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Rosolowski v. Guthy-Renker LLC

California Court of Appeals, Second District, Third Division

October 29, 2014

GREG ROSOLOWSKI et al. Plaintiffs and Appellants,
v.
GUTHY-RENKER LLC, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC499041, William F. Highberger, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Law Offices of Morse Mehrban and Morse Mehrban for Plaintiffs and Appellants.

Young, Zinn & Bate, Harry A. Zinn, Stephanie M. Saito; Harrington, Ocko & Monk and John T.A. Rosenthal for Defendant and Respondent.

OPINION

KLEIN, P. J.

Plaintiffs and appellants Greg Rosolowski et al. (collectively, Plaintiffs)[1] appeal a judgment of dismissal following an order sustaining a demurrer interposed by defendant and respondent Guthy-Renker LLC (Guthy) to Rosolowski’s first amended complaint without leave to amend.

The advent of electronic mail, or email, “has brought with it a flood of commercial advertising, some of it misleading, false, or deceptive, some even fraudulent, much of it unwanted. That in turn has given rise to federal and state legal initiatives intended to stem the flow of the unwanted, and especially the misleading, false, deceptive, and fraudulent e-mails, so-called anti-spam legislation.” (Beyond Systems, Inc. v. Kraft Foods, Inc. (2013) 972 F.Supp.2d 748, 751 (Beyond Systems).)

Here, the essential issue presented is whether Plaintiffs stated a cause of action for violation of Business and Professions Code section 17529.5, [2] on the theory that Guthy sent them unsolicited commercial email advertisements purporting to be from “Proactiv Special Offer, ” “Wen Hair Care, ” “Proactiv

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Special Bonus Deal, ” “Wen Healthy Hair, ” “Wen by Chaz Dean, ” “Proactiv Bonus Deal, ” “Proactiv Bonus Gift, ” and “Proactiv: Special Offer, ” which are not names or registered fictitious business names of existing entities, and are not traceable to Guthy via a WHOIS database search.[3]

Plaintiffs also alleged the “subject” lines of the emails asserted the recipient was entitled to a free or complimentary gift, without mentioning the gift was contingent upon a purchase.

We conclude no cause of action was stated for violation of section 17529.5, subdivision (a)(2) (misrepresented header information) or subdivision (a)(3) (misleading subject line) and affirm the judgment of dismissal.

We hold a header line in a commercial email advertisement does not misrepresent the identity of the sender merely because it does not identify the official name of the entity which sent the e-mail, or merely because it does not identify an entity whose domain name is traceable from an online database, provided the sender’s identity is readily ascertainable from the body of the email, as was the case here.

Further, the body of the emails made clear that free shipping or free gifts were contingent upon a purchase. As the trial court found, a reasonable sender would not have reason to believe that commercial missives like these were “likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.” (§ 17529.5, subd. (a)(3).)

FACTUAL AND PROCEDURAL BACKGROUND

1. Pleadings.

The gravamen of the allegations in the operative first amended complaint is that Guthy sent Plaintiffs unsolicited commercial email advertisements which, instead of identifying the sender as Guthy, indicated the sender was “Proactiv Special Offer, ” “Wen Hair Care, ” “Proactiv Special Bonus Deal, ”

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“Wen Healthy Hair, ” “Wen by Chaz Dean, ” “Proactiv Bonus Deal, ” “Proactiv Bonus Gift, ” and “Proactiv: Special Offer, ” which are not names or registered fictitious business names of existing entities, and are not traceable to Guthy via a WHOIS search. Further, the emails contained “subject” lines stating Plaintiffs were entitled “to a free or complimentary gift without mentioning that the gift was contingent upon a purchase.”

The first amended complaint was filed on behalf of lead plaintiff Greg Rosolowski and 45 individual co-plaintiffs, who collectively sought to be class representatives to represent a larger class. A number of the allegedly offending emails were attached as exhibits to the pleading. For example, Exhibit A included an email bearing the subject line “Exclusive WEN Deal: Complimentary Shipping, ” and it originated “From: Wen Hair Care (mavk@r.andedox.info).”

2. Demurrer.

Guthy demurred, contending Plaintiffs’ claims should be dismissed because they were preempted by federal law, specifically, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 7701 et seq.) (the CAN-SPAM Act), which preempts claims under section 17529.5, unless header or subject lines are materially false or misleading; the “from” lines contained famous brand names, identified with Guthy, the business entity whose name and address were set forth in the body of the same email; and the subject lines of the emails accurately referred to a “free” or “complimentary” gift and were not actionable.

3. Opposition to demurrer.

In opposition, Plaintiffs argued the emails violated section 17529.5, subdivision (a)(2), in that the names appearing on the “from” lines could not be traced to Guthy by way of an online database such as WHOIS, and also violated section 17529.5, subdivision (a)(3) because the subject lines represented the recipients were entitled to ...


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