Judge Upinder S. Kalra, Case Number: 24STCV13922, Date: 2024-12-17 Tentative Ruling

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On June 3, 2024, Plaintiff Karla Huff (Plaintiff) filed a Complaint against Defendant Wilson Sporting Goods Co. (Defendant) with one cause of action for Violations of the California Trap and Trace Law (Cal. Penal Code § 638.51).

According to the Complaint, Plaintiff visited Defendant’s website on January 9, 2024 and Defendant deployed software created by TikTok to uncover Plaintiff’s identity. Plaintiff alleges this software is a trap and trace device.

On August 22, 2024, Defendant filed the instant demurrer. On December 4, 2024, Plaintiff filed an opposition.[1] On December 10, 2024, Defendant filed a reply.

The court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication or a special motion to strike (CCP § 437c (q); CCP § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.) The court respectfully declines to rule on any of these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).

Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)¿

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)¿

First Cause of Action - California Invasion of Privacy Act, Penal Code § 638.51

Defendant contends that Plaintiff insufficiently alleged that Defendant deployed a trap and trace device and insufficiently alleged non-consent. Plaintiff argues she sufficiently alleged a claim and alleged she did not consent to TikTok obtaining her information from Defendant’s website. Specifically, Plaintiff argues that Defendant improperly adds requirements to the statute that do not exist, that she alleged use of software rather than use of cookies, that she did not allege the software is a pen register device, and that she alleges she did not consent to the taking of her information. Defendant replies the legislative history supports their interpretation that CIPA does not apply to the act of visiting a website and that Plaintiff did not allege how Defendant did not obtain her consent.

CIPA § 638.51(a) provides: “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(a).) Consent of the user is an absolute defense. (Id. at subd.(b)(5).)

Penal Code section 638.50 defines a trap and trace device as “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.)

Upon reviewing the Complaint, Plaintiff insufficiently alleged a claim for violation of Penal Code § 638.51. First, Plaintiff did sufficiently allege she did not consent. (Complaint ¶¶ 19, 21, 27.) Second, as alleged, the TikTok Software falls within the plain meaning of a “trap and trace” device as defined under Penal Code section 638.50. The statute defines a trap and trace devices as “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, subd. (c).) An electronic communication is further defined as “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.” (Pen. Code, § 629.51, subd. (a)(2).) Plaintiff’s allegations fall within the plain meaning of the statute: Plaintiff has alleged that the TikTok software is a device that captures incoming electronic impulses that are reasonably likely to identify the source of an electronic communication, including device, browser, and geographic information. (Complaint ¶¶ 11-15, 17.) Plaintiff has sufficiently pled the first element of a violation of the Trap and Trace Law.[2] However, Plaintiff did not allege that Defendant acted “without first obtaining a court order.”

1. Demurrer to the Complaint is SUSTAINED with leave to amend; within 21 days of this ruling.

[1]Here, Plaintiff quoted extensively from a Los Angeles Superior Court trial court order. This is prohibited. California Rule of Court, rule 8.115(b), prohibits citing or relying on unpublished decisions except for reasons not applicable here. Second, “A written trial court ruling in another case has no precedential value. ” (Budrow v. Dave & Buster’s of California (2009) 171 Cal.App.4th 875, 885; Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761; In re Molz (2015) 127 Cal.App.4th 836, 845; Santa Ana Medical Hospital Center v. Belshé (1997) 56 Cal.App.4th 819, 831.) Plaintiff’s malfeasance is not isolated. This has become a disturbing practice by practitioners since legal research websites began “publishing” superior court orders. The fact that a superior court order is easily searchable and found on the internet does not magically transform the order into a published decision that can be cited or relied upon as authority. The parties are warned. If this forbidden practice persists, the court will issue an order to show cause on why sanctions should not be imposed.

[2] Whether visiting a website is not two-way communication is a factual dispute more appropriately resolved at summary judgment.