Gail Spears, et al. v. The Campbell's Company, et al.

Opinion

GAIL SPEARS, et al., Case No. 26-cv-02385-TSH

Plaintiffs, ORDER DENYING DEFENDANTS’ v. MOTION TO DISMISS PURSUANT TO RULES 12(b)(1) AND 12(b)(6) THE CAMPBELL'S COMPANY, et al., Re: Dkt. No. 32 Defendants.

Plaintiffs Melvin Colman, Gail Spears, and Revital Yogev (collectively, “Plaintiffs”) bring this putative class action against Defendants The Campbell’s Company and Pacific Foods of Oregon LLC (collectively, “Defendants”), alleging violations of consumer privacy and breach of trust under California law. First Am. Compl. (“FAC”) (ECF No. 31). Pending before the Court is Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 32 (“Mot.”). The Court finds this matter suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b) and VACATES the September 10, 2026, hearing. For the reasons stated below, the Court DENIES the motion.1

1 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. A. Factual Background Plaintiffs are all California residents who used Defendants’ websites.2 FAC ¶¶ 8–10, p. 81 ¶ 121, p. 84 ¶ 132, p. 87 ¶ 142 (ECF No. 31). Overall, Plaintiffs allege that although Defendants’ ecommerce websites (including www.campbells.com (the “Campbell’s Website”), www.Rao’s.com (the “Rao’s Website”), www.pacificfoods.com (the “Pacific Foods Website”), and michaelangelos.com (the “Michael Angelo’s Website”) (collectively, the “Websites”) expressly give users the option to control how they are tracked and how their personal data are used, Defendants cause third parties to utilize cookies that track users’ website browsing activities and intercept their private communications on the Websites even after users opt-out of or reject these practices. Id. ¶¶ 1, 4. Defendant The Campbell’s Company (“Campbells”), a New Jersey corporation with a principal place of business in New Jersey, owns and operates the Campbell’s Website, Rao’s Website and Michael Angelo’s Website. Id. ¶ 11. Defendant Pacific Foods of Oregon LLC (“Pacific Foods”), an Oregon limited liability corporation with a principal place of business in Oregon, owns and operates the Pacific Foods Website. Id. ¶ 12. Campell’s owns and operates Pacific Foods. Id. ¶ 13. 1. Tracking Cookies Tracking cookies “are small text files sent by a website server to a user’s web browser and stored locally on the user’s device.” Id. ¶ 23. The cookies enable a website “to identify the device making the requests, and to record a session showing how the user interacts with the website.” Id. “First-party cookies are those that are placed on the user’s device directly by the web server with which the user is knowingly communicating. First-party cookies are used to track users when they repeatedly visit the same website.” Id. ¶ 24. 2 Plaintiffs state that the FAC “contains a paragraph numbering error; the paragraphs are sequential up to paragraph 132 on page 79 but then the numbering restarts at paragraph 115.” Opp. at 2 n.1 (ECF No. 36). In their Opposition, Plaintiffs “refer to paragraphs up to page 79 by paragraph and the subsequent paragraphs by page number and paragraph,” where the “page Third-party cookies are “set by a third-party domain/webserver.” Id. ¶ 25. These cookies “cause the user’s browser to store those cookies on the device if they do not yet exist,” and allow “the third-party to recognize and differentiate individual users across websites and across multiple browsing sessions.” Id. The cookies enable third parties to track users in real time and collect their personal information, “such as their browsing activities and private communications.” Id. ¶ 26. The cookies are used for a variety of purposes, including analytics, personalization, advertising/targeting, and social media integration; ultimately, they are used “to enhance website performance and generate revenue through data collection and targeted advertising.” Id. ¶ 27. 2. Defendants And Third Parties Plaintiffs allege the following in the FAC. “Defendants designed the Websites to include resources and programming scripts from third parties that cause those parties to place cookies and other similar tracking technologies on visitors’ browsers and devices and/or transmit cookies along with user data.” Id. ¶ 3. Defendants cause

multiple third parties—including Meta Platforms, Inc. (Facebook), Google LLC (DoubleClick, Google Analytics, and YouTube), ByteDance Ltd. (TikTok), The Trade Desk, Inc. (adsrvr.org), Amazon.com, Inc. (amazon-adsystem), Yahoo, Inc., Microsoft Corporation (Microsoft Bing), Pinterest, Inc., X Corp (Twitter), and others (the ‘Third Parties’)—to place and/or transmit cookies that track users’ website browsing activities and intercept their private communications on the Websites.

Id. ¶ 4. Defendants do so by voluntarily integrating “third-party resources” from the Third

Parties into their Websites’ programming, causing placement of the cookies on users’ devices. Id.

¶ 22. Defendants thus have “complete control over whether first-party and third-party cookies are

placed on its California Website users’ devices and/or transmitted to third parties.” Id. ¶ 30. The Third Parties’ cookies permit the Third Parties to

track and collect data in real time regarding Websites’ visitors’ behaviors and communications, including their browsing history, visit history, website interactions, user input data, demographic information, interests and preferences, shopping behaviors, device information, referring URLs, session information, user identifiers, and/or geolocation data—including whether a user is located in California. Communications,” comprising:

• Browsing History: Information about the webpages a Website’s user visits, including the URLs, titles, and keywords associated with the webpages viewed, time spent on each page, and navigation patterns; • Visit History: Information about the frequency and total number of visits to the Websites;

• Website Interactions: Data on which links, buttons, or ads on the Websites that a user clicks; • User Input Data: The information the user entered into the Websites’ form fields, including search queries, the user’s name, age, gender, email address, location, and/or payment information; • Demographic Information: Inferences about age, gender, and location based on browsing habits and interactions with the Websites’ content; • Interests and Preferences: Insights into user interests based on the types of content viewed, products searched for, or topics engaged with on the Websites; Shopping Behavior: Information about the Websites’ products viewed or added to shopping carts;

• Device Information: Details about the Websites’ users’ devices, such as the type of device (mobile, tablet, desktop), operating system, and browser type;

• Referring URL: Information about the website that referred the user to the Websites; • Session Information: Details about the user’s current Website browsing session, including the exact date and time of the user’s session, the session duration and actions taken on the Website during that session;

• User Identifiers: A unique ID that is used to recognize and track a specific Website user across different websites over time; and/or • Geolocation Data: General location information based on a Website user’s IP address or GPS data, if accessible, including whether the user is located in California. Id. ¶ 26. These cookies track users’ Private Communications as users interact with the Websites. Id. ¶ 29. Overall, the Third Parties’ cookies may “receive information reflecting the substance of users’ communications with the Websites,” or “signaling” and “addressing” information including browsers and devices. Id. ¶¶ 55, 129–32. Regarding users’ communications, the Third Parties intercept these communications while they are in transit from consumers’ browsers to Defendants’ Websites. Id. ¶ 118. This involves “large-scale data ingestion systems designed to receive, read, and act upon incoming data streams in real time, as the data is transmitted over the network, before it is committed to storage.” Id. The process of intercepting users’ communications requires multiple steps that “necessarily require contemporaneous access to the contents of the communications while they are in transit.” Id. ¶¶ 118–128. The Third Partes’ cookies also permit the Third Parties to identify users across websites and across multiple browsing sessions. Id. ¶¶ 23, 25. In other words, the Third Parties’ cookies “track users’ behavior across the Internet and across time.” Id. ¶ 47. For example, some cookies stay on a user’s device for over a year. Id. ¶ 33. The operation of the Third Parties’ cookies can be observed “using specialized tools that log incoming and outgoing Website network transmissions.” Id. ¶ 44. “The only way to determine what network traffic is sent to third parties when visiting a website is to use a specialized tool such as Chrome Developer Tools.” Id. p. 83 ¶ 131. Such tools are designed for use by software developers “whose specialized training enables them to analyze the data underlying the HTTP traffic to determine what data, if any, is being sent to whom.” Id. Defendants exploit users’ Private Communications for Defendants’ and Third Parties’ profit. Id. p. 80 ¶ 115. “The Private Communications tracked and collected through cookies on the Websites are valuable to Defendants and the Third Parties.” Id. p. 80 ¶ 116. Defendants monetize the data “by leveraging it to increase user engagement, advertising effectiveness, and overall revenue.” Id. p. 80 ¶ 117. The “Third Parties monetize user profiles for advertising, sales, and marketing purposes to generate revenue and target advertising to Internet users.” Id. ¶ 50. 3. Plaintiffs’ Experiences Plaintiffs allege the following in the FAC. Each of Defendants’ Websites displays popup cookie consent banners to users—each banner discloses the Website “uses cookies but expressly gives users the option to control how they are tracked and how their personal data is used, Id. ¶ 1. Defendants’ representations that “users could browse the Websites without being tracked, followed, or targeted by third-party data brokers and advertisers” are false. Id. ¶ 3. Even when users elect to opt-out or reject tracking cookies on the Websites, Defendants cause the Third Parties to place and/or transmit cookies that track users’ website browsing activities and intercept their Private Communications on the Websites. Id. ¶ 4. For example, after users opt-out of cookies, the Websites still gather data, including search strings, user IDs, button clicks, pages viewed, IP address, device information, and data allowing Facebook and Google to track users across other websites. Id. ¶¶ 59–63, 68, 72–90. Plaintiff Coleman “visited each of the Websites on one or more occasions during the last four years to seek information about Defendants’ products, including, but not limited to, on or around November 2024.” Id. p. 81 ¶ 121. Plaintiff Spears “visited the Campbell’s Website on one or more occasions during the last four years to seek information about Campbell’s products.” Id. p. 84 ¶ 132. Plaintiff Yogev “visited the Campbell’s, Rao’s, and Pacific Foods Websites on one or more occasions during the last four years to seek information about Defendants’ products.” Id. p. 87 ¶ 142. Plaintiffs all affirmatively rejected tracking cookies when using the Websites by utilizing the Websites’ cookie consent banners. Id. p. 81 ¶ 125, p. 84 ¶¶ 134–36, p. 87 ¶ 145. Yet Defendants permitted the Third Parties to use tracking cookies to obtain Plaintiffs’ Private Communications. Id. ¶¶ 41–42. Defendants’ misrepresentations “deprive consumers of the ability to decide whether, and on what terms, their data may be monetized.” Id. pp. 80–81 ¶ 120. “Generally, the value of personal data is measured as either the consumer’s willingness to accept compensation to sell her data or the consumer’s willingness to pay to protect her information.” Id. p. 80 ¶ 119. Plaintiffs “would not have used the Websites” had they known that Defendants’ representations regarding cookies opt-out were untrue. Id. p. 83 ¶ 130, p. 86 ¶ 140, p. 88 ¶ 150. Defendants permit the Third Parties to use tracking cookies to collect, track, and compile Plaintiffs’ and other users’ Private Communications,

including their browsing history, visit history, website interactions, user input data, demographic information, interests and preferences, shopping behaviors, device information, referring URLs, session Id. p. 93 ¶ 154. The Third Parties use data collected through Defendants to “create consumer profiles containing detailed information about a consumer’s behavior, preferences, and demographics.” Id. Because Plaintiffs are not website developers, they lack the ability to use specialized tools to determine what data, if any, are being sent by the Websites to the Third Parties. Id. p. 83 ¶ 131, p. 86 ¶ 141, p. 89 ¶ 151. B. Procedural Background On March 18, 2026, Plaintiffs Gail Spears and Revital Yogev filed this action against Defendants The Campbell’s Company, Wm. Bolthouse Farms, Inc., Generous Brands LLC, and Pacific Foods of Oregon LLC, alleging six causes of action: (1) Invasion of Privacy; (2) Intrusion Upon Seclusion; (3) Wiretapping in Violation of the California Invasion of Privacy Act (California Penal Code § 631); (4) Use of a Pen Register in Violation of the California Invasion of Privacy Act (California Penal Code § 638.51); (5) Common Law Fraud, Deceit and/or Misrepresentation; and (6) Unjust Enrichment. ECF No. 1. On June 1, 2026, the Court granted the parties’ Motion and Stipulation to Sever and ordered that “the existing action shall be severed into two separate actions—by Yogev and Spears against the Campbell’s Defendants and by only Yogev against Bolthouse.”3 ECF No. 29. On June 15, 2026, Plaintiffs Melvin Colman, Gail Spears, and Revital Yogev filed the operative First Amended Complaint (“FAC”) against Defendants The Campbell’s Company and Pacific Foods of Oregon LLC. ECF No. 31. Plaintiffs allege six causes of action: (1) Invasion of Privacy; (2) Intrusion Upon Seclusion; (3) Wiretapping in Violation of the California Invasion of Privacy Act (California Penal Code § 631); (4) Use of a Pen Register in Violation of the California Invasion of Privacy Act (California Penal Code § 638.51); (5) Common Law Fraud, Deceit and/or Misrepresentation; and (6) Unjust Enrichment. FAC ¶¶ 160–240. Plaintiffs seek, inter alia, damages and injunctive relief. Id. at 104. On July 6, 2026, Defendants filed the instant Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 32 (“Mot.”). Defendants also filed a Request for Judicial Notice. ECF No. 32-1. On August 3, 2026, Plaintiffs filed an Opposition. ECF No. 36 (“Opp.”). On August 21, 2026, Defendants filed a Reply and second Request for Judicial Notice. ECF Nos. 37 (“Reply”), 38. On August 28, 2026, Plaintiffs filed an Objection to Reply Evidence. ECF No. 39. A. 12(b)(1) “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Accordingly, “[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (cleaned up); accord Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit for lack of subject matter jurisdiction. Lack of Article III standing is properly raised in a Rule 12(b)(1) motion. Iten v. Los Angeles, 81 F.4th 979, 985 (9th Cir. 2023). The party asserting federal subject matter jurisdiction must establish standing by a preponderance of the evidence. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is factual, however, “the court need not presume the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment. Id.; see Gordon v. United States, 739 F. App’x 408, 411 (9th Cir. 2018) (explaining that a court “may review any evidence, such as affidavits and overcome a factual challenge, a plaintiff must “support their jurisdictional allegations with competent proof.” Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d 939, 944 (9th Cir. 2021) (cleaned up). Further, dismissal of a complaint without leave to amend should only be granted where the jurisdictional defect cannot be cured by amendment. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). B. 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (cleaned up). Rule 8 provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility does not mean probability, but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. Twombly, 550 U.S. at 555 (citation omitted). In considering a motion to dismiss, the court accepts factual allegations in the complaint as true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Courts have broader discretion in denying motions for leave to amend after leave to amend has already been granted. See Rich v. Shrader, 823 F.3d 1205, 1209 (9th Cir. 2016) (“[W]hen the district court has already afforded a plaintiff an opportunity to amend the complaint, it has wide discretion in granting or refusing leave to amend after the first amendment, and only upon gross abuse will its rulings be disturbed.”) (cleaned up); Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a plaintiff leave to amend, its discretion in deciding subsequent motions to amend is particularly broad.”) (cleaned up). Defendants move to dismiss Plaintiffs’ two claims for violation of the California Invasion of Privacy Act (“CIPA”) for lack of Article III standing. Mot. at 4:13–6:5. Defendants further move to dismiss all Plaintiffs’ claims for failing to state a cognizable claim. Id. at 1:25–2:9. Alternatively, Defendants request the Court stay the action pending a decision by the California Court of Appeal. Id. at 22:4–25:24. In sum, the Court concludes that Plaintiffs have standing to pursue their CIPA claims and that Plaintiffs state cognizable claims for Invasion of Privacy, Intrusion Upon Seclusion, Wiretapping, Use of a Pen Register, Fraud, and Unjust Enrichment. Therefore, dismissal is not warranted. A. Requests For Judicial Notice Defendants filed two Requests for Judicial Notice. In their first Request, Defendants request the Court take judicial notice of twelve documents:

1. The Assembly Committee on Public Safety’s April 7, 2015, analysis of Assembly Bill 929, a true and correct copy of which is attached hereto as Exhibit A.

2. The Assembly Committee on Privacy and Consumer Protection’s 3. The Assembly Committee on Appropriations’ April 29, 2015, analysis of Assembly Bill 929, a true and correct copy of which is attached hereto as Exhibit C.

4. The Assembly Committee on Public Safety’s March 29, 2016, analysis of Assembly Bill 1924, a true and correct copy of which is attached hereto as Exhibit D.

5. The Assembly Committee on Appropriations’ May 4, 2016, analysis of Assembly Bill 1924, a true and correct copy of which is attached hereto as Exhibit E.

6. The Senate Committee on Public Safety’s June 28, 2016, analysis of Assembly Bill 1924, a true and correct copy of which is attached hereto as Exhibit F.

7. Plaintiff Sean Rose’s First Amended Complaint filed on June 27, 2025 in Rose v. Variety Media LLC, No. 25STCV01865, a true and correct copy of which is attached hereto as Exhibit G.

8. Defendant Variety Media, LLC’s Demurrer to Plaintiff’s First Amended Complaint filed on July 28, 2025 in Rose v. Variety Media LLC, No. 25STCV01865, a true and correct copy of which is attached hereto as Exhibit H. 9. The Superior Court’s September 24, 2025, order overruling the defendant’s demurrer in Rose v. Variety Media LLC, No. 25STCV01865 (Cal. Super. Sept. 24, 2025), a true and correct copy of which is attached hereto as Exhibit I.

10. Petitioner Variety Media, LLC’s Petition for Writ of Mandate/And Or Prohibition or Other Appropriate Relief filed on November 21, 2025 in the Court of Appeal, Second Appellate District, a true and correct copy of which is attached hereto as Exhibit J.

11. The Second Appellate District’s January 8, 2026, Order to Show Cause filed in Variety Media, LLC v. The Superior Court of Los Angeles County, No. B350578, a true and correct copy of which is attached hereto as Exhibit K. 12. The online docket for Variety Media, LLC v. The Superior Court of Los Angeles County, No. B350578, a true and correct copy of which is attached hereto as Exhibit L.

ECF No. 32-1. Plaintiffs do not oppose the first Request. See generally Opp. In their second Request, Defendants request the Court take judicial notice of seven documents:

1. The Superior Court’s December 15, 2025 order granting the and correct copy of which is attached hereto as Exhibit A. 2. The Superior Court’s December 10, 2025, order granting the defendant’s motion for judgment on the pleadings in Rodriguez v. Ink America International Group LLC, No. 25STCV15350 (Cal. Super. Dec. 10, 2025), a true and correct copy of which is attached hereto as Exhibit B. 3. The November 28, 2024 Wayback Machine screen capture of Campbell’s product page for Tomato Soup, available at https://web.archive.org/web/20241128204047/https://www.campbell s.com/products/condensed/tomato-soup/, a true and correct copy of which is attached hereto as Exhibit C. 4. The November 4, 2024 Wayback Machine screen capture of Pacific Foods’ product page for Free Range Chicken Broth, available at https://web.archive.org/web/20241104080701/https://www.pacificfo ods.com/products/pacificfoods/free-range-chicken-broth/, a true and correct copy of which is attached hereto as Exhibit D. 5. The November 12, 2024 Wayback Machine screen capture of Michael Angelo’s home page, available at https://web.archive.org/web/20241112224229/https://michaelangelo s.com/, a true and correct copy of which is attached hereto as Exhibit E. 6. The December 2, 2022 Wayback Machine screen capture of Motorola’s home page, available at https://web.archive.org/web/20221202040745/https://www.motorola .com/us/, a true and correct copy of which is attached hereto as Exhibit F. 7. The March 14, 2023 Wayback Machine screen capture of Burger King’s home page, available at https://web.archive.org/web/20230314141733/https://www.bk.com/, a true and correct copy of which is attached hereto as Exhibit G. ECF No. 38. Plaintiffs oppose the second Request, arguing that Defendants “could have, but did not, introduce these issues for the first time in their original motion or seek judicial notice of the documents then,” and that Defendants improperly seek to invoke the documents for the truth of facts stated therein. ECF No. 39. Normally, when adjudicating a motion to dismiss brought pursuant to Rule 12(b)(6), the Court’s consideration of extra-pleading materials is limited and matters outside of the pleading cannot be considered without converting the motion into a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6), 12(d). However, there are two exceptions—the incorporation-by- reference doctrine and judicial notice. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 Under the Federal Rules of Evidence, the Court may take judicial notice of matters that are (1) generally known within the trial court’s territorial jurisdiction; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). The Court takes judicial notice of Exhibits A–F (ECF No. 32-1 at 6–56) to Defendants’ first Request because they are legislative materials which are a proper subject of judicial notice. See In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1025 (N.D. Cal. 2014) (“Exhibit B is a legislative history report, which is also a proper subject of judicial notice.”); Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“Legislative history is properly a subject of judicial notice.”). The Court takes judicial notice of Exhibits G–L (ECF No. 32-1 at 57–226) to Defendants’ first Request because they are state court records which are a proper subject of judicial notice. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through PACER.”); Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting court may take judicial notice of “documents on file in federal or state courts”). However, because Plaintiffs do not rely on any of these documents in their FAC, the Court does not “consider these documents for the truth of the matters asserted therein.” In re Bare Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 2010). Accordingly, the Court GRANTS Defendants’ first Request for Judicial Notice (ECF No. 32-1). Because Plaintiffs oppose Defendants’ second Request for Judicial Notice, and the Court concludes that the documents in that Request would not alter the Court’s analysis in this order, the Court DENIES as moot Defendants’ second Request for Judicial Notice (ECF No. 38). B. Jurisdictional Arguments Defendants move to dismiss Plaintiffs’ CIPA claims (Claims 3 and 4 of the FAC) because Plaintiffs lack Article III standing to pursue these claims. Mot. at 4:13–6:5. Defendants argue that for these claims, Plaintiffs fail to establish an injury in fact. Id. The Court must address this argument before reaching Defendants’ other arguments on the merits of Plaintiffs’ claims. See, Cir. 2019) (“Standing is the threshold issue in any suit.”). “Article III of the U.S. Constitution authorizes the judiciary to adjudicate only ‘cases’ and ‘controversies.’” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018). “The doctrine of standing is ‘an essential and unchanging part of the case-or-controversy requirement of Article III.’” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” NEI, 926 F.3d at 532 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)) (internal quotations omitted). The familiar injury-in-fact requirement mandates that a plaintiff show they “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. (citing Lujan, 504 U.S. at 560) (cleaned up). Thus, to satisfy Article III, a plaintiff’s injury must be “concrete—that is, real, and not abstract.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021) (cleaned up). Simply put, “[n]o concrete harm, no standing.” Id. at 417. To determine whether a plaintiff has alleged a concrete injury, a court must “look to the specific underlying harm experienced by the plaintiff and compare it, in detail, to a specific common-law tort.” Popa v. Microsoft Corp., 153 F.4th 784, 790–91 (9th Cir. 2025) (emphasis in original). Here, Defendants launch a facial attack on jurisdiction as they argue that Plaintiffs’ allegations in the FAC do not establish a concrete injury sufficient for an injury in fact. Defendants argue that Plaintiffs’ alleged harm—“collection of their search inquiries for food products on the website, browsing activity, and the items they added to their carts”—is “not concrete because there is no reasonable expectation of privacy in the allegedly collected data and because the alleged collection does not constitute highly offensive conduct historically actionable at common law.” Mot. at 5:9–23 (internal citations omitted). Essentially, Defendants do not dispute that harm arising from an invasion of privacy can supply the basis for standing—they quarrel with the sufficiency of Plaintiff’s allegations regarding their alleged harm from an invasion seclusion” can be concrete). Plaintiffs respond that their allegations—that “Defendants presented Plaintiffs with a mere illusion of control over their information and then allowed the Third Parties to collect that information anyway”—sufficiently establish a concrete injury. Opp. at 3:13–5:9. As discussed below, the Court finds that Plaintiffs plausibly allege claims for invasion of privacy. Moreover, Plaintiffs allege specific harm arising from Defendants’ violation of their privacy rights. Plaintiffs allege that Defendants permit the Third Parties to place tracking cookies on Plaintiffs’ devices and browsers to collect, track, and compile their “Private Communications, including their browsing history, visit history, website interactions, user input data, demographic information, interests and preferences, shopping behaviors, device information, referring URLs, session information, user identifiers, and/or geolocation data—including whether a user is located in California.” Opp. at 3:23–4:2 (citing FAC at p. 93 ¶ 165). And Defendants allegedly permit this data collection despite telling Plaintiffs they will not share Plaintiffs’ information via tracking cookies. FAC ¶ 4. The common law right to privacy “encompasses the individual’s control of information concerning his or her person.” In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020) (cleaned up). As such, the Court finds that Plaintiffs’ allegations that Defendants permitted collection of a large amount of information about Plaintiffs without giving them a “meaningful opportunity to control or prevent the unauthorized exploration of their private lives” establish Article III standing for Claims 3 and 4. Id. at 599; cf. Gabrielli v. Motorola Mobility LLC, No. 24-cv-09533-JST, 2025 WL 1939957, at *6 (N.D. Cal. July 14, 2025) (“Gabrielli’s allegations that Motorola deprived him control of personal information regarding his digital activity and profile are sufficient to establish a concrete injury to his right to privacy and confer standing.”); Gabrielli v. Haleon US Inc., 815 F. Supp. 3d 852, 865 (N.D. Cal. 2025) (same); Pemberton v. Rest. Brands Int’l, Inc., No. 25-cv-03647-JSC, 2025 WL 3268404, at *3 (N.D. Cal. Nov. 24, 2025) (“Plaintiff therefore alleges Defendants deprived him of control of his personal information regarding his online activity, which is a concrete injury to his right to privacy sufficient for Article III standing.”). Defendants’ argument that “Plaintiffs’ cookie banner allegations do not change” the defendant’s placement of cookies on a user’s device after the user expressly rejects those cookies constitutes a concrete injury. See Opp. at 4:10–19 (collecting cases). Defendants’ lone case to the contrary is a “self-proclaimed outlier.” Id. at 4:23–5:9; see Garcia v. Blackhawk Network, Inc., No. 2:25-cv-07550-JLS-SSC, 2026 WL 925028, at *5 (C.D. Cal. Apr. 1, 2026) (“The Court is aware that some other Courts have held that the misrepresentation alone is enough to meet the highly offensive bar, but the Court does not find the reasoning persuasive.”) (citing Wiley v. Universal Music Grp., Inc., 826 F. Supp. 3d 1121, 1133 (N.D. Cal. 2025)). Defendants are incorrect that a misrepresentation regarding cookie opt-out has no bearing on whether tracking technology results in highly offensive conduct. Reply at 3:12–20. The California Supreme Court has instructed courts to consider “the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives,” in assessing the offensiveness of a privacy intrusion. Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 26 (1994). As such, Defendants’ alleged improper conduct—gaining access to Plaintiffs’ online activities by telling them that their activities would not be tracked while permitting third parties to collect data from Plaintiffs—is relevant to whether the intrusion was highly offensive. Therefore, Plaintiffs’ cookie banner allegations support that their injury was concrete. Cf. Shah v. MyFitnessPal, Inc., 824 F. Supp. 3d 906, 917 (N.D. Cal. 2026) (finding plaintiffs sufficiently alleged highly offensive conduct where defendant’s deceptive conduct “not only misled users into thinking that their opt outs would be effective but led them to engage in tracked conduct they otherwise would not have undertaken”). Finally, Defendants’ assertion that “Plaintiffs’ allegations are like those in Popa” falls flat. Reply at 2:4–17. Indeed, courts in this district have rejected this same argument. Opp. at 4:10– 23. And for good reason. In Popa, the Ninth Circuit analogized the tracking of a person’s interactions with a single website “to a store clerk’s observing shoppers in order to identify aisles that are particularly popular or to spot problems that disrupt potential sales.” Popa, 153 F.4th at 791. But unlike in Popa, Plaintiffs allege that they were told by Defendants that they would not be tracked, yet Defendants, along with other third parties, gathered broad swaths of information Plaintiffs’ case, it is like a store clerk telling shoppers they would not be tracked by anyone, then secretly placing tracking devices on shoppers so that third parties could follow the shoppers around outside the store for periods of time (up to a year or more) to collect information about the shoppers. This is not the same as in Popa. Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claims 3 and 4 under Rule 12(b)(1). C. Sufficiency Of Claims Defendants move to dismiss all Plaintiffs’ claims for failing to state a cognizable claim. Mot. at 1:25–2:9. 1. Invasion of Privacy And Intrusion Upon Seclusion Claims (Claims 1, 2) Plaintiffs allege that Defendants invaded their legally protected privacy interests, including those under the California constitution. FAC pp. 91–94 ¶¶ 160–71. Plaintiffs further allege that Defendants intentionally intruded upon the solitude or seclusion of Plaintiffs when they used the Websites. Id. pp. 94–96 ¶¶ 172–81. Defendants argue that Plaintiffs’ claims for Invasion of Privacy and Intrusion Upon Seclusion fail because (1) “Plaintiffs have no reasonable expectation of privacy in information voluntarily provided on the Websites”; and (2) “the alleged conduct is not so egregious as to violate societal norms.” Mot. at 2:5–7, 18:13–20:20. Privacy is an inalienable right of all Californians. Hill, 7 Cal. 4th at 16 (citing Cal. Const. art. I § 1). In California, there are two sources of protection for privacy: the common law and the state constitution. Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 227 (1998). The common law action for intrusion into private places encompasses “unconsented-to physical intrusion into the home, . . . as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.” Id. at 230–31. The “action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” Id. at 231. As to the first element, “[t]he tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” Id. at 232. Relevant factors in assessing reasonableness subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286–87 (2009). In determining the offensiveness of an invasion of a privacy interest,

common law courts consider, among other things: the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded. Hill, 7 Cal. 4th at 26 (cleaned up). A “plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” Id. at 39–40. “Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant’s conduct constitutes a serious invasion of privacy are mixed questions of law and fact.” Id. at 40 (cleaned up). Because causes of action under the common law and state constitution contain parallel elements, courts consider the two claims together under the following rubric: “(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.” Hernandez, 47 Cal. 4th at 288. Here, the Court finds that Plaintiffs sufficiently allege an invasion of privacy claim under at least the California constitution and a common law intrusion upon seclusion claim. First, Defendants argue that as Internet users, Plaintiffs have no reasonable expectation of privacy in information voluntarily provided on the Websites. Mot. at 2:5–7, 18:13–20:20. Plaintiffs contend that they “had a reasonable expectation of privacy based on both the information at issue and the manner in which Defendants took it.” Opp. at 5:23–7:11. To be sure, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so “voluntarily” provide information to the Websites—they provided information under the false pretense that their information would not be shared with third parties. See FAC p. 83 ¶ 130, p. 86 ¶ 140, p. 88 ¶ 150 (alleging Plaintiffs “would not have used the Websites” had they known that Defendants’ representations regarding cookies opt-out were untrue). Therefore, Defendants’ alleged conduct of giving users a choice to opt-out of tracking cookies created a reasonable expectation that Plaintiffs’ information would remain private despite their use of the Websites. Cf. Walsh v. Dollar Tree Stores, Inc., No. 25-cv-01601-SVK, 2025 WL 2939229, at *14 (N.D. Cal. Oct. 16, 2025) (“Dollar Tree itself creates a reasonable expectation of privacy when it presents customers with a Cookie Banner permitting them to ‘Reject Advertising Cookies.’”) (emphasis in original). Defendants next argue that Plaintiffs only allege what the cookies can collect, not what data the cookies actually collected from them. Mot. at 18:26–19:22; Reply at 2 n.1. Plaintiffs allege that the Websites gather a variety of data after users opt-out of tracking cookies and that Plaintiffs used the Websites after opting-out of cookies. FAC ¶¶ 59–63, 68, 72–90, p. 81 ¶ 125, p. 84 ¶¶ 134–36, p. 87 ¶ 145; see Opp. at 6:7–28. A reasonable inference exists that the Third Parties’ cookies did in fact gather several types of data from Plaintiffs upon using the Websites. To that end, contrary to Defendants’ assertion, Plaintiffs are not required to plead “definitive knowledge” of what data were collected about Plaintiffs. Mot. at 19:20–22. Plaintiffs’ allegations are sufficient at the pleadings stage, especially where knowledge of how the Websites function is within Defendants’ exclusive control. Opp. at 19:28–20:2; see Scheibe v. ProSupps USA, LLC, 141 F.4th 1094, 1100 (9th Cir. 2025) (“And the fact that defendants may have exclusive control and possession of critical facts—like their own product inventory—cannot categorically prevent plaintiffs from stating a plausible claim.”). Finally, Defendants argue that Plaintiffs fail to show that collection of their information is “highly offensive” given that Defendants did no more than engage in “routine behavior.” Mot. at 19:23–20:20. Plaintiffs contend that “Defendants’ conduct was highly offensive because of both what Defendants collected and the deceptive way they did so.” Opp. at 7:12–9:11 (emphasis in information about Plaintiffs by tracking them on multiple websites across time, and creating detailed consumer profiles for Plaintiffs, even after Defendants assured Plaintiffs that their data would not be compiled. Id. at 7:12–8:10 (citing FAC ¶¶ 4–6, 41, 47, 50, 88). Whether conduct is offensive or serious is a highly fact-specific inquiry. See Williams v. Facebook, Inc., 384 F. Supp. 3d 1043, 1054 (N.D. Cal. 2018) (explaining whether conduct is “highly offensive to current privacy norms” is “a factual question best left for a jury”) (cleaned up). Thus, “courts must be reluctant to reach a conclusion at the pleading stage about how offensive or serious the privacy intrusion is.” In re Facebook, Inc., Consumer Priv. User Profile Litig., 402 F. Supp. 3d 767, 797 (N.D. Cal. 2019). In sum, the Court finds that Plaintiffs’ allegations that Defendants permitted a mass accumulation of data from Plaintiffs after allowing Plaintiffs to opt-out of that process sufficiently establish a “highly offensive” intrusion of privacy. Cf. Krzyzek v. OpenX Techs., Inc., 817 F. Supp. 3d 857, 863–64 (N.D. Cal. 2026) (finding plaintiffs sufficiently pleaded a “highly offensive intrusion of privacy” where plaintiffs alleged defendant “compiled detailed user profiles by tracking plaintiffs’ interactions across many websites, including sensitive browsing activity,” and by tracking “plaintiffs’ future web browsing activity across the internet”); Shah, 824 F. Supp. 3d at 917 (finding plaintiffs sufficiently alleged highly offensive conduct based on defendant’s deceptive conduct). Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claims 1 and 2 under Rule 12(b)(6). 2. Wiretapping In Violation Of CIPA Claim (Claim 3) Plaintiffs allege that Defendants violated CIPA’s wiretapping provision, California Penal Code § 631 (“Section 631”). FAC pp. 96–99 ¶¶ 182–96. Defendants argue that Plaintiffs’ Section 631 claim fails because Plaintiffs fail to allege that (1) “the third-party vendors read or attempted to read their communications while in transit”; or (2) “Defendants knowingly and intentionally aided any such violation.” Mot. at 2:2–5, 13:13–18:12. Section 631 “broadly prohibits the interception of wire communications and disclosure of the contents of such intercepted communications.” Tavernetti v. Superior Ct., 22 Cal. 3d 187, 190 and mutually independent patterns of conduct: intentional wiretapping, willfully attempting to learn the contents or meaning of a communication in transit over a wire, and attempting to use or communicate information obtained as a result of engaging in either of the previous two activities.” Id. at 192. “Liability also may be imposed on a defendant who ‘aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things’ that are unlawful under” Section 631. Barrales v. Reckitt Benckiser LLC, No. 25- cv-10643-BLF, 2026 WL 2212867, at *10 (N.D. Cal. July 31, 2026) (citing Cal. Pen. Code § 631(a)). Here, the Court finds that Plaintiffs sufficiently allege a claim under Section 631. Plaintiffs do not allege that Defendants violated the first clause of Section 631; instead, they allege Defendants violated the second and third clauses through aiding and abetting the Third Parties. Opp. at 14:1–15, n.6. First, contrary to Defendants’ assertion, Plaintiffs sufficiently allege that the Third Parties intercept users’ messages while in transit. Mot. at 14:23–17:2. “Interception requires ‘acquisition contemporaneous with transmission.’” Asercion v. Ulta Salon, Cosmetics & Fragrance, Inc., No. 26-cv-02442-RFL, 2026 WL 2453175, at *1 (N.D. Cal. Aug. 21, 2026) (citation omitted). Plaintiffs allege that the Third Parties’ tracking cookies track users in real time; Plaintiffs then detail how the cookies intercept users’ communications while in transit from users’ browsers to Defendants’ Websites. Opp. at 15:15–25 (citing FAC ¶¶ 26, 118–28). The Court will not undertake an in-depth investigation at the pleadings stage regarding whether the information gathered by the Third Parties is taken after being in “storage.” See Mot. at 16:19–24 (“each communication was in electronic storage before the next occurred”); see also Reply at 7:26–9:4. Taken as true, Plaintiffs’ allegations show that the Third Parties intercepted the contents of their communications in real time as the communications traveled to the Websites. Cf. Limas v. Wayfair LLC, No. CV-25-11185-DMG(EX), 2026 WL 2351592, at *4–5 (C.D. Cal. Aug. 13, 2026) (finding plaintiff’s allegations sufficient “to demonstrate that information was intercepted in transit” where plaintiff alleged interception in real time when the tracking tool loaded on his browser and explained how the tool worked and what information it intercepted). violations. Defendants argue that Plaintiffs merely allege that Defendants assisted the Third Parties, not that they knew the Third Parties’ actions violated Section 631. Mot. at 17:4–18:12. Not so. Plaintiffs allege that Defendants affirmatively programmed their Websites to include the Third Parties’ cookies, agreed to permit the Third Parties to collect data from users, had control over the cookies and how they operated, did not disable the cookies when users opted out of them, and benefitted from the cookies. Opp. at 17:11–19:12; see FAC ¶¶ 3–5, 22, 30, 41–42, pp. 101–02 ¶¶ 216–19. These allegations give rise to a plausible inference that Defendants knew the tracking cookies constituted a breach of duty under Section 631 through data harvesting and assisted or encouraged the conduct by installing the cookies on their Websites. Cf. Limas, 2026 WL 2351592, at *6. Plaintiffs thus sufficiently allege intent at this stage. See Saunders v. Superior Ct., 27 Cal. App. 4th 832, 846 (1994) (“Liability may also be imposed on one who aids and abets the commission of an intentional tort if the person [] knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act[.]”). Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claim 3 under Rule 12(b)(6). 3. Use Of A Pen Register In Violation Of CIPA Claim (Claim 4) Plaintiffs allege that Defendants violated CIPA’s pen register provision, California Penal Code § 638.51 (“Section 638.51”). FAC pp. 99–101 ¶¶ 197–207. Defendants argue that Plaintiffs’ Section 638.51 claim fails because (1) that provision “does not apply to cookies on websites”; and (2) “even if it did, the cookies do not meet the statutory definition because they do not collect only ‘dialing, routing, addressing, or signaling’ information.” Mot. at 1:25–2:2, 6:6– 13:12. With limited exceptions not applicable here, Section 638.51 states that “a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.” Cal. Pen. Code § 638.51(a). A “pen register” is “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.” Id. at § 638.50(c). Here, the Court finds that Plaintiffs sufficiently allege a claim under Section 638.51. Plaintiffs allege that the “Third Parties’ cookies and the corresponding software code installed by Defendants on their Websites are each pen registers.” FAC p. 100 ¶ 201. The parties dispute whether Section 638.51 applies to websites on the Internet. Compare Mot. at 6:6–13 (arguing Section 638.51 does not apply “to alleged tracking on the Internet” because it only applies to telephones) with Opp. at 9:25–10:12 (arguing Section 638.51 “applies to websites”). When interpreting California statutes, courts “begin with the plain, commonsense meaning of the language used by the Legislature. If the language is unambiguous, the plain meaning controls.” Riverside Cnty. Sheriff’s Dep’t v. Stiglitz, 60 Cal. 4th 624, 630 (2014) (cleaned up). Section 638.51 applies to pen registers which record or decode “information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.” Cal. Pen. Code §§ 638.50(b), 638.51(a). The Court agrees with Plaintiffs that, by their plain language, the statutes apply to electronic communications “with no limitation to telephones.” Opp. at 9:25–10:1. Contrary to Defendants’ assertion, there is no ambiguity as to whether Section 638.51 is restricted to telephone communications. Reply at 4:23–6:16. On a motion to dismiss, the Court need go no further. Because the plain language of the statutes plausibly supports Plaintiffs’ theory that Section 638.51 applies to websites, Plaintiffs’ Section 638.51 claim is not precluded at this juncture. Defendants next argue that the tracking cookies are not pen registers because they collect the contents of communications. Mot. at 11:15–13:12; Reply at 6:17–7:25. It is true that the law states that pen registers record or decode “dialing, routing, addressing, or signaling information . . . but not the contents of a communication.” Cal. Pen. Code § 638.50(b). However, Plaintiffs allege that tracking cookies may track signaling/addressing information or may track the substance Plaintiffs’ allegations show that at least some cookies focus on obtaining signaling and addressing information. This is all that is required at this juncture. Cf. In re Meta Pixel Tax Filing Cases, 793 F. Supp. 3d 1147, 1155 (N.D. Cal. 2025) (“If the various functionalities within the Meta Pixel operate independently from one another, as plaintiffs plausibly allege, the process that records metadata in a pen register-like manner is a separate ‘device’ or ‘process’ from the one that collects the contents of users’ communications.”). Further, while the Court need not pass on the issue here, courts in this district have rejected Defendants’ argument that Section 638.51 “cannot apply to devices that also collect contents of a communication.” Shah, 824 F. Supp. 3d at 920 (emphasis in original); see Reply at 12 n.9. Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claim 4 under Rule 12(b)(6). 4. Common Law Fraud, Deceit And/Or Misrepresentation Claim (Claim 5) Plaintiffs allege that “Defendants fraudulently and deceptively informed Plaintiffs and Class members that they could opt-out of or reject all unnecessary cookies on the Websites,” and that Plaintiffs relied on these misrepresentations in using the Websites. FAC pp. 101–104 ¶¶ 208– 30. Defendants argue that Plaintiffs’ Fraud claim fails because “Plaintiffs were not injured and suffered no damages.” Mot. at 2:7–8, 20:21–21:23. Defendants further argue that Plaintiffs fail to plead intent with the requisite specificity. Id. at 20:21–21:4. Under California law, the “elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004). “False representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered.” Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 974 (1997) (cleaned up). Fraudulent intent is a question of fact. Beckwith v. Dahl, 205 Cal. App. 4th 1039, 1061 (2012). Under the Federal Rules of Civil Procedure, where a plaintiff asserts a claim sounding in mistake.” Fed. R. Civ. P. 9(b). “Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). However, Rule 9(b) “requires that a plaintiff plead with particularity only the circumstances constituting fraud, while other circumstances, such as intent, may be stated generally.” ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023, 1032 (9th Cir. 2016). Here, the Court finds that Plaintiffs sufficiently allege a fraud claim. First, as Plaintiffs point out, they are not required to plead Defendants’ intent with specificity. Id.; Opp. at 19:13– 20:2. Plaintiffs allege that Defendants voluntarily programmed their Websites to allow third-party tracking cookies that would track Website users’ Private Communications, had control over the cookies’ operation, and permitted the cookies to track Plaintiffs even after telling Plaintiffs they would not be tracked. FAC ¶¶ 22, 29–30, 41–42. These allegations are sufficient at the pleadings stage to show intent. Cf. Haleon, 815 F. Supp. 3d at 873 (finding plaintiff’s allegations that defendant controls all cookies and falsely represented to plaintiff that he could reject all cookies sufficiently allege intent). Second, Defendants argue that Plaintiffs fail to show resulting injury because they “allege no facts establishing that the purported misappropriation of their information actually diminished its value, that Defendants ever intended to sell that information, or that any third party would have purchased it.” Mot. at 21:2–23. Defendants mischaracterize Plaintiffs’ allegations as centering solely on a diminution of value theory for damages. Plaintiffs allege they were harmed when Defendants deprived Plaintiffs of control over their data that holds commercial value and denied Plaintiffs the right to decide whether to accept compensation for their data. Opp. at 20:3–21:23 (citing FAC pp. 80–81 ¶ 120). Plaintiffs further allege a measure of damages apart from a diminution in value theory—“the value of personal data is measured as either the consumer’s willingness to accept compensation to sell her data or the consumer’s willingness to pay to protect her information.” FAC p. 80 ¶ 119. Under California law, “[b]ecause of the extra measure of blameworthiness inhering in fraud,” fraud plaintiffs may recover out-of-pocket damages, benefit- of-the-bargain damages, and punitive damages. Lazar v. Superior Ct., 12 Cal. 4th 631, 646, 649 permitted. Finally, Defendants complain that Plaintiffs cannot allege injury based on a misappropriation of their personal information. Reply at 13:12–14:8. But a defendant’s “tracking and collection practices” can “cause harm or a material risk of harm to [plaintiffs’] interest in controlling their personal information.” In re Facebook, 956 F.3d at 599. This is the exact injury Plaintiffs allege. Therefore, at this stage, Plaintiffs sufficiently allege injury and resulting damages from Defendants’ actions. Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claim 5 under Rule 12(b)(6). 5. Unjust Enrichment Claim (Claim 6) Plaintiffs allege that Defendants are unjustly enriched by enabling the Third Parties to collect the Websites’ users’ Private Communications because “Defendants created and implemented a scheme to increase their own profits through a pervasive pattern of false statements and fraudulent omissions.” FAC pp. 105–06 ¶¶ 231–40. Defendants argue that Plaintiffs’ Unjust Enrichment claim fails because (1) “it is not a standalone cause of action under California law”; and (2) “Plaintiffs do not adequately allege Defendants were ‘enriched’ or that they ‘unjustly’ retained anything of ‘value.’” Mot. at 2:8–9, 21:24–22:3. “Under the law of restitution, an individual may be required to make restitution if he is unjustly enriched at the expense of another.” Ghirardo v. Antonioli, 14 Cal. 4th 39, 51 (1996). “A person is enriched if he receives a benefit at another’s expense.” Id. “Unjust enrichment is not a cause of action. It is just a restitution claim.” De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 870 (2018). As such, an unjust enrichment claim fails where the underlying substantive claims fail. See id. (“Because de Havilland’s right of publicity and false light claims fail, her unjust enrichment claim fails as well.”). Here, the Court finds that Plaintiffs sufficiently allege an unjust enrichment claim. Defendants seem to argue that Plaintiffs cannot bring a claim for unjust enrichment based on the same conduct underlying their other claims. Mot. at 21:24–22:3. But that is wrong. A restitution claim is premised on an underlying substantive claim. De Havilland, 21 Cal. App. 5th at 870. how the restitution they seek differs from the damages they seek. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). Plaintiffs allege that they were harmed by Defendants depriving “consumers of the ability to decide whether, and on what terms, their data may be monetized,” and that Defendants benefitted by profiting from the data unlawfully taken from Plaintiffs, either by using the data themselves or selling it to the Third Parties. Opp. at 21:24– 25:13; see FAC pp. 80–81 ¶¶ 116–20. Construing the allegations in the light most favorable to Plaintiffs—as the Court must—the Court concludes that at this stage, Plaintiffs allege separate theories of relief for damages and restitution. Contra In re Apple Processor Litig., No. 22-16164, 2023 WL 5950622, at *2 (9th Cir. Sept. 13, 2023) (concluding plaintiffs’ equitable claims fail because “they have failed to explain how the money they seek through restitution is any different than the money they seek as damages”) (cleaned up). Accordingly, the Court DENIES Defendants’ Motion to Dismiss Claim 6 under Rule 12(b)(6). D. Stay Defendants argue that if the Court denies their Motion to Dismiss, the Court should stay the case because a “matter bearing directly on the claims in the instant action is currently pending before the California judiciary.” Mot. at 23:4–25:24. “Specifically, the California Court of Appeal is set to resolve whether Section 638.51 applies to website software in Variety Media LLC v. Superior Court, No. B350578.” Id. Plaintiffs contend that a stay is not warranted “simply because another court is considering a defense that might apply to one particular issue in the present case, where full discovery and litigation of other claims must proceed anyway, and where delaying that discovery would harm the plaintiff.” Opp. at 22:14–25:16. A district court has discretionary power to stay proceedings in its own court pending the outcome of an independent proceeding. Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North American Co., 299 U.S. 248, 254 (1936)). In contemplating such a stay, a court must consider “the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly ] questions of law which could be expected to result from a stay.” /d. at 1110 (citation omitted). 2 “Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant 3 in another settles the rule of law that will define the rights of both.” Landis, 299 U.S. at 255. 4 Here, the Court agrees with Plaintiffs that because all their claim survive dismissal, a stay 5 is not warranted. Opp. at 22:14—25:16; contra Haviland v. Rokt US Corp., No. 2:26-cv-00582- 6 DJC-AC, 2026 WL 2279746, at *2 (E.D. Cal. Aug. 7, 2026) (granting stay where plaintiff’s sole 7 claim was under Section 638.51). Indeed, Defendants argue that a stay is necessary, “particularly 8 if the Court dismisses the remainder of Plaintiffs’ claims.” Mot. at 24:6—-9. First, Defendants fail 9 to show “there is no prejudice to the non-moving party.” /d. at 24:10-24. Ifthe California 10 Supreme Court should review the appellate court’s decision, “the stay could remain in effect for a 11 lengthy period of time, perhaps for years.” Yong v. .N.S., 208 F.3d 1116, 1119 (9th Cir. 2000); 12 see Opp. at 23:3-7. This prevents Plaintiffs from moving forward with all their other claims. 13 Second, Defendants fail to show that they will suffer hardship should the Court not stay the case. 14 Mot. at 24:25—25:13. Because the pending appeal affects only one claim, all “the same discovery 15 and motions will be required,” regardless of the outcome of the appeal. Opp. at 23:8—24:10. a 16 || Finally, Defendants’ argument that a stay will conserve judicial resources because it “may serve to 17 eliminate the litigation altogether” fails because Plaintiffs’ other claims are moving forward. Mot. 18 ] at 25:14-24. 19 Accordingly, the Court DENIES Defendants’ request for a stay. 20 Vv. CONCLUSION 21 For the reasons stated above, the Court DENIES Defendants’ Motion to Dismiss. 23 24 Dated: September 8, 2026 25 ALA. |\-4 □ THOMAS S. HIXSON 26 United States Magistrate Judge 27 28