8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
11 CHARMAINE TATE, individually and 2:24-cv-01327-DJC-CSK on behalf of all others similarly 12 situated,
13 Plaintiff, v. ORDER 14 VITAS HEALTHCARE CORPORATION, 15 Defendant. 16
17 A woman called a healthcare provider to discuss sensitive details about the
18 provider’s hospice care for the woman’s grandmother. Unknown to the woman
19 calling, the healthcare provider utilized a software to listen to the contents of the call
20 and produce data about the call’s purpose and resolution. Via its Terms of Service,
21 the software creator reserved the rights to employ the data yielded from those calls
22 for its own busine ss and product development functions. Does the woman have a 23 viable claim that the use of that software by the healthcare provider and the software 24 developer violated California privacy laws? 25 In weighing this question, the Court must determine whether the software 26 developer is a third party separate from the healthcare provider, or an extension of 27 the healthcare provider itself. The Court joins a number of district courts in holding 28 1 that the developer of software used to record and analyze phone calls is a third party
2 when the developer is able to utilize data obtained for its own purposes, separate
3 from the interests of the parties to the call. The Court finds that the software
4 developer in this case is capable of using the data for its own purposes, and because
5 the use of its software was not disclosed to the caller, it may be in violation of
6 California privacy laws. Additionally, because the healthcare provider aided the
7 software developer in obtaining access to the client calls, it may also be held liable.
8 Accordingly, Defendant’s Motion to Dismiss (ECF No. 12) is DENIED.
9 BACKGROUND
10 Defendant VITAS Healthcare Corporation operates hospice and palliative care
11 locations throughout California. (ECF No. 10; “FAC” ¶ 9.) It utilizes a conversation
12 intelligence software-as-a-service (“SaaS”) provided by Invoca, Inc. (“Invoca”) to help
13 analyze the more than 90,000 annual calls it receives to its call centers. (Id. ¶¶ 1, 36.)
14 When a person calls VITAS, Invoca’s software records and creates a transcript of the
15 caller’s speech. (Id. ¶ 20.) Invoca feeds that transcript to an artificial intelligence (AI)
16 program that identifies patterns and classifies the data into a searchable database,
17 which is then sent to VITAS. (Id.) This database is used by VITAS to understand what
18 questions and concerns its callers have, so that VITAS can adjust the content it delivers
19 to consumers and the call scripts utilized by its representatives. (Id. ¶ 37.) Under its
20 Terms of Service, Invoca can also use data obtained for other limited purposes,
21 including “to optimize and improve Services or otherwise operate Invoca’s business.”
22 (Id. ¶¶ 33, 34.) Neither VITAS nor Invoca obtain the consent of any caller to VITAS’s
23 call center, and callers are unaware that their speech is being recorded and analyzed.
24 (Id. ¶¶ 6, 40.)
25 In late 2023, Plaintiff Charmaine Tate called Defendant VITAS and spoke with a 26 VITAS representative regarding hospice care for Tate’s grandmother. (Id. ¶¶ 8, 42.) 27 Tate alleges that the use of Invoca’s software to record and analyze her and others’ 28 calls to VITAS violates the California Invasion of Privacy Act (“CIPA”) sections 631(a) 1 (unauthorized wiretapping) and 632(a) (unauthorized eavesdropping on or recording
2 of confidential communications), and that VITAS is liable for aiding those violations.
3 (Id. ¶ 41; see Cal. Pen. Code1 §§ 631(a), 632(a).) On February 28, 2024, Tate brought
4 this action in the Sacramento Superior Court on behalf of herself and members of a
5 proposed class, and it was removed to federal court on May 9, 2024. The proposed
6 class for which Tate seeks certification would consist of all California residents who
7 called VITAS’s customer service line while in California and whose conversations with
8 VITAS were intercepted and recorded by Invoca. (Id. ¶ 49.)
9 LEGAL STANDARD
10 A party may move to dismiss for “failure to state a claim upon which relief can
11 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint
12 lacks a “cognizable legal theory or sufficient facts to support a cognizable legal
13 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
14 While the Court assumes all factual allegations are true and construes “them in the
15 light most favorable to the nonmoving party,” Parks Sch. of Bus., Inc. v. Symington, 51
16 F.3d 1480, 1484 (9th Cir. 1995), if the complaint's allegations do not “plausibly give
17 rise to an entitlement to relief” the motion must be granted, Ashcroft v. Iqbal, 556 U.S.
18 662, 679 (2009) (“Iqbal”).
19 A complaint need contain only a “short and plain statement of the claim
20 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed
21 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However,
22 this rule demands more than unadorned accusations; “sufficient factual matter” must
23 make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory
24 or formulaic recitations of elements do not alone suffice. Id. “A claim has facial
25 plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 27
28 1 All undesignated statutory references are to the California Penal Code unless otherwise specified. 1 evaluation of plausibility is a context-specific task drawing on “judicial experience and
2 common sense.” Id. at 679.
3 DISCUSSION
4 CIPA provides parties to a phone call legal protection from unauthorized, third-
5 party listeners eavesdropping or recording the contents of those calls. Section 631(a)
6 outlines repercussions for any person:
7 (1) “[W]ho, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether 8 physically, electrically, acoustically, inductively, or otherwise, with any
9 telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, 10 or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the 11 contents or meaning of any message, report, or communication while the
12 same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state;” or 13 (2) “[W]ho uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees 14 with, employs, or conspires with any person or persons to unlawfully do, or
15 permit, or cause to be done any of the acts or things mentioned above in this section.” 16
17 Section 632(a) prohibits a person from:
18 “[I]ntentionally and without the consent of all parties to a confidential 19 communication, us[ing] an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the
20 communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.” 21
22 There are three questions the Court must consider in weighing VITAS’s Motion
23 to Dismiss (hereinafter, “Mot.”). First, the Court must determine the standard to apply
24 to Invoca’s access to VITAS’s caller data, specifically whether Tate must allege that
25 Invoca actually used the data for its own purposes, or merely that Invoca was capable 26 of doing so. Second, the Court must decide whether Invoca’s software is considered a 27 “device” under section 632(a). Finally, the Court must assess whether a common law 28 1 aiding and abetting standard should be read into section 631(a). At present, there is
2 no Ninth Circuit precedent on these questions and district courts in this Circuit have
3 reached different results. The Court discusses each issue in turn.
4 I. Whether Invoca must actually use the data it obtains for its own purposes
5 Section 631(a) prohibits third parties from “read[ing], or attempt[ing] to read, or
6 to learn the contents or meaning of any message, report, or communication” “without
7 the consent of all parties to the communication.” § 631(a). Plaintiff alleges that
8 Invoca, via its software, learns the contents of calls to VITAS without the consent of the
9 caller, therefore violating section 631(a) as an unauthorized, third-party listener. (FAC
10 ¶ 7.) Defendant counters that because Invoca provides its data solely to VITAS, it is
11 not a third party but rather an extension of VITAS itself, and therefore the use of
12 Invoca’s software cannot violate section 631(a). (Mot. at 3–6.)
13 There are two seminal California cases that frame how courts consider third
14 parties under CIPA: Rogers v. Ulrich, 52 Cal. App. 3d 894 (1975) and Ribas v. Clark, 38
15 Cal. 3d 355 (1985). In Rogers, Ulrich used a tape recorder attached to his telephone
16 to record his phone call with Rogers, and then later played that recording for a third
17 party who was not involved in the call. Id. at 897–98. The California Court of Appeal
18 held that Ulrich’s use of a tape-recording device did not violate section 631(a)’s
19 restriction on eavesdropping because Ulrich himself was a party to the call, noting that
20 “only a third party can listen secretly to a private conversation.” Id. at 899; see Ribas,
21 38 Cal. 3d at 360, fn.3 (“Rogers merely held, correctly, that section 631 does not
22 penalize the secret recording of a conversation by one of the participants.”). In other
23 words, Ulrich’s recording device was seen as a permissible extension of Ulrich himself.
24 By contrast, in Ribas, a woman called her husband and had Clark, a third party,
25 listen in live on her phone call as the husband allegedly confessed that he had 26 prevented his wife from obtaining counsel during the dissolution proceedings of their 27 marriage. 38 Cal. 3d at 358–59. The California Supreme Court held that Clark’s secret 28 monitoring was prohibited under section 631(a), noting that this kind of privacy 1 violation committed by a third party to the call “denies the speaker an important
2 aspect of privacy of communication,” and that the state legislature had sought to curb
3 these sorts of privacy violations. Id. at 361.
4 The Court is tasked with determining whether Invoca’s software is more similar
5 to the permissible tape recorder used in Rogers, or the impermissible third-party
6 listener in Ribas. That is to say, does the software function as a recording made by a
7 party to the call, or is it a separate party entirely? Further, there is a split amongst
8 district courts as to whether a third-party entity must actually use the data it obtains for
9 its own purposes or if it merely needs to have the capability to do so to act as a third
10 party in violation of section 631(a).
11 On one side of this split is Graham v. Noom, Inc., 533 F. Supp. 3d 823 (N.D. Cal.
12 2021). See also Yockey v. Salesforce, Inc., 688 F. Supp. 3d 962 (N.D. Cal. 2023).
13 Graham involved a web application called Noom, which utilized a software designed
14 by FullStory to record what actions visitors took on Noom’s website, including visitors’
15 keystrokes, mouse clicks, and page scrolling. Id. at 827. A visitor to Noom’s website
16 sued, alleging that the software’s collection of user interactions with the application
17 constituted privacy violations under section 631(a). Id. at 828–29. The Graham court
18 held that neither company violated section 631(a), reasoning that FullStory merely
19 captured the user data and hosted that data on its own servers where Noom could
20 then use the data by analyzing it. Id. at 832–33. The court distinguished the case from
21 similar ones in which the software developer had actually received some sort of
22 benefit from collecting user data itself, such as when those software developers
23 themselves separately sold the user data. Id.; see Revitch v. New Moosejaw, LLC, 2019
24 WL 5485330 (N.D. Cal. Oct. 23, 2019). Noting these differences, the court saw
25 FullStory’s software as an extension of Noom itself because Noom was the party that 26 was responsible for assessing the data received, with the software solely working to 27 collect that data for Noom, and Noom alone. Graham, 533 F. Supp. 3d at 832–33. 28 1 On the other side of this split is Javier v. Assurance IQ, LLC, 649 F. Supp. 3d 891
2 (N.D. Cal. 2023). Javier involved Assurance IQ, LLC’s use of a software developed by
3 ActiveProspect Inc., which tracked website visitors’ keystrokes, mouse clicks, data
4 entry, and other interactions. Id. at 894. In weighing the plaintiff’s section 631(a)
5 claim, the Javier court critiqued Graham’s reasoning that a third-party software
6 developed would need to use the data for its own purposes in order for it to violate
7 section 631(a). Id. at 900. The Javier court noted that there is already a use
8 requirement in one of section 631(a)’s discrete clauses (“us[ing], or attempt[ing] to
9 use, in any manner, or for any purpose, or to communicate in any way, any information
10 so obtained”), and therefore it would be improper to impute that use requirement to
11 all of section 631(a). Id. The court in that case also noted that in Ribas, the California
12 Supreme Court never considered the wife’s friend’s intentions or her use for the
13 information obtained, and so to consider a third party’s intent in obtaining data here
14 would similarly be improper. Id.; Ribas, 38 Cal. 3d at 360–61.
15 The Court finds Javier’s reasoning to be more persuasive. Section 631(a)’s text,
16 which prohibits a third party from “learn[ing] the contents or meaning of any
17 message,” does not actually contain a use requirement. See id. at 899–900; § 631(a).
18 But in a separate section, separated by a semicolon, the statute then prohibits a party
19 from “us[ing], or attempt[ing] to use” any obtained information. § 631(a). The statute
20 outlines several ways for its restriction to apply and does not limit its application solely
21 to parties that directly use the data they obtain from listening in on a call. In other
22 words, an entity can violate the statute by learning the contents of the message or by
23 using information obtained from listening in on a conversation. Similar to the
24 California Supreme Court and Javier court, this Court finds it unnecessary to consider
25 a third party’s intention to collect or use data from a call. See Ribas, 38 Cal. 3d at 360– 26 61. Obtaining that data while reserving the capability to utilize it makes a third party 27 distinct from one of the parties to the call and may trigger a violation of section 631(a). 28 1 This reading of the statute’s plain text is also in line with what the California
2 Supreme Court has made clear: that the state legislature’s “express objective in
3 enacting section 631” was to protect callers from having an outsider “tap [their]
4 telephone or listen in on the call.” Ribas, 38 Cal. 3d at 363. Because Invoca’s software
5 effectively “listen[s] in” on user calls, independently analyzes that data, and the
6 company reserves the capability to then use that data for its own purposes, Invoca’s
7 software may be in violation of 631(a).
8 Moreover, while the Court does not find Graham persuasive, even Graham itself
9 does not help Defendant here. While Graham likewise involved claims of improper
10 collection of data rather than use of that data, critically in Graham the plaintiffs did not
11 allege that FullStory collected the data and could use it for its own purposes. Rather,
12 they attacked FullStory’s storage of user information on its servers, framing that
13 storage itself as a violation of section 631(a). Id. at 828, 832–33. The district court
14 rejected the plaintiff’s argument, noting that “there are no allegations here that
15 FullStory intercepted and used the data itself,” and highlighted that FullStory’s
16 software simply recorded data that was then analyzed by Noom, rather than FullStory.
17 Id. at 832–33. But here, Plaintiff does allege that Invoca has the capability to analyze
18 the data itself and further, that Invoca expressly reserves the ability to use that data for
19 its own purposes. (FAC ¶¶ 30–35.)
20 Defendant’s reliance on Yockey v. Salesforce, Inc., 688 F. Supp. 3d 962 (N.D.
21 Cal. 2023) to argue that an alleged third party that merely records data for a
22 legitimate party to a call does not violate section 631(a) is similarly unavailing. (See
23 Mot. at 4–5.) Yockey involved Rite Aid and Kaiser Permanente’s utilization of a
24 software developed by Salesforce to create transcripts of online chat messages sent
25 on the companies’ website. Yockey, 688 F. Supp. 3d at 967–68. Interestingly, and to 26 Defendant’s detriment, that case specifically recognized that the inquiry into whether 27 a third-party acts as an extension of a part to the call hinges on “whether the third 28 party ‘ha[s] the capability to use its record of the interaction for any other purpose.’” 1 See id. at 972, quoting Javier, 649 F. Supp. 3d at 900. The plaintiffs in that case did
2 not sufficiently allege that the third party could use any data obtained for its own
3 purpose—they were not able to point to evidence beyond the third party’s possession
4 of user data to substantiate their claim. Id. at 972–73. But here, as discussed next,
5 Plaintiff does properly allege that Invoca has that capability, namely Invoca’s express
6 reservation of that ability in its Terms of Service. VITAS’ own case citations support the
7 argument that Invoca’s ability to use the data it collects for its own purposes is itself
8 sufficient to establish a violation of section 631(a).
9 VITAS maintains that Invoca’s collection of data is solely for the use of VITAS
10 and that Invoca cannot use the data for any other purposes. (Mot. at 4–6.) VITAS
11 points to a “Business Association Agreement,” which it states precludes Invoca from
12 utilizing any data obtained for its own purposes. (Id. at 6, fn.3.) VITAS does not attach
13 a copy of this Agreement as an exhibit nor does it explicitly describe its contents; and
14 in any event the Court is precluded from relying on such factual assertions in resolving
15 a motion to dismiss under Rule 12(b)(6). See Arpin v. Santa Clara Valley Transp.
16 Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[E]vidence outside the complaint . . .
17 should not be considered in ruling on a motion to dismiss.”). Regardless of any
18 Business Association Agreement, Invoca’s Terms of Service expressly reserve the
19 ability to use “Client Data, as reasonably necessary for Invoca to provide and enhance
20 its provision of services.” (FAC ¶ 33.) Under these Terms of Service, Invoca may use
21 the data obtained from calls placed to VITAS to improve its own product and services.
22 Invoca’s software has already allegedly violated the caller’s privacy; whether Invoca
23 actually uses the contents of the call for its own purposes is not legally relevant. See
24 Javier, 649 F. Supp. 3d at 900.
25 Accordingly, the Court finds that Invoca, via its software, is a third party, distinct 26 from both Plaintiff Tate and Defendant VITAS, and that Invoca’s ability to use the data 27 obtained for its own purposes may be sufficient to trigger section 631(a) liability. 28 //// 1 II. Whether Invoca’s software is an “electronic amplyfying or recording
2 device”
3 Finding that Invoca is a third party, the Court must then determine whether it is
4 a recording device under section 632(a). As relevant here, section 632(a) prohibits
5 third parties from using a “recording device to eavesdrop upon or record the
6 confidential communication” of a call, but does not provide a definition of “device.”
7 § 632(a). Defendant VITAS asserts that Invoca’s software is not a “device” under CIPA.
8 (Mot. at 7–8.) District courts have defined “device” differently depending on which
9 section of CIPA a claim arises under. For example, in In re Google Location History
10 Litigation, 428 F. Supp. 3d 185, 193 (N.D. Cal. 2019) (“Google Litigation”), the court
11 analyzed a software under a different section of CIPA—section 637.7(d)—and found that
12 “[s]oftware like Google Maps, Chrome, etc. are not ‘devices’ within the meaning of
13 CIPA because they are not ‘equipment.’“ But courts have also reached contrary
14 results. In Gladstone v. Amazon Web Servs., Inc., 2024 WL 3276490, *8 (W.D. Wash.
15 July 2, 2024), the court turned to the federal Wiretap Act for a definition of “device”
16 under CIPA and found “that ‘device,’ as used in section 632, can include software.”
17 After weighing these two approaches, the Court agrees with Gladstone that section
18 632(a)’s definition of “device” can include Invoca’s software.
19 Federal courts apply state rules of statutory construction when interpreting a
20 statute from that state. See In re Lares, 188 F.3d 1166, 1168 (9th Cir. 1999). The first
21 step in that inquiry is to “scrutinize the actual words of the statute, giving them a plain
22 and commonsense meaning.” Cal. Tchrs. Assn. v. Governing Bd. of Rialto Unified Sch.
23 Dist., 14 Cal. 4th 627, 633 (internal quotations omitted). If no ambiguity exists, the
24 plain language of the statute governs. People v. Snook, 16 Cal. 4th 1210, 1215 (1997)
25 (“Snook”). 26 Defendant VITAS urges the Court to look to Google Litigation, 428 F. Supp. 3d 27 185, and Moreno v. S.F. Bay Area Rapid Transit Dist., 2017 WL 6387764 (N.D. Cal. Dec. 28 14, 2017), both of which conclude that a software is not a device under CIPA. (Mot. at 1 8.) However, neither case is applicable because they both analyze “devices” under
2 section 637.7(d), rather than section 632(a). Google Litigation involved a tracking
3 software that collected and stored user data. 428 F. Supp. 3d at 187–88. A user sued
4 under section 637.7, alleging that the software improperly tracked and stored their
5 location, but the district court dismissed the claim, finding that downloaded software
6 is not a device within the meaning of section 637(d). Id. at 193–94. And in Moreno,
7 when faced with a similar set of facts, the court reached the same conclusion, positing
8 that software is not a “device” under section 637(d). 2017 WL 6387764 at *5.
9 But section 637.7(d)’s text explicitly restricts its definition of “electronic tracking
10 device” (emphasis added) to that specific section, rather than to other sections such as
11 632(a) which use the more generic phrase “electronic device”. See § 637.7(d) (“As
12 used in this section, ‘electronic tracking device’ means . . .”). And even if its definition
13 were used to inform other sections, section 637.7 is concerned with electronic
14 tracking devices that are clearly meant to be physical and thus is not a proper
15 consideration for defining “device” under section 632(a). Specifically, section 637.7(d)
16 defines an “electronic tracking device” as one that can be “attached to a vehicle or
17 other movable thing” which evinces the statute’s emphasis on proscribing physical
18 tracking devices. See § 637.7(d). Section 632(a), however, lacks any language
19 suggesting that an “electronic amplifying or recording device” must be physical in
20 nature. Relying on the more specific text of section 637.7(d) to inform section 632(a) is
21 misguided, given section 637.7(d)’s explicit focus on tangible devices.
22 Gladstone, which considers the definition of “device” under the federal Wiretap
23 Act, provides a more helpful framework for deducing what “device” means under
24 section 632(a). 2024 WL 3276490. Courts routinely look to federal law in interpreting
25 CIPA, which was modeled off the Wiretap Act. See Brodsky v. Apple Inc., 445 F. Supp. 26 3d 110, 127 (N.D. Cal. 2020) (“The analysis for a violation of CIPA is the same as that 27 under the federal Wiretap Act.”), quoting Cline v. Reetz-Laiolo, 329 F. Supp. 3d 1000, 28 1051 (N.D. Cal. 2018); see also 18 U.S.C. § 2510 et seq. In Gladstone, the district 1 court turned to the Wiretap Act to help determine whether a software developed by
2 Amazon that recorded and analyzed call information should be considered a device
3 under section 632(a). The Gladstone court considered two factors—first, that the
4 majority of federal courts nationwide applying the federal Wiretap Act have landed on
5 a definition of “device” that includes software. See United States v. Hutchins, 361 F.
6 Supp. 3d 779, 795 (E.D. Wis. 2019) (collecting cases); see also In re Carrier IQ, Inc., 78
7 F. Supp. 3d 1051, 1087 (“Software is an ‘[e]lectronic, mechanical, or other device’
8 which ‘can be used to intercept a wire, oral, or electronic communication.’”). Second,
9 the court considered the California Supreme Court’s instruction that “all CIPA
10 provisions are to be interpreted in light of the broad privacy-protecting statutory
11 purposes of CIPA.” Gladstone, 2024 WL 3276490 at * 8, quoting Javier v. Assurance
12 IQ, LLC, 2022 WL 1744107, *2 (9th Cir. May 31, 2022); see Ribas, 38 Cal. 3d 355.
13 These factors together support a reading that software can be a device under
14 section 632(a). Invoca’s software, while not a physical device, has the capability to
15 record confidential information made in calls and reproduce those calls and data
16 extracted from them for VITAS or Invoca. That is to say, even though it is not physical,
17 the software functionally operates in a way that is reasonably envisioned by the
18 statute. And like in Gladstone, the recording undertaken by the software infringes on
19 the very privacy right that the California Legislature sought to enshrine in CIPA. See
20 Ribas, 38 Cal. 3d at 359 (“In enacting this statute, the Legislature declared in broad
21 terms its intent ‘to protect the right of privacy of the people of this state’ from what it
22 perceived as ‘a serious threat to the free exercise of personal liberties [that] cannot be
23 tolerated in a free and civilized society.’ [Citation.] This philosophy appears to lie at
24 the heart of virtually all the decisions construing the Privacy Act.”)
25 Because the software can record conversations and in doing so, violates the 26 privacy of at least one of the callers, the Court finds that Invoca’s software can be 27 considered a “device” under section 632(a). 28 1 III. Whether VITAS can be held liable for aiding, agreeing with, employing, or
2 conspiring with Invoca
3 Under 631(a), an entity that “uses, or attempts to use, in any manner, or for any
4 purpose, or to communicate in any way, any information so obtained, or who aids,
5 agrees with, employs, or conspires with any person or persons to unlawfully do, or
6 permit, or cause to be done any of the acts or things mentioned above in this section”
7 may be held liable. § 631(a) (italics added). Defendant VITAS argues that it lacks the
8 requisite intent under an “aiding and abetting” standard because it did not know that
9 Invoca was allegedly violating section 631(a). (Mot. at 7.)
10 The plain text of section 631(a) is unambiguous on this issue: the statute
11 requires that a party “aids, agrees with, employs, or conspires” with another party.
12 § 631(a). It does not require that a party aid and abet. See Cousin v. Sharp
13 Healthcare, 681 F. Supp. 3d 1117, 1130 (S.D. Cal. 2023) (“Defendant's contention that
14 ‘aids’ means ‘aiding and abetting’ ignores the ‘agrees with, employs, or conspires with’
15 language of the clause.”). VITAS’s proposed “aiding and abetting” standard goes
16 beyond what the statute requires, and there is no basis to read in a common law
17 standard of aiding and abetting when the statute itself is clear. See Snook, 16 Cal. 4th
18 at 1215 (“If there is no ambiguity in the language, we presume the Legislature meant
19 what it said and the plain meaning of the statute governs.”). Instead, to establish a
20 violation a plaintiff need only prove that a party (VITAS) aided, agreed with, employed,
21 or conspired with a third party (Invoca) as it violated section 631(a). As discussed
22 above, Plaintiff Tate has pled facts that would support a viable claim that Invoca has
23 violated the statute. Plaintiff’s claims that VITAS has supported Invoca in doing so by
24 allowing Invoca access to the calls and has presumably paid Invoca to analyze the data
25 those calls yield are sufficient to implicate section 631(a). Accordingly, the Court finds 26 that VITAS may be found liable under section 631(a) for its role in assisting Invoca’s 27 monitoring and analysis of calls made to VITAS. 28 //// 1 CONCLUSION 2 In accordance with the above, IT |S HEREBY ORDERED that Defendant's Motion 3 | to Dismiss (ECF No. 12) is DENIED. 4 5 IT IS SO ORDERED. 6 | Dated: _January 8, 2025 “Daniel A CoD tto— Hon. Daniel alabretta / UNITED STATES DISTRICT JUDGE 8 9 10 | bdcs -tate24ev01327.MTD 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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