Judge: Teresa A. Beaudet, Case: 24STCV14270, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCV14270    Hearing Date: January 21, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On June 6, 2024, Plaintiff Matthew Sorensen (“Plaintiff”) filed this action against Defendant Pacific Sunwear of California, LLC (“Defendant”). The Complaint alleges one cause of action for “Violations of the California Trap and Trace Law.”

In the Complaint, Plaintiff alleges, inter alia, that “Pacific Sunwear of California, LLC manufactures and sells men, women, unisex, and kids apparel and accessories. Defendant operates https://www.pacsun.com (the ‘Website’). Defendant has installed on its Website software created by TikTok in order to identify website visitors (the ‘TikTok Software’).” (Compl., ¶ 11.) Plaintiff alleges that “[t]he TikTok Software acts via a process known as ‘fingerprinting.’…the TikTok Software collects as much data as it can about an otherwise anonymous visitor to the Website and matches it with existing data TikTok has acquired and accumulated about hundreds of millions of Americans.” (Compl., ¶ 12.) Plaintiff alleges that “[t]he TikTok Software runs on virtually every page of Pacific Sunwear’s website” and that “[t]he Pacific Sunwear website instantly sends communications to TikTok when a user lands, and every time a user clicks on a page.” (Compl., ¶¶ 16-17.)

Plaintiff now moves “for an order granting preliminary injunction [sic] against [Defendant] to (1) enjoin Defendant from using the TikTok Software, and (2) for an order that Defendant disgorge data related to Plaintiff that Defendant provided to TikTok through its deployment of the TikTok Software.” Defendant opposes.

Evidentiary Objections

The Court rules on Defendant’s evidentiary objections to the Declaration of Robert Tauler filed with the motion as follows:

Objection No. 1: sustained

Objection No. 2: sustained

Objection No. 3: sustained

Objection No. 4: sustained

Objection No. 5: sustained. As noted by Defendant, the “Expert Report of David Zagardo” is not signed. (See Tauler Decl., ¶ 6, Ex. E.) “[Code of Civil Procedure] section 2015.5…defines a ‘declaration’ as a writing that is signed, dated, and certified as true under penalty of perjury.” ((Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.)

Objection No. 6: sustained  

The Court rules on Defendant’s evidentiary objection to the Declaration of Matthew Sorensen as follows:

Objection No. 1: overruled

The Court rules on Defendant’s evidentiary objections to the Declaration of Robert Tauler filed with the reply as follows:

Objection No. 1: sustained. As noted by Defendant, “¿[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.)

In light of the foregoing, Defendant’s Objections Nos. 2-4 are moot.

Discussion

“In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.” ((Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177 [internal quotations omitted].) “[A]n order granting or denying a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. Its purpose is to preserve the status quo until the merits of the action can be determined.” ((White v. Davis (2003) 30 Cal.4th 528, 554 [emphasis omitted].)

“The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other….” ((Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251-1252.) “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” ((White v. Davis, supra, 30 Cal.4th at p. 554 [emphasis omitted].) The burden is on the party seeking injunctive relief to show all elements necessary to support issuance of a preliminary injunction. ((O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

A.    Likelihood of Success on the Merits

A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.” ((San Francisco Newspaper Printing Co. v. Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442.) The “likelihood of success on the merits and the balance-of-harms analysis are ordinarily ‘interrelated’ factors in the decision whether to issue a preliminary injunction.” ((White v. Davis, supra, 30 Cal.4th at p. 561.) “The presence or absence of each factor is usually a matter of degree, and if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in his favor.” ((Ibid.) However, this does not mean that a trial court may grant a preliminary injunction on the basis of the likelihood-of-success factor alone when the balance of hardships dramatically favors denial of a preliminary injunction. (Ibid.) 

As set forth above, the sole cause of action alleged in the Complaint is for “Violations of the California Trap and Trace Law… Cal. Penal Code § 638.51.” Penal Code section 638.50, subdivision (c) provides that “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.” Penal Code section 638.51, subdivision (a) provides that “[e]xcept 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.”

In the first cause of action, Plaintiff alleges that “Defendant uses a trap and trace process on its Website by deploying the TikTok Software on its Website, because the software is designed to capture the phone number, email, routing, addressing and other signaling information of website visitors. As such, the TikTok Software is solely to identify [sic] the source of the incoming electronic and wire communications to the Website…Defendant did not obtain consent from Plaintiff before using trap and trace technology to identify users of its Website, and has violated Section 638.51.” (Compl., ¶¶ 28-29.)

Plaintiff cites to Penal Code section 637.2, subdivision (b), which provides that “[a]ny person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).” Plaintiff asserts that he is “likely to prevail on the merits of his claim against Defendant for violation of CIPA.” (Mot. at p. 5:24-25.) First, Plaintiff argues that “it has already been determined that the TikTok Software can be a trap and trace device.” (Mot. at p. 5:26-27.) But in support of this assertion, Plaintiff cites to Moody v. C2 Educ. Sys. (C.D.Cal. July 25, 2024, No. 2:24-cv-04249-RGK-SK) 2024 U.S.Dist.LEXIS 132614, a non-binding federal district court case.

Next, Plaintiff argues that “[a]s the Expert Report of David (Zagardo [sic] explains, a step-by-step technical analysis demonstrates that the TikTok Software, as it appears on the Website, is a ‘trap and trace device’ under Penal Code § 638.50(c)…” (Mot. at p. 6:10-12.) However, as set forth above, the Court sustains Defendant’s evidentiary objection to the “Expert Report of David Segardo.” (See Defendant’s Evidentiary Objection No. 5.) The “Expert Report of David Zagardo” consists of, inter alia, “testimony” from Mr. Zagardo. (Tauler Decl., ¶ 6, Ex. E.) However, as noted by Defendant, the report is not signed, and it is not made under penalty of perjury. As set forth above, “[Code of Civil Procedure] section 2015.5…defines a ‘declaration’ as a writing that is signed, dated, and certified as true under penalty of perjury.” (Kulshrestha v. First Union Commercial Corp., supra, 33 Cal.4th at p. 606.) This issue does not appear to be addressed by Plaintiff in the reply.

In light of the foregoing, the Court does not find that Plaintiff has demonstrated a likelihood of success on the merits. The Court notes that “[a] trial court may not grant a [restraining order], regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” ((Church of Christ in Hollywood v. Superior Court, supra, 99 Cal.App.4th at p. 1252.)

B.    Interim Harm to the Parties

“To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.” ((White v. Davis, supra, 30 Cal.4th at p. 554.) “In evaluating interim harm, the trial court compares the injury to the plaintiff in the absence of an injunction to the injury the defendant is likely to suffer if an injunction is issued.” ((Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.)

Plaintiff argues that “a balancing of hardships favors a preliminary injunction.” (Mot. at p. 7:17-28.) Plaintiff notes that in IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 70, the California Supreme Court found that “[t]he County properly points out that once a trial court has determined that the governmental entity will probably succeed at trial in proving a statutory violation, the court is justified in presuming that public harm will result if an injunction is not issued.” But here, the Court does not find that Plaintiff has demonstrated that he will probably succeed at trial in proving a statutory violation.

Plaintiff also argues in the motion that he “will continue to suffer interim harm, specifically an invasion of his privacy, if the Court does not order Defendant to cease sending Plaintiff’s identifiable information to TikTok.” (Mot. at p. 8:21-22.) But Plaintiff does not appear to provide any evidence to support this assertion. Plaintiff’s declaration in support of the motion simply provides that “I visited Defendant’s website www.pacsun.com on March 1, 2024. I did not consent to any tracking by TikTok when I visited…I would like to visit the website in the future, but I do not wish to be tracked by TikTok if and when I do.” (Sorensen Decl., ¶¶ 2-3.) Plaintiff also contends that “[o]nce Defendant unlawfully discloses Plaintiff’s data, TikTok will store and use it to further build an extensive profile on Plaintiff—an injury to Plaintiff that cannot be undone.” (Mot. at p. 8:23-25.) But again, Plaintiff does not cite any evidence to support this argument. 
            Based on the foregoing, the Court does not find that Plaintiff has demonstrated that he will suffer irreparable injury or interim harm if an injunction is not issued pending an adjudication of the merits.

Conclusion

Based on the foregoing, .Plaintiff’s motion for preliminary injunction is denied

Defendant is ordered to provide notice of this ruling. 

DATED:  January 21, 2025                           

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court