (j) is relevant here, and Plaintiff does not cite to legal authority to support such proposition.

In the opposition, Plaintiff also contends that “the present action arises out of or relates to Defendant’s forum related activities,” because “[t]he Complaint alleges that ‘Defendant secretly deployed spyware’ at the Website ‘that accesses visitors’ devices and installs tracking software prior to any efforts to obtain consent to do so….’” (Opp’n at p. 20:19-21, citing Compl., p. 2:2-3.) Plaintiff states in her supporting declaration that she has “been a resident of California during all relevant events mentioned in the Complaint in this action,” and that “[a]t all times that [she] used and navigated the Website, [she] was located in the state of California.” (Rodriguez Decl., ¶ 3.) Plaintiff contends that “[i]f Defendant had not engaged in the alleged wrongdoing at issue herein via its Website made available to California residents, Plaintiff’s claims would not have arisen.” (Opp’n at p. 20:24-26.)

But Plaintiff does not appear to provide any evidence that Defendant purportedly “secretly deployed spyware at www.angi.com...that accesses visitors’ devices and installs tracking spyware prior to any efforts to obtain consent to do so…” (Compl., p. 2:2-3.) Rather, Plaintiff relies on allegations of the Complaint. (Opp’n at p. 20:19-22.) The Court notes that “[o]n a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the¿factual bases justifying the exercise of jurisdiction. The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. If the plaintiff meets this burden, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.¿” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210 [internal quotations and citations omitted].)

Based on the foregoing, the Court does not find that Plaintiff has met her burden to show that “the controversy is related to or arises out of [the] defendant’s contacts with the forum.” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 269 [internal quotations omitted].)

D.    Request to Conduct Jurisdictional Discovery

Plaintiff alternatively requests a continuance to conduct jurisdictional discovery. “¿A trial court has discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.¿” (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 30¿; ¿see also Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 533¿, “¿[When] jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that minimum contacts exist between defendant and the forum state to justify imposition of personal jurisdiction. The plaintiff has the right to conduct discovery with regard to the issue of jurisdiction to develop the facts necessary to sustain this burden.”¿ [internal quotations and citations omitted].)

Plaintiff asserts that “[w]hether Defendant has engaged in economic activity within California and/or has solicited business from Californians is relevant under Pavlovich.” (Opp’n at p. 18:16-18.)[2] Plaintiff appears to assert that she is entitled to conduct jurisdictional discovery as to such topics. (Opp’n at p. 18:16.)

In the reply, Defendant cites to In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127, where the Court of Appeal noted that “[a] plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof. In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (Internal citation omitted.) Defendant asserts that here, “Plaintiff requests jurisdictional discovery only related to Angi’s alleged economic activity in the state…Regardless of the extent to which Angi conducts online sales and generates revenue in California, Plaintiff’s claim remains based on her visit to Angi’s available-anywhere website untethered to Angi’s economic activity in California. She offers no explanation for how discovery would likely lead to facts establishing that this Court has jurisdiction over Angi for this specific case.” (Reply at pp. 9:25-10:3.)

However, the Court notes that “¿[a] plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof.¿In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.¿” (¿In re Automobile Antitrust Cases I & II, supra, 135 Cal.App.4th at p. 127 [internal citation omitted, emphasis added]¿.) Plaintiff states in her declaration that “[a]t all times that I used and navigated the Website, I was located in the state of California. As such, the events and allegations giving rise to my Complaint in this action occurred within the state of California.” (Rodriguez Decl., ¶ 3.) Plaintiff should have an opportunity to conduct discovery on such allegations that may affect the question of personal jurisdiction over Defendant.

In light of the foregoing, the Court will continue the hearing on the instant motion to allow Plaintiff to conduct discovery on jurisdictional issues.  

Conclusion

Based on the foregoing, the Court continues the hearing on Defendant’s motion to quash to ________________ at 2:00 p.m. Plaintiff may conduct discovery on jurisdictional issues only. Plaintiff may file a supplemental opposition to the instant motion and Defendant may file a supplemental reply. Any supplemental opposition and reply papers must be filed and served per ¿Code of Civil Procedure section 1005, subdivision (b)¿ based on the new hearing date. 

Defendant is ordered to give notice of this Order. 

DATED:  October 23, 2024                                                                          

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court