1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REBEKA RODRIGUEZ, BIANCA Case No.: 3:25-cv-02694-GPC-KSC GARCIA, BARBARA WAINWRIGHT 12 AND TOMMY PURSCELLEY, ORDER GRANTING IN PART AND 13 individually and on behalf of all others DENYING IN PART DEFENDANT’S similarly situated, MOTION TO DISMISS OR STRIKE 14
Plaintiffs, 15 [ECF No. 10] v. 16 ENDURANCE WARRANTY 17 SERVICES, L.L.C., an Illinois entity, 18 Defendant. 19
20 Before the Court is Defendant’s motion to dismiss or, in the alternative, to strike 21 Plaintiffs’ First Amended Complaint. ECF No. 10. The motion to dismiss or strike has 22 been fully briefed. ECF Nos. 12, 13. On March 27, 2026, the Court held a hearing on this 23 matter. ECF No. 15. For the reasons below, the Court GRANTS in part and DENIES in 24 part Defendant’s motion to dismiss. 25 / / / 26 / / / 27 1 FACTUAL BACKGROUND 2 Defendant Endurance Warranty Services, LLC (“Defendant”) is an Illinois 3 business that sells vehicle service contracts and auto warranties. ECF No. 8 (“FAC”) ¶¶ 4 1, 5. Plaintiffs allege that Defendant “specializes in high-pressure sales tactics” and 5 markets its contracts through “aggressive, urgency-driven solicitations designed to trick 6 unwary consumers into purchasing costly and unnecessary extended auto warranties.” Id. 7 ¶ 1. Defendant has been subject to federal and state regulatory action and is a known 8 “prolific spammer.” Id. ¶¶ 1, 2. Plaintiffs estimate that Defendant “is responsible for over 9 100,000 spam emails to Californians each year.” Id. ¶ 15. 10 Plaintiffs Rebeka Rodriguez, Bianca Garcia, Barbara Wainwright, and Tommy 11 Purscelley (collectively, “Plaintiffs”) were all recipients of “spam mail promoting 12 Defendant’s products.” See id. ¶¶ 8-11. Specifically, Plaintiff Rebeka Rodriguez 13 (“Rodriguez”) received an email from DEfQ5@kpyjas.cl with a subject line stating, 14 “Congrats! REBEKA.JOHANNA23 -You're Eligible For Discounted Pricing!” Id. ¶ 8. 15 Plaintiff Bianca Garcia (“Garcia”) received the email from 16 ey8151b@b1d.burgundyteapot.com with a subject line stating, “Endurａnce Ｐrｏｍｏ - 17 $300 ｏff ａny nｅw plan.” Id. ¶ 9 (spacing in original). Plaintiff Barbara Wainwright 18 (“Wainwright”) received the email from enduranceautowarranty@martingifts.com with a 19 subject line stating, “Your Endurance Auto Protection Offer - $300 off any new policy.” 20 Id. ¶ 10. Finally, Plaintiff Tommy Purscelley (“Purscelley”) received the email from 21 operations@financial-wellness-tips.com with a subject line of “Dear MR. 22 PURSCELLEY, You're eligible for discounted pricing ��������������.” Id. ¶ 11. 23 After receiving the emails, “each Plaintiff searched the publicly available WHOIS 24 database to identify the sender associated with the domain used in the various “From” 25 fields.” Id. ¶ 12. However, no plaintiff succeeded as “none of the sending domains were 26 registered to, publicly associated with, or traceable to Defendant through WHOIS or any 27 1 other public registry.” Id. Additionally, when each Plaintiff followed the link from the 2 email and were directed to Defendant’s website, the advertised price reduction could not 3 be found. Id. ¶ 13. 4 None of the Plaintiffs consented to receiving commercial email advertisements 5 from Defendant or its marketing agents. Id. ¶ 18. However, each Plaintiff has received 6 multiple similar and unwanted emails from Defendant. Id. ¶ 15. 7 PROCEDURAL HISTORY 8 On November 10, 2025, Plaintiff Rebeka Rodriguez filed a class action complaint 9 against Defendants. ECF No. 1. On December 31, 2025, Plaintiffs filed their First 10 Amended Complaint (“FAC”). ECF No. 10. The FAC alleges Defendant violated the Cal. 11 Bus. & Prof. Code § 17529 with its advertising emails by using a domain name without 12 authorization, using misrepresented header information, and supplying a deceptive 13 subject line. Id. ¶¶ 19-23, 32-36. Defendant moves to dismiss the FAC for failing to state 14 a claim under Federal Rule of Civil Procedure 12(b)(6) and, alternatively, moves to strike 15 the FAC under Federal Rule of Civil Procedure 12(f). ECF No. 10 (“Mot.”) at 9-24.1 16 LEGAL STANDARD 17 I. Motion to Dismiss: Federal Rule of Civil Procedure 12(b)(6) 18 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint and 19 whether it has “state[d] a claim upon which relief can be granted.” Fed. R. Civ. P. 20 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a 21 cognizable legal theory or sufficient facts to support a cognizable legal theory. See 22 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean 23 Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 24
25 26 1 Throughout the order, the pagination for docketed documents is derived from the numbering generated by the ECF system. 27 1 A complaint may survive a motion to dismiss only if, taking all well-pleaded 2 factual allegations as true, it contains factual matter that “state a claim to relief that is 3 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when the 5 factual allegations allow “the court to draw the reasonable inference that the defendant is 6 liable for the misconduct alleged.” Id. In reviewing the plausibility of a complaint, courts 7 must “accept factual allegations in the complaint as true and construe them in the light 8 most favorable to the non-moving party.” Dent v. Nat'l Football League, 968 F.3d 1126, 9 1130 (9th Cir. 2020). But courts do not accept as true allegations that are merely 10 conclusory, unwarranted deductions of fact, or unreasonable inferences. Coronavirus 11 Rep. v. Apple, Inc., 85 F.4th 948, 954 (9th Cir. 2023). Ultimately, the court must be able 12 to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Iqbal, 556 U.S. at 663. 14 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 15 the court determines that the allegation of other facts consistent with the challenged 16 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 17 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 18 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 19 II. Motion to Strike 20 Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a 21 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 22 matter.” A matter is redundant if it “consists of allegations that constitute a needless 23 repetition of other averments or which are foreign to the issue.” Wilkerson v. Butler, 229 24 F.R.D. 166, 170 (E.D. Cal. 2005); see Sliger v. Prospect Mortg., LLC, 789 F. Supp. 2d 25 1212, 1216 (E.D. Cal. 2011) (similar). An immaterial matter lacks “any logical connection 26 with the consequential facts.” Immaterial, Black’s Law Dictionary, (11th ed. 2019); see 27 1 Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (“An ‘immaterial’ 2 matter has no essential or important relationship to the claim for relief or defenses 3 pleaded.”). Impertinent matters have “no substantial relation to the action, and will not 4 affect the court’s decision.” Irrelevant, Black’s Law Dictionary (11th ed. 2019) (entry for 5 “Impertinent” directs to “Irrelevant”); see Cortina, 94 F. Supp. 3d at 1182 (“An 6 ‘impertinent’ allegation is neither necessary nor relevant to the issues involved in the 7 action.”). “The function of a 12(f) motion to strike is to avoid the expenditure of time and 8 money that must arise from litigating spurious issues by dispensing with those issues prior 9 to trial…” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) 10 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 11 grounds 510 U.S. 517 (1994)). 12 “Motions to strike are ‘generally disfavored because they are often used as delaying 13 tactics and because of the limited importance of pleadings in federal practice.’” Cortina, 14 94 F. Supp. 3d at 1182 (quoting Rosales v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. 15 Cal. 2001)). As such, “motions to strike should not be granted unless it is clear that the 16 matter to be stricken could have no possible bearing on the subject matter of the litigation.” 17 Colaprico v. Sun Microsys., Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). “Courts will 18 not grant motions to strike unless ‘convinced that there are no questions of fact, that any 19 questions of law are clear and not in dispute, and that under no set of circumstances could 20 the claim or defense succeed.’” Novick v. UNUM Life Ins. Co. of America, 570 F. Supp. 21 2d 1207, 1208 (C.D. Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 22 2d 556, 561 (C.D. Cal. 2005)). The Court must “view the pleading under attack in the light 23 most favorable to the pleader.” Id. (quoting RDF Media, 372 F. Supp. 2d at 561). 24 DISCUSSION 25 Defendant moves to dismiss under Rule 12(b)(6). Mot. at 11-23. Defendant also 26 moves to strike in the alternative. Id. at 24. 27 1 I. Motion to Dismiss 2 Plaintiffs’ FAC alleges that Defendant’s marketing emails violated each of the 3 three sections of § 17529.5(a). Defendant moves to dismiss each of the three claims on 4 the grounds that: (1) the §§ 17529.5(a)(1), (a)(2) claims are preempted by the CAN- 5 SPAM Act and (2) the §§ 17529.5(a)(1)-(3) theories are deficient under the state statute. 6 Under Cal. Bus. & Prof. Code § 17529.5, “[i]t is unlawful for any person or entity 7 to advertise in a commercial e-mail advertisement either sent from California or sent to a 8 California electronic mail address under any of the following circumstances: 9 (1) The e-mail advertisement contains or is accompanied by a third-party's domain 10 name without the permission of the third party. 11 (2) The e-mail advertisement contains or is accompanied by falsified, 12 misrepresented, or forged header information. This paragraph does not apply to 13 truthful information used by a third party who has been lawfully authorized by 14 the advertiser to use that information. 15 (3) The e-mail advertisement has a subject line that a person knows would be 16 likely to mislead a recipient, acting reasonably under the circumstances, about 17 a material fact regarding the contents or subject matter of the message.” 18 Cal. Bus. & Prof. Code § 17529.5(a). 19 a. CAN-SPAM Act Preemption 20 The CAN-SPAM Act was enacted in response to mounting concerns associated 21 with the growth of spam emails and provides a code of conduct to regulate commercial e- 22 mail messaging practices. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047-48 (9th Cir. 23 2009). As part of this nationwide regulation effort, the statute expressly “supersedes any 24 statute, regulation, or rule of a State or political subdivision of a State that expressly 25 regulates the use of electronic mail to send commercial messages, except to the extent 26 that any such statute, regulation, or rule prohibits falsity or deception in any portion of a 27 1 commercial electronic mail message or information attached thereto.” 15 U.S.C. § 2 7707(b)(1). It specifically does not preempt “(A) State laws that are not specific to 3 electronic mail, including State trespass, contract, or tort law; or (B) other State laws to 4 the extent that those laws relate to acts of fraud or computer crime.” Id. § 7707(b)(2). 5 In essence, while the CAN-SPAM Act broadly preempts state regulation of 6 commercial emails, it also carves out an exception for “state laws that proscribe ‘falsity 7 or deception’ in commercial e-mail communications.” Gordon, 575 F.3d at 1061. State 8 laws that proscribe falsity or deception refer to those that “extend traditional tort 9 theories.” Id. at 1063. In other words, one can escape CAN-SPAM preemption if “the 10 false or deceptive information in a commercial email [is] material.” Silverstein v. 11 Keynetics Inc., 192 F. Supp. 3d 1045, 1048 (N.D. Cal. 2016), aff'd, 727 F. App'x 244 (9th 12 Cir. 2018). In contrast, a state law claim based on mere technical and immaterial 13 allegations of header deficiencies are not encapsulated in traditional tort theories and 14 would, thus, be preempted. Gordon, 575 F.3d at 1064; Asis Internet Servs. v. Member 15 Source Media, LLC, No. 08-CV-1321-EMC, 2010 WL 1610066, at *2 (N.D. Cal. Apr. 16 20, 2010). 17 Defendant contends that Plaintiffs’ Section 17529.5(a)(1) and (a)(2) theories find 18 no basis in traditional tort theories and amount only to technical allegations. Mot. at 15, 19 18. Plaintiffs, in response, maintain that their claims are not preempted and all of the 20 Defendant’s cited cases are distinguishable. See ECF No. 12 (“Opp.”) at 5-9.2 21
22 2 Throughout its opposition, Plaintiffs cite to state court decisions regarding preemption 23 based on the CAN-SPAM Act. See Opp. at 10-16. Plaintiffs even go as far as to argue 24 that the decisions of the state appellate court are binding upon this court. Id. at 12. 25 The Court disagrees. In matters of state law interpretation, “a federal court is bound by the decision of the highest state court.” In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 26 1990). However, in matters of federal law, a federal district court is only bound by its 27 regional circuit court or Supreme Court precedent. See Hutto v. Davis, 454 U.S. 370, 375 1 i. Section 17529.5(a)(1): Domain Name 2 Section 17529(a)(1) is violated when “[t]he e-mail advertisement contains or is 3 accompanied by a third-party's domain name without the permission of the third party.” 4 Cal. Bus. & Prof. Code § 17529.5(a)(1). Plaintiffs allege that Section 17529.5(a)(1) was 5 violated because the emails “advertise Defendant’s products using domain names that 6 were neither owned by, registered to, nor authorized by Defendant, thereby 7 misrepresenting the identity of the sender.” FAC ¶ 19. In turn, Defendant contends that 8 the FAC fails to plead a violation of subsection (a)(1) with specificity and that the use of 9 these third-party domain names is not materially false or misleading within the meaning 10 of the CAN-SPAM Act, preempting the claim. Mot. at 14-17. 11 This subsection focuses on use of a third-party’s domain name without the 12 permission of the third-party. Here, Plaintiffs merely allege in a conclusory fashion that 13 Defendant “used third-party or fabricated domain names without authorization.” FAC ¶ 14 19. There are no factual allegations that identify the third-party owner or registrant of the 15 domain name or support the claim that the domain name was used without authorization 16 to permit “the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Plaintiffs argue 18 that they have provided enough facts at this stage because Rule 9(b) “may be relaxed as 19
20 21 (1982) (““[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts…”). 22 “Preemption is a question of federal law.” Local Union 598 v. J.A. Jones Constr. Co., 846 23 F.2d 1213, 1218 (9th Cir. 1988). Accordingly, this Court is only bound by the caselaw of 24 the Ninth Circuit on this preemption issue, not that of state courts. See Insolvency Servs. Grp., Inc. v. Fed. Express Corp., No. 14-CV-01525-RGK-SSX, 2014 WL 12613262, at 25 *2 (C.D. Cal. May 7, 2014) (“However, federal courts are bound by federal court 26 precedent regarding federal preemption of a state statute because preemption is an issue of federal law.”). 27 1 to matters within the opposing party’s knowledge”. Moore v. Kayport Package Express, 2 Inc., 885 F. 2d 531, 540 (9th Cir. 1989). Such an exception exists where “the plaintiffs 3 cannot be expected to have personal knowledge of the facts constituting the 4 wrongdoing.” Zatkin v. Primuth, 551 F.Supp. 39, 42 (S.D.Cal.1982). In such cases, the 5 particularity requirement may be satisfied if the allegations are accompanied by a 6 statement of the facts upon which the belief is founded. Id. In this case, Plaintiffs’ 7 allegations fail to state the facts that support their belief that Defendant used the domain 8 of a third-party without permission, and, thus, fail to satisfy even the relaxed standard 9 that the Ninth Circuit recognized in Moore. 10 With respect to preemption, in making its argument, Defendant relies on 11 Silverstein. Silverstein involved commercial emails sent by nonexistent or “spoofed” 12 identities from the linkedin.com domain, which were not authorized or sent by LinkedIn 13 itself. Silverstein v. Keynetics Inc., 192 F. Supp. 3d 1045, 1046 (N.D. Cal. 14 2016), aff'd, 727 F. App'x 244 (9th Cir. 2018). The court held that the use of the domain 15 names “do not falsely or deceptively misrepresent the domain from which the emails 16 actually traveled.” Id. at 1050-51. As affirmed by the Ninth Circuit, “Silverstein at most 17 has alleged that other LinkedIn users violated the terms of LinkedIn's user agreement by 18 using the LinkedIn domain to contact him and other group members with unauthorized 19 spam or advertising. However, the senders’ conduct does not make use of the LinkedIn 20 domain name materially false or misleading because the e-mails did come from a 21 LinkedIn member.” Silverstein v. Keynetics, Inc., 727 F. App'x 244, 246 (9th Cir. 2018). 22 Thus, Defendant argues that this claim is preempted because it relies on a technical 23 allegation about the identity of the sender rather than a material deception. Mot. at 15. 24 In response, Plaintiffs attempt to distinguish Silverstein. Specifically, where the 25 plaintiff in Silverstein had admitted that all emails were sent from the identifiable 26 linkedin.com, Plaintiffs argue that they do not make a similar concession. Plaintiffs do 27 1 not concede that the emails at issue were sent from the identified third-party domains. 2 Opp. at 7-8. 3 However, despite not making that concession, Plaintiff’s argument is unavailing 4 because Plaintiffs have failed to allege that any use of third-party domains was materially 5 deceptive. The fact that the Silverstein plaintiff admitted that the email was from 6 linkedin.com was important in that case because LinkedIn has a well-known reputation 7 and identifiable brand that could potentially be misappropriated. Silverstein., 192 F. 8 Supp. 3d at 1050. By admitting that the emails were sent from linkedin.com, the plaintiff 9 eliminated the argument that the defendant was only “appearing” to be LinkedIn and 10 taking advantage of the company’s goodwill to deceive those who received the email. See 11 id. (“Plaintiff also does not allege that the headers were deceptive because the 12 emails appeared to come from the linkedin.com domain, for, as Plaintiff concedes, all of 13 the emails did come from the linkedin.com domain.”). Thus, the conclusion in Silverstein 14 did not depend on the plaintiff’s concession. It turned on whether the use of the domain 15 itself was materially false or misleading. 16 Here, the FAC alleges that the use of third-party domain names concealed 17 Defendant’s identity, gave the false impression that the message originated from an 18 independent entity, and paired the Defendant’s brand name with a wholly unrelated 19 domain. FAC ¶ 19. Within these allegations, Plaintiff’s refusal to concede does not create 20 the same effect as Silverstein. Plaintiffs have not alleged that the third-party domains 21 used in this case (e.g., “kpyjas.cl,” “b1d.burgundyteapot.com,” “martingifts.com,” and 22 “financial-wellness-tips.com”) have a similar brand goodwill that was misappropriated. 23 Instead, by not conceding, Plaintiffs have merely maintained the allegation that the use of 24 the domain names was without the permission of the third parties. While Defendant 25 allegedly used a third-party domain without permission and masked its identity in the 26 process, that alone does not establish that the use of the domains was materially false or 27 1 misleading to the parties receiving the emails. It, instead, indicates a technical violation 2 that does not overcome the preemption bar. 3 Without more, the simple use of a third-party domain alone does not rise to the 4 level of “traditionally tortious or wrongful conduct.” Gordon, 575 F.3d at 5 1062 (quoting Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348, 354 6 (4th Cir. 2006)); Silverstein, 727 F. App'x at 246. Thus, this claim is preempted by the 7 CAN-SPAM Act. 8 ii. Section 17529.5(a)(2): Headers 9 Section 17529.5(a)(2) is violated when “[t]he e-mail advertisement contains or is 10 accompanied by falsified, misrepresented, or forged header information.” Cal. Bus. & 11 Prof. Code § 17529.5(a)(2). Header information constitutes “the source, destination, and 12 routing information attached to an electronic mail message, including the originating 13 domain name and originating electronic mail address, and any other information that 14 appears in the line identifying, or purporting to identify, a person initiating the message.” 15 15 U.S.C. § 7702(8).3 16 In this instant case, the FAC alleges that the header information from Defendant’s 17 advertising emails is “misrepresented because it does not accurately or truthfully identify 18 the person or entity who initiated and benefited from the email.” FAC ¶ 19. However, 19 Defendant argues that this theory of recovery is preempted by the CAN-SPAM Act 20
21 22 3 This definition is from the federal CAN-SPAM Act. The California statutes do not define “header information” in the context of Section 17529.5(a)(2). However, a similar 23 definition to the CAN-SPAM Act was proposed, but not adopted, for Section 24 17529.5(a)(2). Kleffman v. Vonage Holdings Corp., 49 Cal. 4th 334, 340 n.5 (2010); see Cal. Sen. Bill No. 12 (2003–2004 Reg. Sess.) § 1, as amended June 26, 2003 (“‘Header 25 information’ means the source, destination, and routing information attached to an 26 electronic mail message, including the originating domain name and originating electronic mail address”). 27 1 because (1) Plaintiffs do not allege they were actually deceived and (2) the allegations 2 amount to “technical allegations” with no basis in traditional tort theories. Mot. at 18. 3 Defendant’s first argument is unpersuasive. “[R]eliance and damages [under 4 Section 17529] need not be demonstrated to save a lawsuit from preemption.” Asis 5 Internet Servs. v. Member Source Media, LLC, No. 08-CV-1321 EMC, 2010 WL 6 1610066, at *3 (N.D. Cal. Apr. 20, 2010); see Hoang v. Reunion.com, Inc., No. 08-CV- 7 3518 MMC, 2010 WL 1340535, at *6 (N.D. Cal. Mar. 31, 2010) (“Accordingly, the 8 Court finds plaintiffs' failure to allege they relied to their detrimental on the alleged false 9 statements in defendant's e-mails does not constitute a ground for dismissal of their 10 claims.”). 11 However, Defendant’s second argument as to technical violations finds support in 12 Gordon. Here, Plaintiffs have alleged that the domains of these emails do not facially 13 identify Defendant, are not registered to Defendant, and do not identify Defendant with a 14 WHOIS search. FAC ¶¶ 12, 19. 15 In Gordon, the Ninth Circuit found “nothing inherently deceptive in [the 16 defendant’s] use of fanciful domain names.” Gordon, 575 F.3d at 1063. The domains 17 were properly registered to the defendant, and a WHOIS search accurately identified the 18 defendant as the domain registrant. Id. at 1064. Thus, there was no showing that the 19 defendant’s practice was “aimed at misleading recipients as to the identity of the sender.” 20 Id. Instead, the plaintiff’s claim, at best, offered incomplete or less than comprehensive 21 information about the sender. Id. 22 While the domains are not properly registered under Defendant unlike in Gordon 23 and the “From” names do not expressly identify Defendant, “it is difficult to see how 24 Plaintiffs could allege deception given that, as in Silverstein, the combination of the 25 sender name and the subject line make apparent to any reasonable person the exact nature 26 of the email.” Andrews v. Conversion Squared Corp., No. 20-CV-00247-JLS-JDE, 2020 27 1 WL 3978063, at *2 (C.D. Cal. May 8, 2020); see Silverstein v. Keynetics Inc., No. 16- 2 CV-00684-DMR, 2016 WL 7475616, at *4 (N.D. Cal. Dec. 29, 2016), aff'd, 727 F. App'x 3 244 (9th Cir. 2018). The header information of Defendant’s marketing emails would only 4 indicate that the sender was an unknown person, while the subject line makes clear that 5 the email is an advertisement. Plaintiffs do not clarify how the header information within 6 that context could plausibly deceive a reasonable person. For example, “[t]his is not a 7 situation where, e.g., the recipient receives an e-mail indicating the sender was an actual 8 person known to the recipient, but, in fact, was sent by an advertiser.” Asis, 2010 WL 9 1610066, at *4 (citing Hoang, 2010 WL 1340535, at *6). Thus, rather than alleging 10 material deception, Plaintiff alleges a variety of forms of missing information, which 11 would not escape preemption under the CAN-SPAM Act. Andrews, 2020 WL 3978063, 12 at *2. 13 Plaintiffs, however, maintain that this Court should adopt the persuasive holdings 14 of Balsam v. Trancos, Inc., 203 Cal.App.4th 1083 (2012). Opp. at 10-12. In Balsam, the 15 defendant used domain names that did not represent a real company and could not be 16 readily traced back to the defendant. Id. at 1096. Additionally, “[i]t was undisputed [the 17 defendant] intentionally used only privately registered, meaningless domain names in 18 order to prevent e-mail recipients from being able to identify it as the sender, or to 19 contact it except by sending a blind reply e-mail to an address the sender would have no 20 way of linking to [the defendant].” Id. Based on that, the court held that “header 21 information in a commercial e-mail is falsified or misrepresented for purposes of section 22 17529.5(a)(2) when it uses a sender domain name that neither identifies the actual sender 23 on its face nor is readily traceable to the sender using a publicly available online database 24 such as WHOIS.” Id. 25 Plaintiffs contend that the facts in this case are comparable to Balsam. The domain 26 names are privately registered, do not identify the actual sender, and are not identified in 27 1 a WHOIS search. Opp. at 11. Because the domain names were not traceable, Plaintiffs 2 argue that the domains were designed to prevent recipients from identifying the emails’ 3 true senders and are, thus, a material deception. Id. 4 However, beyond the conflict this interpretation creates with Gordon, this reading 5 of Balsam ignores distinguishable facts. Balsam based its ruling on the lack of total 6 traceability between the domain names and the defendant. Specifically, “[b]ecause [the 7 defendant] hides its identity behind an impenetrable shield of made-up names, an 8 aggrieved recipient cannot look up public information about [its] business, cannot find its 9 Web site, cannot call and speak to [its employees], cannot write to [its CEO], cannot 10 report [defendant] to the Better Business Bureau or the Attorney General, and cannot 11 warn others about [defendant] by writing a letter to a newspaper or posting a complaint 12 on the Internet.” Id. at 1099. When making these findings, the court 13 explicitly “express[ed] no judgment about other circumstances in which...the presence of 14 other information identifying the sender in the body of the e-mail could affect liability 15 under the statute.” Id. at 1101 n. 17. The California Court of Appeal later distilled this 16 reflection by holding in Rosolowski v. Guthy–Renker LLC, 230 Cal.App.4th 1403, 1407 17 (2014) that “a header line does not misrepresent the identity of the sender merely because 18 it does not identify the official name of the entity which sent the e-mail, or merely 19 because it does not identify an entity whose domain name is traceable from an online 20 database, provided the sender's identity is readily ascertainable from the body of the e- 21 mail.” 22 In contrast, the From Name, in this instant case, that accompanied at least one of 23 the emails identified “Endurance_Auto.” Mot. at 8. Additionally, in every email, the body 24 of the email identifies Defendant. Plaintiffs cannot go as far as Balsam and argue that 25 Defendant was totally untraceable within the full context of the email. Thus, even using 26 Balsam, this argument fails. 27 1 Accordingly, this claim is preempted by the CAN-SPAM Act. 2 b. Failure to State a Claim: Section 17529.5(a)(3) 3 Section 17529.5(a)(3) is violated when “[t]he e-mail advertisement has a subject 4 line that a person knows would be likely to mislead a recipient, acting reasonably under 5 the circumstances, about a material fact regarding the contents or subject matter of the 6 message.” Cal. Bus. & Prof. Code § 17529.5(a)(3). Thus, § 17529.5(a)(3) turns on 7 “whether the subject line might in fact lead a reasonable person to expect something 8 materially different than the message's actual content or subject matter.” Asis Internet 9 Servs. v. Subscriberbase Inc., No. 09-CV-3503-SC, 2010 WL 1267763, at *5 (N.D. Cal. 10 Apr. 1, 2010); Chin v. Evergreen Freedom Found., 764 F. Supp. 3d 924, 933 (C.D. Cal. 11 2025) (“Based on the facts presented in that case, Rosolowski does not stand for the 12 proposition that the body of the email can cure anything misleading in the subject line. 13 Rather, the issue in that case was whether the subject line accurately conveyed the body 14 of the email.”). In determining whether the subject lines were materially misrepresented, 15 the message’s content or subject matter includes consideration of “the body of an email 16 or a hyperlinked page.” Subscriberbase, 2010 WL 1267763, at *5. 17 Whether a reasonable consumer is likely to be deceived by a defendant’s subject 18 lines is “clearly a question of fact, which is best left for a jury, unless ‘[n]o reasonable 19 trier of fact could conclude otherwise.’” Id. at *2 (quoting Colgan v. Leatherman Tool 20 Group, Inc., 135 Cal.App.4th 663, 682 (2006)). Accordingly, at the motion to dismiss 21 stage, a defendant has “the relatively heavy burden of persuading this Court that no 22 reasonable fact finder could conclude that the email subject lines were ‘likely to mislead 23 a recipient, acting reasonably under the circumstances, about a material fact regarding the 24 contents or subject matter of the message.’” Id. at *3 (quoting Cal. Bus. & Prof. Code § 25 17529.5(a)(3)). 26 27 1 Defendant argues that Plaintiffs do not sufficiently allege that the subject lines of 2 Defendant’s advertising emails are materially misleading as to the message’s content or 3 subject matter, especially given example emails are not included in the FAC. Mot. 19-23; 4 ECF No. 13 (“Rep.”) at 9. In response, Plaintiffs contend that Defendant’s interpretation 5 of the statute is too narrow and excludes the meaning of “subject matter,” and that 6 whether reasonable consumers might be misled is a triable issue of fact. Opp. at 16-23. 7 Here, each of the four subject lines advertises a special discount. Specifically, the 8 subject lines include: 9 • “Congrats! REBEKA.JOHANNA23 – You’re Eligible For Discounted Pricing!” 10 • “Endurａnce Ｐrｏｍｏ – $300 ｏff ａny nｅw plan” 11 • “Your Endurance Auto Protection Offer – $300 off any new policy” 12 • “Dear MR. PURSCELLEY, You’re eligible for discounted pricing ��������������” 13 FAC ¶ 19. Additionally, in the Plaintiffs’ original complaint,4 one of the emails was 14 supplied and stated: “Protect Your Car and Your Wallet: Save $300 on a Vehicle 15 Protection Plan! Sign up for a comprehensive vehicle protection plan and get $300 off 16 any policy.” ECF No. 1 at 2. From this, the FAC alleges that the subject lines were 17 misleading because they falsely suggest a reduced price based on individualized criteria 18 when no discount exists. See FAC ¶¶ 13, 19. 19 20 21 4 A court may take judicial notice of “matters of public record,” including its own 22 records. See Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir. 2001). Because Plaintiffs “swore to [the original complaint’s] veracity” and “does not challenge the 23 [email’s] authenticity,” and “because any subsequent complaint must only allege facts 24 consistent with prior pleadings,” the court will take judicial notice of the original complaint. Wong v. Flynn-Kerper, No. 18-cv-04468-SJO-AFM, 2019 WL 4187375, at *4 25 & n.2 (C.D. Cal. May 16, 2019) (taking judicial notice of an attachment to plaintiff's 26 prior amended complaint); see also Nevada Fleet LLC v. FedEx Corp., No. 17-CV- 01732-DAD-KJN, 2024 WL 199626, at *9 n.7 (E.D. Cal. Jan. 18, 2024). 27 1 While the subject lines and the body of the email cover the same potential 2 || discount, a fact finder may consider “a hyperlinked page [within the email] in 3 || determining whether misrepresentations in the subject lines were actually material” under 4 || Section 17529.5(a)(3). Subscriberbase, 2010 WL 1267763, at *5. Given the advertised 5 || discount was allegedly not in existence once Plaintiffs’ clicked the email’s hyperlink, the 6 || Court finds that Plaintiffs have plausibly alleged that the emails contained subject lines 7 || likely to mislead a recipient. Accordingly, the Court DENIES the motion to dismiss as to 8 || this claim. 9 || II. Motion to Strike 10 Defendant argues that the Court should “strike out all of Plaintiffs’ theories, or 11 arguments within a theory, that the Court agrees lack merit.” As the Court has granted in 12 || part and denied in part the motion to dismiss, the Court DENIES the Defendant’s motion 13 || to strike. 14 CONCLUSION 15 For the foregoing reasons, the Court GRANTS in part and DENIES in part the 16 || Defendant’s motion to dismiss the complaint with leave to amend. The Court also 17 || DENIES Defendant’s motion to strike. Plaintiff shall file an amended complaint within 18 days of the Court’s Order. 19 IT IS SO ORDERED. 20 Dated: April 23, 2026 2 << 21 Hon. athe Cee 22 United States District Judge 23 24 25 26 27 17 28 3:25-cv-02694-GPC-KSC