1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22-cv-01985-DMS-KSC SILVIA GARCIA, individually and on
11 behalf of all others similarly situated, ORDER GRANTING DEFENDANT’S 12 Plaintiff, MOTION TO DISMISS v. 13 BUILD.COM, INC., and DOES 1–10, 14 inclusive, 15 Defendants. 16 17 Before the Court is Defendant’s Motion to Dismiss. (ECF No. 10.) Plaintiff brings 18 two claims alleging violations of two provisions of the California Invasion of Privacy Act 19 (CIPA), Cal. Penal Code §§ 631 & 632.7, on behalf of herself and a putative class of others 20 similarly situated, based on interactions with the chat feature on Build.com’s website. For 21 the reasons explained below, the Court grants Defendant’s Motion to Dismiss. Plaintiff’s 22 Complaint is dismissed without prejudice as to the Section 631 claim to the extent it is 23 based on Clause 4 of California Penal Code § 631(a). The Complaint is dismissed with 24 prejudice as to all other claims and theories. 25 I. BACKGROUND 26 Defendant Build.com is “an online home improvement retailer” that operates an e- 27 commerce website. (Def.’s Mem. of P. & A. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) 28 at 8, ECF No. 10-1.) It operates a chat feature on its website which allows customers to 1 ask questions about Build.com’s products and services. (Id.) At some point in the year- 2 long period before Plaintiff Silvia Garcia filed her complaint on November 17, 2022, she 3 visited the Build.com website on her smartphone. (Compl. ¶ 18, ECF No. 1, Ex. A.) When 4 she visited the website, she initiated a chat conversation with Defendant. (Id. ¶¶ 18–19.) 5 Plaintiff alleges that she later learned that Defendant “secretly recorded their conversation 6 or allowed a third party to eavesdrop upon it until after the conversation was completed 7 and additional, highly technical research was completed.” (Id. ¶ 20.) 8 Plaintiff filed this complaint on behalf of herself and a class of “[a]ll persons within 9 California who within the statute of limitations period . . . communicated with Defendant 10 via that chat feature on Defendant’s Website using a cellular telephone . . . [and] whose 11 communications were recorded . . . without prior consent.” (Id. ¶ 22.) Plaintiff brings two 12 claims alleging violations of two provisions of the California Invasion of Privacy Act 13 (CIPA), Cal. Penal Code §§ 631 & 632.7. Defendants filed a motion to dismiss under 14 Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (See Def.’s Mot. to 15 Dismiss.) 16 II. LEGAL STANDARD 17 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 18 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 19 Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal 20 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 21 a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, 22 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 26 “Determining whether a complaint states a plausible claim for relief will . . . be a context- 27 specific task that requires the reviewing court to draw on its judicial experience and 28 common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief 1 above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged” 2 her “claims across the line from conceivable to plausible,” the complaint “must be 3 dismissed.” Id. at 570. 4 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 5 “accept factual allegations in the complaint as true and construe the pleadings in the light 6 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 7 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 8 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 9 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 10 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 11 When a court grants a motion to dismiss a complaint, it must then decide whether to 12 grant leave to amend. Leave to amend should be “freely given” where there is no (1) 13 “undue delay,” (2) “bad faith or dilatory motive,” (3) “undue prejudice to the opposing 14 party” if amendment were allowed, or (4) “futility” in allowing amendment. Foman v. 15 Davis, 371 U.S. 178, 182 (1962). Dismissal without leave to amend is proper only if it is 16 clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest 17 Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). “Leave need not be granted where the 18 amendment of the complaint . . . constitutes an exercise in futility . . . .” Ascon Props., Inc. 19 v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 20 III. DISCUSSION 21 A. Standing 22 Article III of the Constitution requires courts to adjudicate only actual cases or 23 controversies. See U.S. Const. art. III, § 2, cl. 1. To establish Article III standing, “a 24 plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and 25 actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the 26 injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 141 S. 27 Ct. 2190, 2203 (2021). “Standing is determined by the facts that exist at the time the 28 complaint is filed.” Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). “A 1 suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an 2 Article III federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean 3 Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “If the court determines at any time 4 that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 5 12(h)(3). 6 Defendant does not specifically argue that Plaintiff lacks Article III standing, but 7 instead argues that Plaintiff has not alleged an injury sufficient to assert a claim for a 8 violation of CIPA. (Def.’s Mem. at 25.) California law creates a private right of action for 9 “[a]ny person who has been injured by a violation of” one of CIPA’s provisions. Cal. Penal 10 Code § 637.2(a). It appears a plaintiff may more easily show a sufficient statutory injury 11 under CIPA than a sufficient Article III injury. See Cal. Penal Code § 637.2(c) (“It is not 12 a necessary prerequisite . . . that the plaintiff has suffered, or be threatened with, actual 13 damages.”). Therefore, if a plaintiff fails to allege an injury sufficient to satisfy CIPA’s 14 statutory injury requirement, that plaintiff necessarily lacks an injury-in-fact sufficient to 15 satisfy Article III standing. Moreover, a federal court has an independent obligation to 16 determine whether subject-matter jurisdiction exists—which includes whether a plaintiff 17 has standing—even in the absence of a challenge from any party. Arbaugh v. Y&H Corp., 18 546 U.S. 500, 514 (2006). Therefore, the Court analyzes whether Plaintiff has Article III 19 standing to bring this claim and concludes that she does.1 20 1. Injury-in-fact 21 To satisfy Article III standing, “a plaintiff must show . . . that he suffered an injury 22 in fact that is concrete, particularized, and actual or imminent.” TransUnion, 141 S. Ct. at 23 2203. “Congress may ‘elevate to the status of legally cognizable injuries concrete, de facto 24 injuries that were previously inadequate in law.’” Id. at 2204 (quoting Spokeo, Inc. v. 25
26 1 A dismissal for lack of standing is a jurisdictional dismissal and would not bar Plaintiff from raising the 27 same claims in state court, which is not bound by Article III. A dismissal on the merits, however, has res judicata effect. See Cal. Civ. Proc. Code § 1908(a) (a judgment of “a court or judge of this state, or of the 28 1 Robins, 578 U.S. 330, 341 (2016)). However, “Congress’s creation of a statutory 2 prohibition or obligation and a cause of action does not relieve courts of their responsibility 3 to independently decide whether a plaintiff has suffered a concrete harm . . . .” Id. A 4 federal court “cannot treat an injury as ‘concrete’ for Article III purposes based only on 5 [the legislature’s] say-so.” Id. (quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 6 990, 999 n.2 (11th Cir. 2020)). “When a legislature has enacted a ‘bare procedural’ 7 protection, a plaintiff ‘cannot satisfy the demands of Article III’ by pointing only to a 8 violation of that provision, but also must link it to a concrete harm.” Campbell v. Facebook, 9 Inc., 951 F.3d 1106, 1117 (9th Cir. 2020) (quoting Spokeo, 578 U.S. at 342) (emphasis in 10 Campbell). “[C]ourts should assess whether the alleged injury . . . has a ‘close relationship’ 11 to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” 12 TransUnion, 141 S. Ct. at 2204 (quoting Spokeo, 578 U.S. at 341). “That inquiry asks 13 whether plaintiffs have identified a close historical or common-law analogue for their 14 asserted injury” but “does not require an exact duplicate in American history and tradition.” 15 Id. 16 Plaintiff’s complaint is defective, but not for failing to show standing. Although the 17 Complaint alleges that “visitors often share highly sensitive personal data with Defendant 18 via the website chat feature,” (Compl. ¶ 14), Defendant argues that Plaintiff never asserts 19 that she shared “highly sensitive personal data” with Defendant through the chat feature, 20 or that she was injured in any way. (Def.’s Mem. at 26.) Plaintiff responds that a CIPA 21 violation is a violation of privacy rights and is a sufficiently concrete injury-in-fact. The 22 Court agrees. 23 Federal courts in California have reached different conclusions on whether plaintiffs 24 bringing similar CIPA claims based on interactions with a website’s chat feature have 25 demonstrated standing. Compare Licea v. Am. Eagle Outfitters, Inc., No. 22-cv-1702- 26 MWF, 2023 WL 2469630, at *3 (C.D. Cal. Mar. 7, 2023) (plaintiffs adequately alleged 27 injury-in-fact and demonstrated standing because a violation of CIPA is a cognizable 28 violation of privacy rights) and Licea v. Cinmar, LLC, No. 22-cv-6454-MWF, 2023 WL 1 2415592, at *3 (C.D. Cal. Mar. 7, 2023) (same) with Byars v. Sterling Jewelers, Inc., No. 2 22-cv-1456-SB, 2023 WL 2996686, at *4 (C.D. Cal. Apr. 5, 2023) (plaintiff alleges no 3 injury-in-fact sufficient to show standing because she “does not allege that she disclosed 4 any sensitive information” to defendant); see also Lightroller v. Jetblue Airways Corp., 5 No. 23-cv-361-H, 2023 WL 3963823, at *5 (S.D. Cal. June 12, 2023) (where plaintiff 6 alleged that defendant website recorded her interactions with the website in violation of 7 CIPA, plaintiff failed to allege injury-in-fact sufficient to show standing because she did 8 not “allege that she disclosed any personal information” to defendant). 9 The Court concludes that Plaintiff has standing at this stage. Plaintiff alleges that 10 Defendant secretly intercepted and recorded Plaintiff’s chat messages without informing 11 her and without her consent. (Compl. ¶¶ 17, 20–21.) This is a sufficiently concrete and 12 particularized injury. See Am. Eagle Outfitters, 2023 WL 2469630, at *3 (concluding that 13 plaintiff sufficiently alleged injury-in-fact by pleading: “Defendant did not inform him or 14 Class Members that Defendant was secretly recording their conversations or allowing, 15 aiding, and abetting a third party to intercept and eavesdrop on them in real time”). 16 Federal courts within California, including this Court, have held that “violations of 17 Plaintiffs’ statutory rights under CIPA, without more, constitute injury in fact” because 18 unlike a bare procedural violation, a CIPA violation is “‘a violation of privacy rights’” 19 which is a more “‘concrete and particularized harm.’” Osgood v. Main Streat Mktg., LLC, 20 No. 16-cv-2415-GPC, 2017 WL 131829, at *7 (S.D. Cal. Jan. 13, 2017) (quoting Romero 21 v. Securus Techs., Inc., 216 F. Supp. 3d 1078, 1088 (S.D. Cal. 2016)); see also Matera v. 22 Google, Inc., No. 15-cv-4062-LHK, 2016 WL 5339806, at *14 (N.D. Cal. Sept. 23, 2016) 23 (holding that alleged violations of Plaintiff’s statutory rights under CIPA constitute 24 concrete injury-in-fact). Recently, some courts have held that the reasoning in these cases 25 was undermined by the Supreme Court’s 2021 decision in TransUnion, which held that 26 “Article III standing requires a concrete injury even in the context of a statutory violation,” 27 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at 341). See, e.g., Lightroller, 2023 WL 28 3963823, at *3. However, that aspect of TransUnion’s holding was not new; it was a 1 reiteration (and a direct quote) of the Supreme Court’s holding in Spokeo, decided in 2016. 2 Osgood, Romero, and Matera were all decided in light of Spokeo. This Court concludes 3 that TransUnion does not undermine the reasoning in those cases. 4 In Wakefield v. ViSalus, Inc., a decision that came after TransUnion, the Ninth 5 Circuit held that a plaintiff had standing to bring a claim under the Telephone Consumer 6 Protection Act because receipt of unwanted telemarketing phone calls is a concrete injury- 7 in-fact. 51 F.4th 1109, 1118 (9th Cir. 2022). The Ninth Circuit explained: 8 In TransUnion, the Supreme Court reaffirmed the preexisting rule that an intangible injury qualifies as “concrete” when that injury bears a “close 9 relationship to harms traditionally recognized as providing a basis for lawsuits 10 in American courts.” . . . . TransUnion therefore strengthens the principle that an intangible injury is sufficiently “concrete” when (1) Congress created 11 a statutory cause of action for the injury, and (2) the injury has a close 12 historical or common-law analog. 13 Id. (quoting TransUnion, 141 S. Ct. at 2204). This formulation in Wakefield confirms that 14 Plaintiff has standing here. First, the California legislature created a cause of action in the 15 CIPA statute—and it is the cause of action Plaintiff asserts here. See Cal. Penal Code § 16 637.2(a). In addition, the Ninth Circuit concluded in Wakefield that “traditional claims for 17 ‘invasion of privacy, intrusion upon seclusion, and nuisance’” are “evidence of a common- 18 law analog to privacy violations.” 51 F.4th at 1118 (quoting Van Patten v. Vertical Fitness 19 Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)). As in Wakefield, the Court finds that the 20 privacy injury Plaintiff asserts here is sufficiently similar to “a historical or common-law 21 analogue.” TransUnion, 141 S. Ct. at 2204. 22 2. Causation and Redressability 23 Having shown injury-in-fact, the Court concludes that Plaintiff satisfies the two 24 remaining requirements of standing—causation and redressability. Plaintiff has adequately 25 pled that the injury was caused by Defendant Build.com, and an award of money damages 26 would remedy Plaintiff’s injury. 27 B. Merits 28 Plaintiff brings two claims on behalf of herself and the putative class alleging 1 violations of two provisions of the California Invasion of Privacy Act: (1) a violation of 2 California Penal Code § 631, and (2) a violation of California Penal Code § 632.7. The 3 Court concludes that both are insufficiently pled. 4 1. Section 631 Claim 5 Plaintiff has not adequately pled a Section 631 claim. Section 631 makes actionable 6 “three distinct and mutually independent patterns of conduct: intentional wiretapping, 7 wilfully attempting to learn the contents or meaning of a communication in transit over a 8 wire, and attempting to use or communicate information obtained as a result of engaging 9 in either of the previous two activities.” Tavernetti v. Super. Ct. of San Diego Cnty., 22 10 Cal. 3d 187, 192 (1978). Section 631 also imposes liability upon “anyone ‘who aids, agrees 11 with, employs, or conspires with any person or persons to unlawfully do, or permit, or 12 cause to be done any of the’ . . . three bases for liability.” Mastel v. Miniclip SA, 549 F. 13 Supp. 3d 1129, 1134 (E.D. Cal. 2021) (quoting Cal. Penal Code § 631(a)). Specifically, 14 Section 631(a) makes liable: 15 Any person [1] who, by means of any machine, instrument, or contrivance, or in 16 any other manner, intentionally taps, or makes any unauthorized 17 connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or 18 instrument, including the wire, line, cable, or instrument of any internal 19 telephonic communication system, or [2] who willfully and without the consent of all parties to the 20 communication, or in any unauthorized manner, reads, or attempts to 21 read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, 22 line, or cable, or is being sent from, or received at any place within this 23 state; or [3] who uses, or attempts to use, in any manner, or for any purpose, or 24 to communicate in any way, any information so obtained, or 25 [4] 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 26 or things mentioned above in this section 27 . . . . 28 1 Cal. Penal Code § 631(a). Plaintiff asserts Defendant violated all four clauses. 2 First, Defendant cannot be liable under the first three clauses because parties to a 3 conversation cannot eavesdrop on their own conversations. See Warden v. Kahn, 99 Cal. 4 App. 3d 805, 811 (1979) (distinguishing “eavesdropping by a third party” from “recording 5 by a participant to a conversation”); Rogers v. Ulrich, 52 Cal. App. 3d 894, 899 (1975) (“It 6 is never a secret to one party to a conversation that the other party is listening to the 7 conversation . . . .”). Plaintiff alleges that she “used a smart phone” to “visit[] Defendant’s 8 Website,” and “had a conversation with Defendant,” which “Defendant secretly recorded.” 9 (Compl. ¶ 18, 20, emphasis added.) These facts cannot plausibly allege a violation of the 10 first three clauses of Section 631(a) because Plaintiff alleges that Defendant was the 11 intended recipient of the chat communications. See Ribas v. Clark, 38 Cal. 3d 355, 360 12 n.3 (1985) (“[S]ection 631 does not penalize the secret recording of a conversation by one 13 of the participants.”); In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 607 (9th 14 Cir. 2020) (“[Section 631] contain[s] an exception from liability for a person who is a 15 ‘party’ to the communication . . . .”). 16 This leaves only Plaintiff’s theory based on Clause 4. Plaintiff alleges “Defendant 17 allow[ed] at least one independent third-party vendor . . . to use a software device or 18 contrivance to secretly intercept . . ., eavesdrop upon, and store transcripts of Defendant’s 19 chat communications with unsuspecting website visitors.” (Compl. ¶ 12.) This claim fails 20 because the Complaint does not plausibly allege the existence of a third-party 21 eavesdropper. Plaintiff speculates that the eavesdropper may be WhosOn or SalesForce, 22 (see id.), but such a speculative, “‘naked assertion,’ devoid of ‘further factual 23 enhancement’” cannot plausibly allege the existence of a third-party eavesdropper. Iqbal, 24 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 25 In addition, Plaintiff’s allegation that Defendant “has covertly embedded software 26 code . . . into its website that automatically intercepts, records, and creates transcripts of all 27 conversation using the website chat feature,” (Compl. ¶ 12), does not assist Plaintiff 28 because it points to Defendant’s own conduct, not the conduct of a third-party. At best, 1 this allegation suggests that Defendant employs a third-party software service as a tool to 2 record its own data. See Graham v. Noom, 533 F. Supp. 3d 823, 832 (N.D. Cal. 2021) 3 (concluding that third-party software service was an “extension of” defendant and merely 4 “provide[d] a tool . . . like [a] tape recorder . . . that allow[ed] [defendant] to record and 5 analyze its own data”). As explained, this cannot be a basis for liability because a 6 participant to a conversation cannot eavesdrop on their own conversation. In cases where 7 courts have found software companies to be third-party eavesdroppers, those third parties 8 had mined information from other websites and used that information for their own 9 purposes. Id.; see, e.g., In re Facebook, 956 F.3d at 596, 607–08 (after companies 10 embedded Facebook plug-ins onto their websites, Facebook collected data on visitors to 11 those websites and sold the data to advertisers); Revitch v. New Moosejaw, LLC, No. 18- 12 cv-6827-VC, 2019 WL 5485330, at *1–2 (N.D. Cal. Oct. 23, 2019) (website embedded 13 third-party software on its site, and that third party used the data it gathered to create a 14 marketing database of consumer information). Here, Plaintiff does not allege that the third 15 party “intercepted and used the data itself.” Williams v. What If Holdings, LLC, No. 22- 16 cv-3780-WHA, 2022 WL 17869275, at *3 (N.D. Cal. Dec. 22, 2022). 17 Accordingly, Plaintiff’s Section 631 claim is dismissed with prejudice to the extent 18 it is based on Clauses 1–3 of California Penal Code § 631(a), because there is no way for 19 Plaintiff to plead around the key defect that Defendant cannot be liable for eavesdropping 20 on its own conversation. See Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 21 701 F.2d 1276, 1293 (9th Cir. 1983) (“[F]utile amendments should not be permitted.”). 22 Plaintiff’s Section 631 claim is dismissed without prejudice to the extent it is based on 23 Clause 4. The Court need not reach Defendant’s other arguments. 24 2. Section 632.7 Claim 25 Plaintiff also has not adequately pled a Section 632.7 claim. Section 632.7 imposes 26 liability upon anyone who intercepts and intentionally records telephone communications 27 without the consent of all participants in the communication. Specifically, Section 632.7(a) 28 makes liable: 1 [e]very person who, without the consent of all of the parties to a communication, intercepts or receives and intentionally records, or assists in 2 the interception or reception and intentional recordation of, a communication 3 transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a 4 landline telephone, or a cordless telephone and a cellular radio telephone … . 5 6 Cal. Penal Code § 632.7(a). A plain reading of the text makes clear that the statute only 7 applies to communications transmitted by telephone, not internet. Plaintiff seems to argue 8 that Defendant’s conduct violated Section 632.7 because Plaintiff’s communications with 9 Defendant through the website chat function on her smart phone amounted to 10 “communication . . . transmitted via telephony.” (See Compl. ¶¶ 18, 37–39.) This stretches 11 the statutory language too far. “The plaint text of § 632.7” states that “the communication 12 must have a cellular radio or cordless telephone on one side, and a cellular radio, cordless, 13 or landline telephone on the other side” to be actionable under the statute. Montantes v. 14 Inventure Foods, No. 14-cv-1128-MWF, 2014 WL 3305578, at *4 (C.D. Cal. July 2, 2014). 15 Transmission by internet through a device called “phone” is not sufficient. 16 Plaintiff invites the Court to construe the term “landline telephone” in the statute 17 broadly “as encompassing Defendant’s computer equipment, which connected with 18 Plaintiff’s smart phone to transmit and receive Plaintiff’s chat communications,” and 19 argues that “[t]he Internet works through a series of networks that connect devices around 20 the world through telephone lines.” (Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. to 21 Dismiss at 21, ECF No. 12.) However, as explained, Section 632.7 “unambiguously limits 22 its reach to communications between various types of telephones,” which are specifically 23 identified in the statute. Valenzuela v. Keurig Green Mountain, Inc., No. 22-CV-09042- 24 JSC, 2023 WL 3707181, at *6 (N.D. Cal. May 24, 2023). Plaintiff “makes no persuasive 25 argument” that “the statute contemplates internet communications between a smart phone 26 and an unspecified device on Defendant’s end.” Id. Accordingly, Plaintiff’s Section 632.7 27 claim is dismissed with prejudice because there is no way for Plaintiff to plead around the 28 fundamental defect that the statute does not apply to internet chat communications at issue 1 ||here. See Klamath-Lake Pharm. Ass’n, 701 F.2d at 1293. 2 IV. CONCLUSION 3 For the reasons explained above, the Court GRANTS Defendant’s Motion to 4 ||Dismiss. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE as to the 5 || Section 631 claim to the extent it is based on Clause 4 of California Penal Code § 631(a); 6 DISMISSED WITH PREJUDICE as to all other claims and theories. Within 7 || fourteen (14) days of the date of this Order, Plaintiff may file an amended complaint. 8 IT IS SO ORDERED. 9 10 || Dated: July 13, 2023 \ S | J \ 11 : Hon. Dana M. Sabraw, Chief Judge 12 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28