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Boorstein v. CBS Interactive, Inc.

California Court of Appeal, Second District, Fourth Division

December 19, 2013

David BOORSTEIN, Plaintiff and Appellant,
v.
CBS INTERACTIVE, INC., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed. (No. BC476015)

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[Copyrighted Material Omitted]

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COUNSEL

The Reis Law Firm, Sean Reis, Rancho Santa Margari; Edelson and Ari Scharg for Plaintiff and Appellant.

Fenwick & West, Rodger R. Cole, Songmee L. Connolly, and Molly R. Melcher, Mountain View, for Defendant and Respondent.

OPINION

SUZUKAWA, J.

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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. (the shine the light law or STL) and Business and Professions Code section 17200 et seq. (the unfair competition law or UCL).[1] We agree with the trial court that plaintiff lacks standing to pursue causes of action under either statute, and thus we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Present Action

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 [165 Cal.Rptr.3d 671] 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

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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 to cbssports.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.

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II. CBS's Demurrer

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 [165 Cal.Rptr.3d 672] 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:

" [A] business's obligation to provide STL disclosures is triggered only if it (1) discloses a customer's information to third parties for their direct marketing purposes; and (2) a customer makes a request for information. Cal. Civ.Code § 1798.83(a). The 90-day safe harbor in Cal. Civ.Code § 1798.84(d) further underscores that the Act only applies once a customer makes a request. Its plain language precisely describes violations for which a Shine the Light suit may be brought: the failure to provide accurate and complete Cal. Civ.Code § 1798.83(a) disclosures or timely disclosures under Cal. Civ.Code § 1798.83(b). If a plaintiff's personal information was never shared or the plaintiff did not request (or want to, try to, or was unable to request any STL disclosures), the business has no obligation to provide any disclosures in the first instance.
" Here, Plaintiff fails to state a claim against CBSi [CBS Interactive] for violation of the Act. First, Plaintiff fails to allege that CBSi actually disclosed his personal information to a third party for direct marketing purposes. If plaintiff's personal information was never shared, CBSi had no obligation to provide the Act's disclosures to him in the first instance.
" Worse yet, Plaintiff fails to allege that he ever requested, or even tried to, wanted to, or was unable to request, any STL disclosures from CBSi or that CBSi failed to provide a complete, accurate or timely response. Plaintiff confirmed at oral argument that he never requested, or tried to request, any

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STL disclosures from CBSi. If Plaintiff did not request, or want to request, any STL disclosures from CBSi, there is no obligation for CBSi to provide the disclosures to him. Because Plaintiff cannot state a claim under the Act, CBSi's demurrer to ...

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