Rosolowski v. Guthy-Renker LLC
230 Cal. App. 4th 1403
Cal. Ct. App.2014Background
- Plaintiffs (Greg Rosolowski et al.) sued Guthy-Renker alleging unsolicited commercial emails used "From" header names like “Proactiv Special Offer” and “Wen Hair Care” that were not traceable to Guthy via WHOIS and had subject lines promising free gifts without disclosing purchase conditions.
- Emails attached to the complaint included bodies that linked to Guthy’s website, contained unsubscribe notices, and listed a Palm Desert physical address; the bodies disclosed that free gifts/shipping were conditional on purchase.
- Guthy demurred, arguing plaintiffs’ claims under Cal. Bus. & Prof. Code § 17529.5(a)(2) (falsified/misrepresented header information) and (a)(3) (misleading subject line) failed, and that the federal CAN‑SPAM Act preempted any state claim unless falsity/deception was shown.
- The trial court sustained the demurrer without leave to amend, finding (1) header names that use product/brand names instead of the corporate name are not materially misleading where the body identifies the sender, and (2) subject lines were not likely to mislead because the email bodies made the conditional nature of offers clear.
- The Court of Appeal affirmed, holding no viable causes of action were pleaded under § 17529.5(a)(2) or (a)(3); it declined to reach federal preemption because plaintiffs failed to state statutory violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether header information violated § 17529.5(a)(2) by misrepresenting sender identity | Header "From" names were not traceable via WHOIS and thus misrepresented/ concealed Guthy’s identity | Using product or brand names in the header is not a misrepresentation when the email body identifies Guthy and provides links/address | Header did not violate (a)(2); sender identity was ascertainable from the email body, so no misrepresented header information |
| Whether subject lines violated § 17529.5(a)(3) by misleading recipients about free gifts | Subject lines promising free gifts were misleading because they omitted that gifts required purchase | Subject lines, read together with the email body, accurately and conspicuously disclosed conditions; a reasonable recipient would not be misled | Subject lines were not likely to mislead a reasonable recipient about material facts; no (a)(3) violation |
Key Cases Cited
- Kleffman v. Vonage Holdings Corp., 49 Cal.4th 334 (Cal. 2010) (use of multiple, accurate, traceable domain names is not necessarily a misrepresentation under § 17529.5(a)(2))
- Balsam v. Trancos, Inc., 203 Cal.App.4th 1083 (Cal. Ct. App. 2012) (untraceable or fictitious domain names created to conceal sender can constitute falsified or misrepresented header information)
- Hypertouch, Inc. v. Valueclick, Inc., 192 Cal.App.4th 805 (Cal. Ct. App. 2011) (subject lines that create an impression of an easily obtained free gift can be misleading if the body reveals materially different terms)
- Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009) (discusses WHOIS as a public database for tracing domain registrants in the context of spam litigation)