Judge: Virginia Keeny, Case: 24STCV29827, Date: 2025-04-30 Tentative Ruling

Case Number: 24STCV29827    Hearing Date: April 30, 2025    Dept: 45

TANYA CANTU vs ONEPLUS USA CORP.

 

demurrer with motion to strike

 

Date of Hearing:        April 30, 2025                                     Trial Date:       None set.

Department:              45                                                        Case No.:        24STCV29827

 

Moving Party:            Defendant OnePlus USA Corp.

Responding Party:     Plaintiff Tanya Cantu

Meet and Confer:      Yes. (Chang Decl.)

 

BACKGROUND

 

On November 12, 2024, Plaintiff Tanya Cantu filed a complaint against OnePlus USA Corp. for Violation of California Invasion Privacy Act. Plaintiff alleges Defendant secretly deployed a de-anonymization process to identify and track Plaintiff using electronic impulses generated from Plaintiff’s device, which are a violation of California’s Trap and Trace Law.

 

[Tentative] Ruling

 

Defendant OnePlus USA Corp.’s Demurrer to the Complaint is OVERRULED. Defendant OnePlus USA Corp.’s Motion to Strike is GRANTED WITH LEAVE TO AMEND.

 

REQUEST FOR JUDICIAL NOTICE

 

Defendant OnePlus USA Corp. requests this court take judicial notice of the screenshot of the Landing Page of OnePlus’ website; the screenshot of the Website’s pop-up banner requesting users to consent to the use of cookies and other tracking technologies; the screenshot of the Website’s pop-up “Manage Cookies” banner requesting users to select which cookies and tracking technologies they will allow;  OnePlus’s Cookie Policy; OnePlus’s Privacy Policy; the court order issued in Casillas v. Transitions Optical, Inc., 2024 WL 4873370; the court order issued in Rodriguez v. Plivo Inc., 2024 WL 5184413; and the court order issued in Rodriguez v. Fountain9, Inc., 2024 WL 4905217.

 

Plaintiff objects to the request for judicial notice on the grounds the requests are irrelevant to deciding the instant demurrer. The court agrees. The court DENIES Defendant’s request for judicial notice.

 

In opposition, Plaintiff requests this court take judicial notice of Senate Committee on Public Safety Bill Analysis of Apr. 12, 2010 for Senate Bill No. 1428 (2009-2010 Regular Session); Assembly Committee on Public Safety Bill Analysis of June 21, 2010 for Senate Bill No. 1428 (2009-2010 Regular Session); and First Amended Class Action Complaint filed on November 21, 2022 in Greenley v. Kochava, Inc., No. 3:22-cv-01327-BAS-AHG (S.D. Cal.).

 

The court GRANTS judicial notice. As for Exhibit 3, the court only takes judicial notice of its existence and not the facts of the complaint.

 

DISCUSSION

 

Defendant OnePlus USA Corp. demurs to Plaintiff’s complaint on the grounds Plaintiff cannot state a claim for violation of California Penal Code section 638.51 on the grounds Plaintiff expressly and impliedly consented to the use of the software at issue; Plaintiff has no injury-in-fact; and the software is used to operate, maintain, and test OnePlus’s website.

 

Section 638.51 prohibits the use of pen registers and trap and trace devices, which are “device[s] or process[es]” that record or capture “dialing, routing, addressing, or signaling information” from a “wire or electronic communication,” “but not the contents of a communication.” (Penal Code §§ 638.50(b)–(c); 638.51.) To state a claim under § 638.51, a plaintiff must allege that a defendant installed and used a pen register or trap and trace device without first obtaining a court order.  (Id. § 638.51.) 

 

Defendant OnePlus first argues Plaintiff is precluded from bringing a claim under Section 638.51 because she expressly consented to use of the TikTok Software before any of her information was allegedly captured. Specifically, the complaint alleges that Plaintiff visited Defendant’s website and includes a screenshot of the website, which has a Cookie Banner in the background. Defendant maintains this Cookie Banner contradicts Plaintiff’s allegations that Defendant did not obtain express or implied consent. Moreover, Defendant argues Plaintiff has not sufficiently alleged she rejected the use of cookies and by failing to reject, Plaintiff consented to the TikTok Software. 

 

The court disagrees. The complaint alleges Defendant did not obtain Plaintiff’s express or implied consent to be subjected to data sharing with TikTok for the purposes of fingerprinting and de-anonymization. (Compl. ¶25.) Defendant is asking the court to go beyond the face of the complaint and determine that Plaintiff did consent as a matter of law. While the Cookie Banner is part of the complaint, the complaint also alleges the TikTok Software begins to collect information the moment a user lands on the Website before any pop-up or cookie banner advises users of the invasion or seeks their consent. (Compl. ¶16.) These allegations are sufficient for the purposes of a demurrer.

 

Next, Defendant argues Plaintiff is further precluded from bringing a claim under Section 638.51 because as the “provider of electronic or wire communication,” OnePlus is allowed to use the TikTok Software (i.e., the pen register or trap and trace device) to operate, maintain, and test a wire or electronic communication service.

 

In opposition, Plaintiff argues they have sufficiently alleged that Defendant is not an ECS provider. That is, Defendant does not serve as a conduit for the transmission of electronic communications from one user to another. The Complaint alleges instead that Defendant “sells electronics and accessories to customers.” (Compl. ¶ 12.)

 

The demurrer is overruled on this ground. As alleged, it cannot be determined that Defendant is exempt from liability under Section 638.51 and Defendant has not provided any judicially noticed documents that Defendant is exempt.   

 

Lastly, Defendant demurs to the complaint on the grounds Plaintiff fails to allege an injury-in-fact and has no standing. Defendant argues Plaintiff makes no allegations of injury, only that CIPA imposes civil liability and statutory penalties for violations of Section 638.51 and that she and other class members are entitled to relief. Moreover, Plaintiff fails to adequately plead the element of causation given the facts alleged.

 

The court disagrees. The complaint does not only allege a violation of privacy by collecting Plaintiff’s IP address. The complaint alleges 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. ¶14.) California opinions confirm that CIPA authorizes statutory damages “for each violation of the Privacy Act despite a party's inability to prove actual injury” beyond a simple violation of the statute that impacts the plaintiff. (Ribas v. Clark (1985) 38 Cal.3d 355, 365.)

 

Accordingly, the court OVERRULES the demurrer to the complaint.

 

Motion to Strike

 

Defendant OnePlus moves the court for an order striking certain allegations from Plaintiff’s complaint concerning Plaintiff’s class member allegations and request for attorney fees. Defendant makes the motion on the grounds the class member allegations are irrelevant and improper in a complaint filed by an individual plaintiff, and Plaintiff has failed to allege any established California law or sufficient facts for recovery of attorney fees under California Penal Code section 638.51.

 

Although a typographical error according to Plaintiff, the court strikes Plaintiff’s allegations regarding class actions as irrelevant matter. Moreover, the court agrees the complaint fails to allege a basis for attorney fees. Although Plaintiff argues they seek attorney fees pursuant to Code of Civil Procedure section 1021.5, it is not alleged in the complaint.

 

Accordingly, the court GRANTS Defendant’s motion to strike with leave to amend.

 

 




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