ANNETTE CODY v. RING LLC, et al.
Case No. 23-cv-00562-AMO
February 22, 2024
ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Re: Dkt. No. 25, 39
Before the Court is Defendant Ring LLC’s (“Ring“) motion to dismiss and National Retail Federation’s (“NRF“) motion for leave to file amicus curiae brief. The matters are fully briefed and suitable for decision without oral argument. See Civil L.R. 7-1(b). Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, the Court hereby GRANTS Defendant’s motion to dismiss and DENIES NRF’s motion for leave to file amicus brief for the following reasons.
I. BACKGROUND
Defendant Ring manufactures and sells smart home and home security devices.1 ECF 19 (“FAC“) ¶ 5. In September of 2022, Plaintiff Annette Cody (“Cody“) visited Ring’s website through the web browser on her smart phone and had a brief conversation through the chat feature with a customer representative from Ring. Id. ¶ 21.
Ring enables and allows a third party, Kustomer, Inc., a subsidiary of Meta, to intercept chats between customers and Ring. Id. ¶ 10. Kustomer’s application program is “plugged into” Ring’s website. Id. ¶ 11. When chat messages are sent to Ring, they are “first routed through [Kustomer’s]
“Meta identifies ‘user interests’ by monitoring a collection of ‘offsite’ user activity,” then “generates revenue by selling advertising space through its subsidiaries’ ability to identify those offsite user interests,” and finally “after harvesting the chat transcripts for valuable data, Meta’s brands bombard the unsuspecting Website visitors with targeted advertising.” Id. ¶ 15. Kustomer “exploit[s], monetize[es], and use[s]” the data. Id. ¶ 18.
On February 8, 2023, Cody filed a putative class action complaint against Ring and Does 1 through 25. ECF 1. On April 16, 2023, in response to Ring’s first motion to dismiss, Cody filed a first amended complaint alleging two violations of the California Invasion of Privacy Act (“CIPA“),
II. LEGAL STANDARD
Under
If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to amend “when justice so requires.”
III. DISCUSSION
A. Section 631
Ring argues that Cody’s claim under
(1) “by means of any machine, instrument, or contrivance, or in any other matter, intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument“;
(2) “willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message . . . while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state“;
(3) “uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained“; or
(4) “aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section.”
Cody does not dispute that Ring cannot be held directly liable under the first three clauses of
Cody contends that Ring is vicariously liable under the fourth clause of
1. Clause One
Under California law, statutory interpretation “begins with the words themselves, giving them ‘their plain and commonsense meaning,’ because the words of a legal text ‘generally provide the most reliable indicator of [legislative] intent.’” Herrera v. Zumiez, Inc., 953 F.3d 1063, 1071 (9th Cir. 2020) (interpreting a California statute) (citation omitted). The plain terms of
Cody alleges that she used the web browser on a smart phone to access Ring’s website. FAC ¶ 21. Clause one of
Moreover, in recognizing the distinction between the language of clause one and two, courts have applied the second clause to internet communications. See, e.g., Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 8200619, at *18 (N.D. Cal. Aug. 12, 2016) (finding that the “difference in coverage between the first and second clauses suggests that the Legislature intended two separate clauses applying to different types of communications” and that the second clause was not limited to telephone or telegraph communications); Keurig, 2023 WL 3707181, at *3 (analyzing clause two for internet communications).
Plaintiff’s arguments to the contrary are unpersuasive. Cody contends that the first clause applies to cellular phone communications because “cellular phone communications are wire communications for purposes of the federal Wiretap act.” Response at 13 (citing In re United States for an Ord. Authorizing Roving Interception of Oral Commc’ns, 349 F.3d 1132, 1139 (9th Cir. 2003)). While that may be so, Cody alleges that she accessed Ring’s website using the smartphone’s internet capabilities, not its telephonic capabilities. FAC ¶ 21. As the statute only applies to telephone and telegraph technologies, Cody’s claims fail.
Cody also argues that CIPA should be interpreted to apply to new technologies. Response at 14 (citing Apple Inc. v. Superior Ct., 56 Cal. 4th 128, 131 (2013)). However, Cody fails to account for CIPA’s multiple amendments, including in 2011 and 2022, and the Legislature has not updated clause one to include internet technologies. See
Cody next argues that “the California Supreme Court has construed CIPA . . . [to] provide[] the greatest privacy protection.”
2. Clause Two
The second clause of
a. Consent
“Generally, consent must be express, but consent may be implied where there are surrounding circumstances indicating that the defendant knowingly agreed to the surveillance.” United States v. Staves, 383 F.3d 977, 981 (9th Cir. 2004) (citations omitted). Cody alleges that she did not know that Ring was recording her conversation, and that Ring “did not obtain [Cody’s] or the Class members’ express or implied consent” for the intrusions. FAC ¶¶ 23-24. Ring’s arguments to the contrary do not show that Cody consented to being recorded.
Ring argues that Cody “intended to be recorded” because she admits that she acted as a “tester” to see if Ring would record her. ECF 25 at 19. This argument fails. Ring cites no cases indicating that a party’s similar lawsuits against other companies implies consent to being recorded by the company in the instant litigation.
Ring also argues that Cody impliedly consented to her webchats being recorded because she typed out the messages. ECF 25 at 18-19 (citing Smith v. LoanMe, Inc., 11 Cal. 5th 183, 194 n.4 (2021)) (“[t]he circumstances involved with certain kinds of communications may lead to a reasonable inference that a party sending a communication has consented to having it recorded by the intended recipient — recordation would be expected with a facsimile or text transmission, for example“). However, the Court need not rely on the dicta in a footnote in Smith, which assessed whether
Ring also asks the Court to take judicial notice of the privacy notice disclosures on its website to suggest that Cody was aware that Ring would record and analyze her chat transcripts. ECF 25 at 19 (citing ECF 25-1 at 13-18). Even if the Court takes judicial notice of the webpages, Ring fails to cite any cases in which merely having a privacy policy online is sufficient to show consent under CIPA. Ring’s citation to a District of Montana case is not binding and unpersuasive. ECF 25 at 20 (citing Mortensen v. Bresnan Commc’n, LLC, 2010 WL 5140454, at *5 (D. Mont. Dec. 13, 2010)). There, the company informed plaintiffs on three occasions of its monitoring and possible transmission to third parties, including in a privacy notice, an online subscriber agreement specifically stating that accepting the service means agreeing to all the terms, and an opt-out link. Mortensen, 2010 WL 5140454, at *4-5. No such circumstances existed here.
b. Interception
Ring also moves to dismiss on the grounds that Cody fails to satisfy the timing requirement in the second clause. An eavesdropper must listen to a communication “while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state.”
Cody’s conclusory allegations restating the pleading requirement of real-time interception fail to provide specific factual allegations. See Rodriguez v. Google LLC, No. 20-CV-04688-RS, 2022 WL 214552, at *2 (N.D. Cal. Jan. 25, 2022) (“[u]sing the word ‘intercept’ repeatedly is simply not enough without the addition of specific facts that make it plausible Google is intercepting [plaintiff’s] data in transit“). Cody alleges that the third-party software is “plugged into” Ring’s website, so that when a chat message is sent to Ring, it is “first routed through [Kustomer’s] server.” FAC ¶¶ 11-12. These vague allegations fail to explain how the software works or how the interception occurs.2 See, e.g., Quigley v. Yelp, Inc., No. 17-CV-03771-RS, 2018 WL 7204066, at *4 (N.D. Cal. Jan. 22, 2018) (plaintiff failed to plead unlawful interception of communications where he “does not allege with particularity how or when any defendant became aware of his communications“).
In the alternative, Cody argues that the “Second Clause Applies to Intercepted Communications Sent From or Received at Any Place Within California.” Response at 25. However, Cody fails to acknowledge that the key word “while” applies to the entire clause.
c. The Party Exception
Ring additionally argues that Cody’s allegations demonstrate that Kustomer
Some cases have held that software vendors may be considered “extension[s]” of the websites that employ them where the third party only does what the party to the communication directs. See, e.g., Noom, 533 F. Supp. 3d at 832 (distinguishing Moosejaw and In re Facebook because the third parties in those cases “intercepted and used the data” for their own benefit while the third-party vendor in Noom acted as a “tool” allowing Noom to “record and analyze its own data,” and there were “no allegations . . . that [the vendor] intercepted and used the data itself“); see also Williams, 2022 WL 17869275 (“a key distinction [in determining whether the vendor can be considered a third party] is whether or not the alleged third-party software provider aggregates or otherwise processes the recorded information, which might suggest that the software vendor independently ‘uses’ the gathered data in some way“). However, the Court rejects that interpretation of
Thus, the Court must finally determine whether Cody has stated facts supporting Kustomer’s “capability to use its record of the interaction for [another] purpose.” Javier, 649 F. Supp. 3d at 900 (citing Ribas, 38 Cal. 3d at 360-61) (explaining that a company is an “unannounced second auditor” when, unlike a tape recorder, it has an “independent capability to divulge the recording for any other purpose but that of its owner“). Cody’s allegations about the third party’s actions are generalized and vague. Cody alleges that Meta (which owns Kustomer) engages in the practice of “monitoring” user activity, selling advertising space, and “harvesting the chat transcripts for valuable data.” FAC ¶¶ 10, 15. In support of these generalized allegations, Cody alleges that Ring, Kustomer, and Meta all “profit from secretly exploiting the private chat data.” Id. ¶ 17. Cody alleges that Ring “intentionally caused the internet communication” to be recorded by “voluntarily embedding the software code
As Cody has not alleged facts supporting the timing requirement of the second clause and has not alleged that Kustomer has the ability to use its record of the chat for another purpose, she fails to state a claim under the second clause of
3. Clauses Three and Four
In sum, Cody fails to state a claim under the first and second clauses of
B. Section 632.7
Ring also seeks to dismiss Cody’s claim under
without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone . . .
Cody alleges that she used the web browser on her smartphone to access Ring’s website. FAC ¶¶ 4, 21. The fact that she used a smart phone to access the internet does not fit within
Cody asks the Court to “broadly construe” the term ‘landline phone’ in
C. MOTION FOR LEAVE TO FILE AMICUS BRIEF
The National Retail Federation (“NRF“) moves for leave to file an amicus brief. ECF 39. The “classic role” of amicus curiae is to assist a court in a case of public interest by “supplementing the efforts of counsel, and drawing the court’s attention to law that escaped consideration.” Miller-Wohl Co. v. Comm’r of Labor & Indus. State of Mont., 694 F.2d 203, 204 (9th Cir. 1982). It is “within the Court’s discretion” whether to allow amici to file a brief, and courts generally exercise “great liberality” in permitting amicus briefs. California by & through Becerra v. United States Dep‘t of the Interior, 381 F. Supp. 3d 1153, 1164 (N.D. Cal. 2019) (“Becerra“) (citation omitted). Cody objects to the National Retail Federation’s (“NRF“) proposed amicus brief because it echoes arguments in Ring’s motion to dismiss and would prejudice Cody if she were not permitted to respond. ECF 41 at 12-13. “[I]t is inapposite that an amicus brief raises the same issues as the parties’ briefs. The salient question is whether such brief is helpful to the Court.” Becerra, 381 F. Supp. 3d at 1164. In this case, NRF’s brief is not useful to the Court as it provides no additional insight or authorities. Accordingly, the Court DENIES NRF’s motion to file an amicus brief.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s
IT IS SO ORDERED.
Dated: February 22, 2024
ARACELI MARTÍNEZ-OLGUÍN
United States District Judge