Boorstein v. CBS Interactive, Inc., B247472
| Decision Date | 19 December 2013 |
| Docket Number | B247472 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DAVID BOORSTEIN, Plaintiff and Appellant, v. CBS INTERACTIVE, INC., Defendant and Respondent. |
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. BC476015)
APPEAL from a judgment of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed.
The Reis Law Firm, Sean Reis; Edelson and Ari Scharg for Plaintiff and Appellant.
Fenwick & West, Rodger R. Cole, Songmee L. Connolly, and Molly R. Melcher for Defendant and Respondent.
Plaintiff appeals from the judgment of dismissal entered after the trial court sustained defendant's demurrer to causes of action for violations of Civil Code section 1798.83 et seq. () and Business and Professions Code section 17200 et seq. ().1 We agree with the trial court that plaintiff lacks standing to pursue causes of action under either statute, and thus we affirm.
The STL is a disclosure statute designed to "shine the light" on businesses' information-sharing practices by requiring them to establish procedures by which customers can obtain information about those practices. (Miller v. Hearst Communications, Inc. (C.D. Cal. 2012) 2012 WL 3205241, quoting Boorstein v. Men's Journal LLC (C.D. Cal. 2012) 2012 WL 2152815.) The STL requires businesses that share customers' personal information with third parties for direct marketing to disclose, upon a customer's request, the names and addresses of third parties who have received personal information and the categories of personal information revealed. (§ 1798.83, subd. (a).) The STL also requires businesses to make their contact information available to customers in one of three statutorily prescribed ways, and it provides that businesses need not make the disclosures required by section 1798.83, subdivision (a), if they instead give customers the opportunity to opt in or opt out of the disclosure of their personal information. (§1798.83, subds. (b), (c).) Finally, the STL provides for damages, civil penalties, injunctions, and attorney fees. (§ 1798.84.)
Plaintiff David Boorstein filed the present action on December 28, 2011, and filed the operative first amended complaint, asserting violations of the STL and the UCL, on September 24, 2012. Plaintiff alleges that in or about 2005, he subscribed tocbssports.com, a website owned and operated by defendant CBS Interactive, Inc. (CBS), to compete in "fantasy" football, baseball, and basketball. When he did so, he provided personal information to CBS, including his name, email address, date of birth, and zip code. Plaintiff alleges that CBS shares users' personal information, including that of the type he provided to CBS, with third parties for direct marketing purposes, and thus is required to comply with the STL. CBS willfully violated the STL by "failing to provide a link on its home page (www.cbssports.com) titled 'Your Privacy Rights'; [¶] failing to provide a link on its home page to a separate web page titled 'Your Privacy Rights'; [¶] failing to provide—on the 'first page' of the link from its home page—a description of its 'customer[s'] rights' under the Act, including the right to request information about its information sharing practices or the right to opt out of information sharing altogether; and [¶] failing to provide—on the 'first page' of the link from its home page—the designated mailing address, email address, telephone number, or facsimile number for customer requests." (Fn. omitted.) As a result, plaintiff alleges, he is "deprived of information that he was statutorily entitled to under the Act, including notice of his right to request Shine the Light Disclosures and contact information to make such requests; [¶] deprived of a meaningful opportunity to exercise his statutorily-guaranteed right to inquire about and receive a detailed response explaining CBS Interactive's information sharing practices (i.e., by identifying what categories of information are disclosed and to whom); [¶] deprived of a meaningful opportunity to exercise his statutorily-guaranteed right to make informed decisions about his privacy and personal information; and [¶] deprived of a meaningful opportunity to exercise his statutorily-guaranteed right to monitor and control the disclosure and use of his personal information."
Plaintiff purported to bring the present action for himself and a class of similarly situated individuals defined as "All California residents who have provided personal information to CBS Interactive." He sought actual damages, civil penalties of $3,000 per violation, injunctive relief, reasonable litigation expenses, and attorney fees.
CBS demurred to the first amended complaint. It asserted: (1) plaintiff has not and cannot allege CBS ever shared his personal information with any third parties for any direct marketing purposes; (2) plaintiff has not and cannot allege that he ever contacted or attempted to contact CBS about how his personal information might have been shared, or that CBS ever provided him with any incomplete, inaccurate, or untimely information; (3) plaintiff did not allege a cognizable injury; (4) CBS complied with the STL by providing designated contact information on its website; and (5) CBS complied with the STL because its privacy policy informs users how their personal information is shared with third parties for direct marketing purposes only with consent, as well as how to opt out and how to contact CBS with questions.
The trial court held a hearing on the demurrer on December 13, 2012. Plaintiff's counsel conceded that the first amended complaint did not allege plaintiff had made a disclosure request under the STL, but urged that such a request was not required. The trial court disagreed and sustained the demurrer without leave to amend. Its order stated as follows:
Notice of entry of the order sustaining defendant's demurrer without leave to amend was served December 31, 2012. The court entered a final judgment of dismissal on January 28, 2013, from which plaintiff timely appealed.
Central to the dispute between the parties is whether plaintiff has standing to pursue the present action. CBS contends, and the trial court agreed, that to have standing under the STL (and, derivatively, under the UCL), a customer must either have made, or attempted to make, a disclosure request under section 1798.83, subdivision (a). Plaintiff disagrees, contending that a disclosure request is not necessary; it is enough that the defendant failed to make its contact information available as the STL requires.
We review independently the trial court's judgment of dismissal following a demurrer, considering de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.) We also review de novo issues of statutory construction, ascertaining the intent of the lawmakers so as to effectuate the purpose of the statutes. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; Regents of University of California v. Superior Court, supra, 220 Cal.App.4th at p. 558.)
For the reasons that follow, we agree with the trial court that a...
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