Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 1 of 16 Page ID #:269 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 27 1 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 2 of 16 Page ID #:270 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 16 17 18 19 20 21 22 23 24 25 26 27 2 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 3 of 16 Page ID #:271 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 3 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 4 of 16 Page ID #:272 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 4 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 5 of 16 Page ID #:273 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 5 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 6 of 16 Page ID #:274 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 Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 7 of 16 Page ID #:275 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 7 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 8 of 16 Page ID #:276 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. 8 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 9 of 16 Page ID #:277 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 9 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 10 of 16 Page ID #: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 Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 11 of 16 Page ID #:279 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. 11 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 12 of 16 Page ID #:280 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 Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 13 of 16 Page ID #: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 Case 2:24-cv-09629-ODW-JC Document 25 Filed 03/03/25 Page 14 of 16 Page ID #: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.) 14 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 16 28 DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS