Boulton v. community.com, Inc

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 28, 2025
• Docket: 23-3145
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CYNDY BOULTON, individually, and on No. 23-3145 behalf of all others similarly situated, D.C. No. 2:23-cv-02426-SB-JPR Plaintiff - Appellant,

v. MEMORANDUM*

COMMUNITY.COM, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted January 16, 2025 Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and RAKOFF, District Judge.**

Plaintiff Cyndy Boulton appeals the district court’s order dismissing her

complaint against Defendant Community.com (Community) for failure to state a

claim under Fed. R. Civ. P. 12(b)(6). “We review an order granting a motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. dismiss de novo.” D’Augusta v. Am. Petroleum Inst., 117 F.4th 1094, 1100 (9th

Cir. 2024). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Because the parties are familiar with the facts of this case, we do not recount them

here except as necessary to provide context to our ruling.

1. The district court did not err in dismissing Boulton’s Wiretap Act claim.1

Under this statute, it is an offense to “intentionally intercept[]” any “electronic

communication.” 18 U.S.C. § 2511(1)(a). Our court has held that “intercept” has

a “narrow definition” and that for a communication to be “intercepted” in violation

of this statute, “it must be acquired during transmission, not while it is in electronic

storage.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002).

Boulton has failed to allege that her text message to LL Cool J was acquired

“during transmission” even though LL Cool J himself never received Boulton’s

text because she did not sign up for Community’s platform. Rather, even taking

the facts in the light most favorable to Boulton, the only logical conclusion from

the facts alleged in her complaint is that she texted a Community number and the

1 Boulton’s counsel had previously brought a similar case against Community in Adler v. Community.com, Inc., No. 2:21-cv-02416, 2021 WL 4805435 (C.D. Cal. Aug. 2, 2021). In Adler, the district court dismissed the plaintiffs’ Wiretap Act and California Invasion of Privacy (CIPA) § 631(a) claims with prejudice. Boulton brought the same Wiretap Act and CIPA § 631(a) claims as in Adler to preserve them. The parties jointly incorporated by reference the arguments made with respect to those claims in Adler and asked the district court to dismiss those claims on the same terms; the district court granted that dismissal.

2 24-6 text was received at that number. Boulton’s repeated assertions that Community

“intercepted” her text message are simply conclusory, and this court “[is not]

required to accept as true allegations that are merely conclusory, unwarranted

deductions of fact, or unreasonable inferences.” Khoja v. Orexigen Therapeutics,

Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (quoting In re Gilead Scis. Sec. Litig., 536

F.3d 1049, 1055 (9th Cir. 2008)). Therefore, because Community could only have

accessed Boulton’s text while it was in electronic storage, Boulton has failed to

state a claim under the Wiretap Act. See Konop, 302 F.3d at 878.

2. For similar reasons, the district court did not err in dismissing Boulton’s

California Invasion of Privacy Act (CIPA) § 631(a) claim against Community.

This statute makes it an offense to “read[], or attempt[] to read, or to learn the

contents or meaning of” a communication “without the consent of all parties”

while that communication is “in transit . . . or is being sent from, or received at any

place” in California. Cal. Penal Code § 631(a). Based on the facts alleged in the

complaint, Community could have only read or attempted to read Boulton’s text

after it was received at LL Cool J’s Community number, so the text could not have

been accessed “in transit” within the meaning of § 631(a). Additionally, like the

district court, we reject Boulton’s further argument that “[being] received at”

should be read to prohibit non-consensual access to any communication merely

received in California. As the district court noted, this interpretation is one of

3 24-6 “extraordinary breadth,” and neither Boulton’s statutory construction arguments

nor her purpose-based arguments is persuasive.

3. Next, the district court did not err in dismissing Boulton’s CIPA § 632

claim against Community. This statute makes it an offense to “eavesdrop upon or

record” a “confidential communication.” Cal. Penal Code § 632(a). However, the

statute excludes from the definition of “confidential communication” a

communication made in “any other circumstance in which the parties to the

communication may reasonably expect that the communication may be overheard

or recorded.” Id. § 632(c). The district court dismissed Boulton’s § 632 claim

because text messages are by nature recorded and so cannot be “confidential

communications” per the exclusion clarified in § 632(c). Although the California

Supreme Court has not yet decided whether this statutory exclusion applies to text

messages, California appellate courts have held that the exclusion can apply to

internet chat messages. See, e.g., People v. Nakai, 183 Cal. App. 4th 499, 518–19

(2010) (finding that the Yahoo! chat messages at issue were not confidential

communications in part because the defendant “was communicating online with a

person whom he did not know, via writing and photographs” and that such writings

and photographs can be instantaneously shared with thousands of others via the

internet). Therefore, because texts are a recorded medium, and because Boulton

admitted during the hearing on the motion to dismiss that she knew her text to LL

4 24-6 Cool J would by nature be recorded, her text was not a “confidential

communication” protected by § 632 due to the statutory exception clarified in §

632(c).

4. Finally, the district court did not err in dismissing Boulton’s CIPA

§ 632.7 claim. Under § 632.7, it is an offense to intercept a communication

transmitted “between two cellular radio telephones, a cellular radio telephone and a

landline telephone, two cordless telephones, a cordless telephone and a landline

telephone, or a cordless telephone and a cellular radio telephone.” Cal. Penal Code

§ 632.7(a). Boulton has not alleged that her text to LL Cool J was a transmission

between two telephones as plainly required by the statute and as so interpreted by

California courts. See, e.g., Hataishi v. First Am. Home Buyers Prot. Corp., 223

Cal. App. 4th 1454, 1469 (2014). Rather, her complaint alleges that she texted LL

Cool J’s Community number and that Community is a “social media platform.”

Therefore, because she did not and cannot allege that her text was received by a

phone, the district court correctly found that she did not and could not state a claim

under § 632.7.

AFFIRMED.

5 24-6