Kieren Kishnani v. BB OpCo, LLC — Entry #25: REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint 21 filed by Defendant BB OpCo, LLC

Case 2:24-cv-09629-ODW-JC         Document 25 Filed 03/03/25       Page 1 of 16 Page ID
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 1   BLANK ROME LLP
 2
     Ana Tagvoryan (SBN 246536)
     ana.tagvoryan@blankrome.com
 3   Victor Sandoval (SBN 344461)
 4   Victor.sandoval@blankrome.com
     2029 Century Park East | 6th Floor
 5   Los Angeles, CA 90067
 6   Telephone: 424.239.3400
     Facsimile: 424.239.3434
 7
     Attorneys for Defendant
 8   BB OpCo, LLC
 9

10                          UNITED STATES DISTRICT COURT
11                        CENTRAL DISTRICT OF CALIFORNIA
12

13   KIEREN KISHNANI, individually and             Case No. 2:24−cv−09629-ODW-JC
     on behalf of all others similarly situated,
14                                                 DEFENDANT BB OPCO LLC’S
                                Plaintiff,
15                                                 REPLY IN SUPPORT OF MOTION
           v.                                      TO DISMISS PLAINTIFF’S
16                                                 AMENDED COMPLAINT
     BB OPCO, LLC
17   d/b/a Brooks Brothers, a Connecticut
     limited liability company, and DOES 1         Judge:   Otis D. Wright II
18   though 25, inclusive,                         Date:    March 17, 2025
                                                   Time:    1:30 p.m.
19                              Defendants.        Place:   Courtroom 9C, 350 W. 1st
                                                            Street, Los Angeles, California
20                                                          90012

21                                                 Complaint Filed: November 7, 2024
22                                                 Complaint Served: November 12, 2024
                                                   Amended Complaint Filed: January 16,
23                                                 2025
24                                                 Trial Date: None set

25

26

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28                     DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1                                           TABLE OF CONTENTS
 2

 3   I.     INTRODUCTION ................................................................................................ 6
 4   II.    PLAINTIFF LACKS ARTCILE III AND STATUTORY STANDING TO
 5          PURSUE HER CLAIMS...................................................................................... 7

 6   III.   PLAINTIFF FAILS TO PLEAD A TRAP AND TRACE DEVICE. .................. 8
 7   IV.    PLAINTIFF FAILS TO PLEAD A QUALIFYING TELEPHONE LINE........ 11
 8
            A.      To The Extent the Statute Is Ambiguous, Legislative History
 9                  Supports Defendant’s Position. ................................................................ 12
10   V.     PLAINTIFF FAILS TO PLEAD BB OPCO INSTALLED THE TIKTOK
11          PIXEL IN CALIFORNIA .................................................................................. 13

12   VI.    THERE IS NO PRIVATE RIGHT OF ACTION. ............................................. 14
13   VII. IN THE ALTERNATIVE, BB OPCO 21 IS AN ELECTRONIC
14        COMMUNICATION SERVICES PROVIDER. ............................................... 15

15

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17

18

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28                        DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1
                                             TABLE OF AUTHORITIES

 2                                                                                                                     Page(s)
 3   Cases
 4
     Casillas v. Transitions Optical, Inc. I
 5     (Super. Ct. L.A. Cty., April 23, 2024 Minute Order, No.
       23STCV30742) .......................................................................................................... 9
 6

 7   Casillas v. Traveler’s Choice
       (Super. Ct. L.A. Cty., May 29, 2024 Minute Order, No.
 8     24STCV01337) .......................................................................................................... 9
 9
     Casillas v. Traveler’s Choice Travelware
10     (LA. Sup. Ct. 24STCV01337) ................................................................................. 16
11   Columbia Pictures Indus. v. Bunnell,
12     2007 WL 2080419 (C.D. Cal 2007) .......................................................................... 9

13   Daghaly v. Bloomingdales.Com, LLC,
       2024 WL 5134350 (9th Cir. Dec. 17, 2024).......................................................... 6, 7
14

15   Dana Hughes v. Vivint, Inc., et al.,
       2024 WL 5179917 (C.D. Cal. Aug. 5, 2024) ............................................................ 6
16
     Earll v. eBay, Inc.,
17
       599 F. App’x 695 (9th Cir. 2015) ............................................................................ 14
18
     Eng. v. Gen. Dynamics Mission Sys., Inc.,
19     2019 WL 2619658 (C.D. Cal. May 8, 2019), aff’d, 808 F. App’x 529
20     (9th Cir. 2020) ......................................................................................................... 14

21   Hanley v. Int’l Ass’n of Machinists & Aerospace Workers,
       2022 WL 2117805 (C.D. Cal. June 1, 2022) ........................................................... 15
22

23   Heiting v. Taylor Fresh Foods, Inc.
       (July 28, 2024) L.A. Sup Court Case No. 24STCV12891 ...................................... 11
24
     Limon v. Circle K Stores Inc.,
25
        84 Cal. App. 5th 671 (2022) ...................................................................................... 7
26

27
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28                            DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1
     Moody v. C2 Educ. Sys. Inc.,
       742 F. Supp. 3d 1072 (C.D. Cal. 2024) ......................................................... 9, 10, 11
 2
     Norwest Mortg., Inc. v. Superior Ct.,
 3
       72 Cal. App. 4th 214 (1999) .................................................................................... 14
 4
     People v. Giordano,
 5     42 Cal. 4th 644 (2007) ............................................................................................... 8
 6
     Perfect 10, Inc. v. Yandex N.V.,
 7      962 F. Supp. 2d 1146 (N.D. Cal. 2013)................................................................... 14
 8   SeeRules and Policies Regarding Calling No. Identification Serv.—
 9      Caller ID,
        9 F.C.C. Rcd. 1764 (1994)....................................................................................... 16
10
     Shah v. Fandom, Inc.,
11
        No. 24-cv-01062, 2024 WL 4539577 (N.D. Cal. Oct. 21, 2024)........................ 9, 10
12
     Sullivan v. Oracle Corp.,
13      51 Cal. 4th 1191 (2011) ........................................................................................... 14
14
     TransUnion LLC v. Ramirez,
15      594 U.S. 413 (2021)................................................................................................... 7
16   Vicko Ins. Services v. Ohio Indem. Co.,
17      70 Cal.App.4th 55 (1999) ........................................................................................ 16

18   Statutes
19   Cal. Civ. Code § 1798.100-1798.199.100 .................................................................... 13
20
     Cal Pen. Code 638.50(c) ............................................................................................... 10
21
     Cal. Pen. Code
22      § 637.2 ................................................................................................................. 7, 16
23      § 638.55 ................................................................................................................... 16
24   Cal. Penal Code §§ 629.51, 638.50 .............................................................................. 12
25   Cal. Penal Code § 629.51(a)(2)(C) ................................................................................. 8
26
     Cal. Penal Code § 630................................................................................................... 10
27
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 1
     Cal Penal Code § 638.51........................................................................................ passim

 2   Cal. Penal Code § 638.52(d)(1) .................................................................................... 11
 3   California Consumer Privacy Act ................................................................................. 13
 4
     CCPA ............................................................................................................................ 13
 5
     Copyright Act................................................................................................................ 14
 6
     Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510
 7
        (1986) ....................................................................................................................... 12
 8
     Trap and Trace Laws ............................................................................................. passim
 9
     Other Authorities
10

11   U.S. Constitution Article III ....................................................................................... 6, 7

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
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28                             DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   I.       INTRODUCTION
 2            Plaintiff’s Opposition to BB OpCo’s1 Motion to Dismiss (the “Motion”) only
 3   confirms that her theory is deficient as a matter of law. Plaintiff’s claim that the
 4   TikTok software installed on BB OpCo’s website is a trap and trace used in violation
 5   of California’s criminal laws is not supported by any facts. More fundamentally, the
 6   Trap and Trace Laws do not and cannot apply to the website software at issue, as both
 7   the legislative history and statutory text confirm.           Plaintiff spends much of her
 8   Opposition accusing BB OpCo of “speculation” for simply identifying the myriad
 9   defects in Plaintiff’s pleading. This includes that Plaintiff did not even try to plead that
10   the TikTok software captured dialing, routing, or signaling information reasonably
11   likely to identify the source of a communication—the very essence of trap and trace
12   device. See Cal Penal Code § 638.51.
13            Moreover, Plaintiff urges the Court to ignore the statutory text and legislative
14   history’s repeated reference to telephone lines and the absurd results that would ensue
15   if court orders were required to implement standard website analytics tools.
16            In addition, Plaintiff is precluded from pursuing her claims because she
17   improperly attempts to apply CIPA extraterritorially to BB OpCo, a Connecticut LLC
18   that is not alleged to have engaged in any conduct in California. On this issue,
19   Plaintiff nonsensically claims only Plaintiff’s conduct is relevant in direct
20   contravention of well settled California law. As to CIPA’s private right of action,
21   Plaintiff is simply wrong that it applies to the Trap and Trace Laws implemented
22   three-decades after CIPA’s initial enactment, which make no reference to CIPA’s
23   private right of action and has it own enforcement provisions.
24            Finally, the Amended Complaint fails for a fundamental threshold defect.
25   Plaintiff does not have Article III standing to pursue her claims. Plaintiff does not and
26

27   1
         Defined terms have the same meaning as defined in BB OpCo’s opening motion.
                                                    6
28                        DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   cannot explain any concrete injury caused by her visit to BB OpCo’s website, and she
 2   ignores the multiple authorities in this District and this Circuit that have dismissed
 3   effectively identical claims for lack of standing. See, e.g., Dana Hughes v. Vivint, Inc.,
 4   et al., 2024 WL 5179917 (C.D. Cal. Aug. 5, 2024); Daghaly v. Bloomingdales.Com,
 5   LLC, 2024 WL 5134350, at *1 (9th Cir. Dec. 17, 2024).
 6         Plaintiff already amended her complaint once, but she failed to cure the
 7   fundamental defects in her claims. The Court should dismiss the Amended Complaint
 8   with prejudice.
 9   II.   PLAINTIFF LACKS ARTCILE III AND STATUTORY STANDING TO
10         PURSUE HER CLAIMS.
11         At a fundamental and threshold level, Plaintiff’s Amended Complaint fails as a
12   matter of law for lack of Article III and statutory standing. Plaintiff abjectly fails to
13   plead an injury-in-fact as required under Article III of the U.S. Constitution because
14   she fails to identify any harm, let alone a concrete one, stemming from her visit to BB
15   OpCo’s website. Plaintiff speculates about a purely hypothetical harm to her “privacy
16   interest” that is never identified with specificity in her pleading. Aside from vague and
17   undefined references to “device and browser information, geographic information,
18   referral and url tracking” that the TikTok software may collect, there is not a single
19   detail alleged concerning what information of Plaintiff’s was collected, or any injury
20   suffered as a result.
21         Tellingly, Plaintiff fails to cite or otherwise respond to Vivint, Inc., et al., where
22   a court in this District dismissed a nearly-identical complaint for lack of Article III
23   standing. Nor does Plaintiff address recent Ninth Circuit authority confirming that a
24   plaintiff that complains of third-party website analytics software but alleges only that
25   she visited a website, does not allege an injury and thus lacks standing.
26   Bloomingdales.Com, LLC, 2024 WL 5134350, at *1. Because Plaintiff’s Amended
27   Complaint alleges nothing beyond the fact that she “visited” BB OpCo’s website, her
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28                     DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   Amended Complaint is indistinguishable. By not responding, Plaintiff effectively
 2   concedes she has no standing to pursue her claims.
 3          Plaintiff instead tries to the muddy the waters by relying on transcripts of
 4   unrelated TikTok proceedings, that have nothing to do with BB OpCo’s alleged use of
 5   the TikTok pixel on its website, and have no connection to Plaintiff whatsoever. As
 6   the Supreme Court has unequivocally established, Article III standing must involve an
 7   actual injury to Plaintiff herself that is traceable to Defendant; the Court should ignore
 8   Plaintiff’s extraneous arguments as irrelevant. See TransUnion LLC v. Ramirez, 594
 9   U.S. 413, 414 (2021).2
10   III.   PLAINTIFF FAILS TO PLEAD A TRAP AND TRACE DEVICE.
11          Even if Plaintiff had standing to pursue her claims, she fails to plead the very
12   essence of a trap and trace device. It is evident that Plaintiff only pays lip service to
13   the statute’s specific requirement that a trap and trace device (1) capture incoming
14   electronic or other impulses (2) that identify the originating number or other dialing,
15   routing, addressing, or signaling information (3) reasonably likely to identify the
16   source of a wire or electronic communication, but not the contents of a
17   communication. Cal Penal Code § 638.51. In particular, Plaintiff conflates all three
18   requirements and bundles the various types of information to argue that they somehow
19   satisfy the entirety of the definition, when they do not.
20          First, Plaintiff claims in her Opposition that she sufficiently pleads a qualifying
21   trap and trace device under CIPA by alleging that the TikTok software captures
22   “incoming electronic impulses” including “device and browser information,
23   geographic information, referral tracking, and url tracking.” (Opp. at 10:9-14.) But
24   device and browser information, geographic information, and referral tracking are not
25
     2
26    Plaintiff likewise fails to plead statutory standing. Section 637.2 provides a private right of action
     only for a person “who has been injured by” a violation of one of its provisions. Cal. Penal Code §
27   637.2.
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28                       DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   “electronic impulses”—the first requirement in the definition. Indeed, Plaintiff fails to
 2   argue exactly what in her Amended Complaint is meant to reference the “electronic
 3   impulses” and her Opposition evidently abandons her reliance on the indecipherable
 4   screenshot in paragraph 12 of the Amended Complaint—purporting to show
 5   “electronic impulses being sent to TikTok.” (Am. Compl. ¶ 12.) As Plaintiff now
 6   effectively concedes, the screenshot shows no such thing.
 7         Nor does the Opposition even try to explain how Plaintiff’s allegations fall
 8   within the purview of dialing, routing, addressing, or signaling information to fit
 9   within the statute.   Indeed, after erroneously claiming that “device and browser
10   information, geographic information, referral tracking and url tracking” are somehow
11   “electronic impulses,” she completely ignores the second requirement that dialing,
12   routing, addressing or signaling information be identified by such impulses. Plaintiff
13   completely conflates the statutory requirements. To be clear, none of the information
14   cited by Plaintiff as purportedly collected by the TikTok software fits either statutory
15   element. Device and browser information, geographic information, and referral
16   tracking are not signaling information as they do not fit within the same category as
17   dialing, routing or addressing. See People v. Giordano, 42 Cal. 4th 644, 660 (2007)
18   (“Ejusdem generis applies whether specific words follow general words in a statute or
19   vice versa…[T]he general term or category is restricted to those things that are similar
20   to those which are enumerated specifically.”).
21          As to the third prong of the statute, requiring that information collected be
22   “reasonably likely to identify the source of a wire or electronic communication,” the
23   Amended Complaint is equally deficient. Plaintiff concludes that “an individual’s
24   geographic location, IP address, zip code, cell phone type and model, browser
25   information, and recently visited websites is the sort of information that is reasonably
26   likely to identify an individual.” (Opp. at 10:17-20.) But an IP address is excluded
27   from the Trap and Trace Laws, as information required for internet functionality. See
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28                    DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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                                          #:278


 1   Columbia Pictures Indus. v. Bunnell, 2007 WL 2080419 (C.D. Cal 2007); see also
 2   Casillas v. Transitions Optical, Inc. I (Super. Ct. L.A. Cty., April 23, 2024 Minute
 3   Order, No. 23STCV30742). None of the other information alleged—a zip code, a
 4   phone type, and recently visited websites—could possibly identify or be likely to
 5   identify an individual anywhere.
 6          The authorities cited by Plaintiff, including Moody v. C2 Educ. Sys. Inc., 742 F.
 7   Supp. 3d 1072, 1077 (C.D. Cal. 2024) and Shah v. Fandom, Inc., No. 24-cv-01062,
 8   2024 WL 4539577 (N.D. Cal. Oct. 21, 2024) do not compel a contrary result. Moody
 9   found that “device and browser information, geographic information, and browsing
10   history” qualified as dialing routing, addressing, or signaling information because the
11   defendant argued only that the “allegation [wa]s vague and conclusory but provide[d]
12   no support for this argument.” 742 F. Supp. 3d at 1077. In other words, unlike here,
13   the defendant there effectively conceded the argument. Further, the court erred in
14   determining that a device that collects contents of communications, even if dialing,
15   routing, or signaling information are also collected, could qualify as a trap and trace
16   device, insofar as the statue’s text specifically excludes any technologies that capture
17   the contents of communications. Cal Pen. Code 638.50(c) (a “Trap and trace device”
18   does “not [capture] the contents of a communication.”); see also Shah v. Fandom,
19   Inc., No. 24-cv-01062, 2024 WL 4539577 (N.D. Cal. Oct. 21, 2024) (following
20   Moody and considering only pen registers, rather than a trap and trace device.3) Shah
21   is also distinguishable as it addressed “tracking” on a user’s device. 2024 WL
22

23

24
     3
25    Shah, like Moody and Greenley, also relied on Cal. Penal Code § 630 and its directive to interpret
     CIPA in the manner that ‘fulfills the legislative purpose of CIPA by giving greater protection to
26   privacy interests.’” Shah v. Fandom, Inc., 2024 WL 4539577, at *4 (quotation omitted). However, as
     explained in the motion (and never addressed in any of Shah, Moody, Greeley, the Trap and Trace
27   Laws are separate from CIPA. Mot. at 20-21, n.5, 23-25, ns. 7-8.
                                                   10
28                      DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   4539577, at *1. That is not the case here as Plaintiff claims BB OpCo installed the
 2   TikTok software on its own website, not on Plaintiff’s device.4
 3   IV.    PLAINTIFF FAILS TO PLEAD A QUALIFYING TELEPHONE LINE.
 4          Although the statutory framework makes clear that a trap and trace device
 5   requires a device or process attached to a telephone line, Plaintiff urges the Court to
 6   ignore the statutory text and legislative history, and to blindly follow non-binding
 7   authorities that mistakenly applied the Trap and Trace Laws to website software. See
 8   Heiting v. Taylor Fresh Foods, Inc. (July 28, 2024) L.A. Sup Court Case No.
 9   24STCV12891; Moody, 742 F. Supp. 3d at 1077. The statutory text and structure,
10   however, confirm otherwise.
11          As explained in BB OpCo’s opening Motion, the Trap and Trace Law’s
12   implementing sections make clear that for a trap and trace device to be employed, a
13   telephone line is required. Subsection (d) of section 638.52 details specific
14   information that must be included in a court order authorizing the use of a trap and
15   trace device, including specifically a telephone line and telephone number.
16   Specifically, a court order permitting the use of a trap and trace device must include
17   “[t]he identity, if known, of the person to whom is leased or in whose name is listed
18   the telephone line to which the . . . trap and trace device is to be attached.” Cal. Penal
19   Code § 638.52(d)(1) (emphasis added). The order must also include “[t]he number
20   and, if known, physical location of the telephone line to which the . . . trap and trace
21   device is to be attached.” Id. § 638.52(d)(3) (emphasis added). Plaintiff does not
22   bother to address these clear provisions in any manner and instead suggests the court
23

24   4
      If every website using various analytics and marketing tools were subject to criminal liability, it
25   would lead to absurd outcomes. Website operators cannot obtain court orders to use such technology
     because they are not peace officers, and according to Plaintiff, they cannot obtain consent under
26   section 638.51, which only allows consent as a defense for providers of electronic communication
     services, which Plaintiff argues BB OpCo is not. This interpretation would effectively criminalize
27   common website practices, which is not a reasonable (or constitutional) result.
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28                      DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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 1   can simply ignore them because CIPA’s definition of “electronic communication”
 2   confirms the Trap and Trace Laws apply to website software. This is non-sensical.
 3   Extending the definition of the “electronic communication” beyond telephonic
 4   communications in light of the express requirements for a telephone line in § 638.52
 5   cannot be reconciled. Quite simply, a court would be unable to comply with section
 6   638.52 if website technologies were construed as trap and trace devices.
 7         In addition to this irreconcilable statutory conflict, nothing in the definition of
 8   electronic   communication    suggest    that   it   intended   to   apply   to   internet
 9   communications. Indeed, the Trap and Trace Law’s definition of “electronic
10   communication” is the same definition used in the federal trap and trace law since
11   1986—before websites were even invented. See Cal. Penal Code §§ 629.51, 638.50;
12   Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510 (1986). If the
13   California legislature intended “electronic communication” to apply to website
14   communications when it enacted the Trap and Trace Laws in 2015, it would have
15   specifically stated.
16         Plaintiff’s attempt to distinguish Application of U.S. of Am. For an Order
17   Authorizing Use of a Cellular Tel. Digital Analyzer, 885 F. Supp. 197 (C.D. Cal.
18   1995) as involving only federal pen register act is unpersuasive. The court’s holding
19   is directly analogous to the circumstances here and unequivocally held that “only
20   devices that are attached to a telephone line” were covered by the statute’s trap and
21   trace provisions. Id.
22         A.     To The Extent the Statute Is Ambiguous, Legislative History
23                Supports Defendant’s Position.
24         Plaintiff urges the court to ignore the substantial legislative history that
25   repeatedly references telephone lines and makes no reference whatsoever to website
26   technologies. Indeed, the legislative history of sections 638.50-638.53 shows that the
27   statute intended to authorize state and local law enforcement to use trap and trace
                                              12
28                     DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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                                          #:281


 1   devices for telephone surveillance. Without any response for this undeniable
 2   conclusion, Plaintiff falls back on its specious “electronic communication” argument
 3   that has no merit.
 4         Plaintiff likewise misconstrues the import of the comprehensive California
 5   Consumer Privacy Act (“CCPA”) enacted specifically to govern the disclosure and
 6   sale of personally identifying information in marketing.5 Plaintiff claims only
 7   generally that the CCPA does not “amend” or “repeal” the Trap and Trace Laws and
 8   should be “harmonized” with other laws. Plaintiff misses the point. The enactment of
 9   the CCPA does not in any way alter the Trap and Trace Laws, it merely demonstrates
10   that the California Legislature never believed that the Trap and Trace Laws applied to
11   website analytics tools to begin with.
12   V.     PLAINTIFF FAILS TO PLEAD BB OPCO INSTALLED THE TIKTOK
13          PIXEL IN CALIFORNIA
14          Plaintiff concedes that it failed to plead that BB OpCo installed the TikTok
15   pixel in California, and she does not dispute the well settled presumption against the
16   extraterritorial application of California law unless that intent “is clearly expressed or
17   reasonably to be inferred from the language of the act or from its purpose, subject
18   matter or history.” Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207 (2011). Plaintiff
19   also does not contest that there is no legislative intent for CIPA to apply
20   extraterritorially. Instead, Plaintiff argues without any support that it is sufficient for
21   Plaintiff to have used BB OpCo’s website in California. Plaintiff is wrong.
22          By focusing only on Plaintiff’s access of the website in California, and even
23   more irrelevantly TikTok’s place of business in California, Plaintiff ignores the crucial
24   elements of her claim are BB OpCo’s alleged installation or use of a trap and trace
25
     5
26    The CCPA, enacted three years after section 638.51, regulates the collection of personal
     information by businesses, including email addresses, geolocation data, and a consumer's interaction
27   with an internet website. See Cal. Civ. Code § 1798.100-1798.199.100.
                                                    13
28                      DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


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                                            #:282


 1   device. See Cal. Penal Code § 638.51. As a practical matter, the location where the
 2   trap and trace device was installed is the triggering conduct forming the basis of
 3   Plaintiff’s claims. That undisputedly occurred on BB OpCo’s website. Plaintiff does
 4   not and cannot claim that this conduct occurred in California—it did not.6
 5          Nothing about Plaintiff’s visit to the website in California changes this result.
 6   To the contrary, California courts have repeatedly confirmed that a plaintiff’s location
 7   has no bearing on the extraterritorial application of California laws to a defendant. See
 8   Eng. v. Gen. Dynamics Mission Sys., Inc., 2019 WL 2619658, at *6 (C.D. Cal. May 8,
 9   2019), aff’d, 808 F. App’x 529 (9th Cir. 2020) (dismissing claims seeking to apply
10   California law extraterritorially where the plaintiff was a “California resident,
11   received her pay in California, paid California income taxes, performed a significant
12   amount of her work assignments in California, was terminated in California, and her
13   HR representative was based in California”) (cleaned up); Hanley v. Int’l Ass’n of
14   Machinists & Aerospace Workers, 2022 WL 2117805, at *7 (C.D. Cal. June 1, 2022)
15   (“Plaintiff’s residency in California, and the fact that Plaintiff was in California when
16   the termination decision was made and when he was informed of his termination, are
17   insufficient to overcome the presumption against extraterritorial application of
18   FEHA.”).
19   VI.    THERE IS NO PRIVATE RIGHT OF ACTION.
20          Moreover, the Amended Complaint should also be dismissed because there is
21   no private right of action under CIPA for violation of the Trap and Trace Laws.
22   Plaintiff is wrong that courts have “universally” concluded that a private right of
23   action applies to the Trap and Trace Laws. (See Opp. at 16:6-8.). Not so. See Casillas
24
     6
25    Courts typically look to the location of servers in determining the location of a website. See Earll v.
     eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015) (web services are not “an actual physical place”);
26   Perfect 10, Inc. v. Yandex N.V., 962 F. Supp. 2d 1146, 1153 (N.D. Cal. 2013), as amended (Sept. 6,
     2013) (dismissing complaint involving extraterritorial application of Copyright Act where website
27   servers were not located in U.S.)
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28                       DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


Case 2:24-cv-09629-ODW-JC        Document 25 Filed 03/03/25     Page 15 of 16 Page ID
                                        #:283


 1   v. Traveler’s Choice Travelware (LA. Sup. Ct. 24STCV01337) (dismissing complaint
 2   with prejudice and holding Section 638.51 does not carry a private right of action
 3   upon which Plaintiff’s claim may be based”).
 4         Plaintiff’s Opposition relies solely on Section 637.2’s reference to “chapter” as
 5   necessarily encompassing the Trap and Trace Laws but fails to address the Motion’s
 6   argument, which is not addressed in any case Plaintiff cites, that this term is
 7   ambiguous in context. See Mot. 23 at n.8. Plaintiff also ignores that Section 638.55
 8   expressly provides remedies for violations of the Trap & Trace Laws and, unlike other
 9   provisions that were added after CIPA was initially enacted, makes no mention of
10   section 637.2. Pen. Code § 638.55; Mot at 24 (citing Cal. Pen. Code § 632.5). Instead,
11   Section 638.55 confirms that only the Attorney General is permitted to commence a
12   civil action evidencing an intentional departure from Section 637.2. Vicko Ins.
13   Services v. Ohio Indem. Co., 70 Cal.App.4th 55, 66 (1999) (finding existing remedies
14   “together with the absence of any reference to a private right of action” to be “strong
15   evidence the Legislature did not intend to create such a private right to sue for
16   damages”). Plaintiff’s unsupported assumption thus fails to account for the entire
17   statutory structure and legislative intent.
18   VII. IN THE ALTERNATIVE, BB OPCO 21 IS AN ELECTRONIC
          COMMUNICATION SERVICES PROVIDER.
19

20         Finally, even if the Trap and Trace Laws could apply, BB OpCo is plainly
21   exempt as an electronic communication service provider. Section 638.51(b) allows a
22   provider of electronic or wire communication service to use a trap and trace device to
23   “operate…a wire or electronic communication service” and “if the consent of the user
24   of that service has been obtained.” It is BB OPCo’s—not Plaintiff’s—consent
25   required to employ the TikTok software on its own website. Indeed, courts have
26   reached this precise result under analogous technologies and Plaintiff provides no
27   compelling reason for website tools to be treated differently. SeeRules and Policies
                                                   15
28                     DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS


Case 2:24-cv-09629-ODW-JC      Document 25 Filed 03/03/25      Page 16 of 16 Page ID
                                      #:284


 1   Regarding Calling No. Identification Serv.—Caller ID, 9 F.C.C. Rcd. 1764 (1994)
 2   (addressing caller ID feature). The Amended Complaint should be dismissed with
 3   prejudice.
 4

 5   DATED: March 3, 2025              BLANK ROME LLP
 6
                                       By: /s/ Ana Tagvoryan
 7                                             Ana Tagvoryan
                                               Victor Sandoval
 8                                     Attorneys for Defendant
                                       BB OpCo LLC
 9

10
           The undersigned, counsel of record for BB OpCo, certifies that this brief
11
     contains 3,293 words, which complies with the word limit of this Court’s procedures.
12

13                                     By: /s/ Ana Tagvoryan
                                               Ana Tagvoryan
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28                   DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS