respondent footlocker brief

8/10/2019 Respondent Footlocker Brief

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No. A141847

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

TIMOTHY A. DeWITT,

Plaintiff and Appellant,

v.

FOOT LOCKER RETAIL, INC. and 1INK.COM,

Defendants and Respondents.

BRIEF OF RESPONDENT FOOT LOCKER

RETAIL, INC.

Appeal From Judgment Following Order SustainingDemurrer in the Superior Court for the

County of San FranciscoHonorable Ernest Goldsmith, Law & Motion Judge

Superior Court Case No. CGC-13-532370

*MICHAEL J. STORTZ (SBN 139386)

[email protected] J. ADLER (SBN 273147)[email protected] BIDDLE & REATH LLP50 Fremont Street, 20th FloorSan Francisco, California 94105-2235Telephone: (415) 591-7500Facsimile: (415) 591-7510

MATTHEW J. FEDOR (pro hac vice)

[email protected] BIDDLE & REATH LLP600 Campus DriveFlorham Park, New Jersey 07932-1047

Attorneys for RespondentFOOT LOCKER RETAIL, INC.


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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to Rule of Court 8.208, the undersigned hereby certifies on

behalf of Respondent Foot Locker Retail, Inc. that the following listed

entities have either (1) an ownership interest of 10 percent or more in the

party; or (2) a financial or other interest in the outcome of the proceeding

that the Justices should consider in determining whether to disqualify

themselves, as defined in Rule of Court 8.208(e)(2):

1. Foot Locker, Inc. (parent corporation of Foot Locker Retail, Inc.)

Dated: November 13, 2014 DRINKER BIDDLE &REATH LLP

By: /s/ Michael J. Stortz

Michael J. StortzMatthew J. FedorMatthew J. Adler



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TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................... 1

II. BACKGROUND ...................................................................................... 3

III. ARGUMENT .......................................................................................... 5

A. The Trial Court Properly Sustained FootLockers Demurrer. ................................................................. 5

1. An Order Sustaining A Demurrer IsReviewed De Novo. ..................................................... 5

2. Appellant Failed To Plead FactsSufficient To State A Cause of ActionUnder CASA As To The E-mailAttached To The FAC. ................................................. 6

a. Appellant Failed To State AClaim Under CASA Based OnThe Subject Line Of The E-mailAttached To The FAC. ...................................... 7

b. Appellant Failed To State AClaim Under CASA Based OnThe Header Information For TheE-mail Attached To The FAC. .......................... 9

3. Appellant Failed To Plead FactsSufficient To State A Cause of Action

Under CASA As To The 344-Plus OtherE-mails He Claims He Received. ............................... 15

a. CASA Claims Sound In FraudAnd Must Be Pled WithParticularity. .................................................... 16

b. Appellants CASA Claims As ToThe 344-Plus Other E-Mails FailTo Satisfy Basic PleadingRequirements. ................................................. 19

4. Appellant Failed To Plead Facts

Sufficient To State A Cause of ActionFor Negligence Or Declaratory Relief. ...................... 20

5. Appellant Failed To Plead FactsSufficient To Support The Joinder OfFoot Locker And 1INK.com In TheSame Action. .............................................................. 20


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TABLE OF CONTENTS

(Continued)

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B. The Trial Court Did Not Abuse Its Discretion InDenying Leave To Amend. ................................................... 26

1. A Denial Of Leave To Amend IsReviewed For Abuse Of Discretion. .......................... 26

2. Appellant Has Failed To Show AReasonable Possibility That The FACCan Be Cured By Further Amendment. ..................... 27

a. The Complaint................................................. 28

b. The First Amended Complaint. ....................... 28

c. Appellants Opposition To

Respondents Demurrers. ................................ 29

d. The Demurrer Hearing. ................................... 30

e. Appellants Opening Brief FailsTo Establish A Basis For FurtherAmendment, And He Should NotGet A Sixth Bite At The Apple. ...................... 32

3. Leave To Amend Would Be Futile. ........................... 35

IV. CONCLUSION ..................................................................................... 36


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TABLE OF AUTHORITIES

Page(s)

CASES

Anaya v. Superior Court (1984)160 Cal.App.3d 228 ................................................................... 23, 24, 25

Arei II Cases (2013) 216 Cal.App.4th 1004 ......................................... 26, 34

Asis Internet Services v. Member Source Media, LLC(N.D. Cal. Apr. 20, 2010) No. C-08-1321, 2010 WL1610066 .................................................................................................... 8

Asis Internet Services v. Subscriberbase Inc.

(N.D. Cal. Dec. 4, 2009) No. 09-3503, 2009 WL 4723338 ......... 7, 8, 16

Asis Internet Servs. v. Optin Global, Inc.

(N.D. Cal. June 30, 2006) No. C 05-5124 CW, 2006 WL 1820902 .... 16

Balsam v. Trancos(2012)203 Cal.App.4th 1083 .....................................................................passim

Dietz v. Meisenheimer & Herron(2009)177 Cal.App.4th 771 .................................................................. 22, 23, 32

Farmers Insurance Exchange v. Adams(1985)170 Cal.App.3d 712 ............................................................................... 24

Hamilton v. Greenwich Investors XXVI, LLC(2011)195 Cal.App.4th 1602 ............................................................................ 19

Hypertouch, Inc. v. Valueclick, Inc.(2011)192 Cal.App.4th 805 .............................................................................. 16

Hypertouch v. Azoogle.com, Inc.(9th Cir. 2010)386 Fed. Appx. 701 ................................................................................ 16

Kleffman v. Vonage Holdings Corp.(2010)49 Cal.4th 334 .................................................................................passim

Lazar v. Superior Court(1996)12 Cal.4th 631 ........................................................................................ 15


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Little v. Los Angeles County Assessment Appeals Bd.(2007)155 Cal.App.4th 915 .............................................................................. 15

Moe v. Anderson(2012)

207 Cal.App.4th 826 .............................................................................. 24

Moreland v. AD Optimizers, LLC(N.D. Cal. July 18, 2013)No. 5:13-CV-00216-PSG, 2013 WL 3815663 .......................... 16, 17, 18

Robinson Helicopter Co., Inc.v. Dana Corp. (2004)34 Cal.4th 979 .................................................................................. 15, 18

Rosen v. St. Joseph Hospital of Orange County(2011)193 Cal.App.4th 453 .................................................................. 26, 33, 34

Rosolowski v. Guthy-Renker LLC (Oct. 29, 2014, B250951)__ Cal.App.4th __ [2014 WL 5465008].............................................................................................. 12, 13, 14, 36

Scott v. JPMorgan Chase Bank, N.A.(2013)214 Cal.App.4th 743 .............................................................................. 13

Seymour v. State of California(1984)156 Cal.App.3d 200 ............................................................................... 33

Singh v. Lipworth(2014)

227 Cal.App.4th 813 .............................................................................. 27

State ex rel. McCann v. Bank of America, N.A.(2011)191 Cal.App.4th 897 .......................................................................passim

Thomas v. Stenberg(2012)206 Cal.App.4th 654 .............................................................................. 24

Titus v. Canyon Lake Property Owners Assn.(2004)118 Cal.App.4th 906 ........................................................................ 32, 35

Tucker v. Pacific Bell Mobile Services(2012)208 Cal.App.4th 201 ........................................................................ 27, 34

STATUTES,RULES &REGULATIONS

15 U.S.C. 7701, et seq.......................................................................... 5, 10

15 U.S.C. 7702(8) ....................................................................................... 6


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28 U.S.C. 1332 ......................................................................................... 25

Bus. & Prof. Code 17529.5 ...............................................................passim

Bus. & Prof. Code 17529.5(a)(2) ......................................................passim

Bus. & Prof. Code 17529.5(a)(3) ......................................................passim

Code Civ. Proc., 378................................................................................. 24

Code Civ. Proc., 379................................................................................. 24

Code Civ. Proc., 379(a)(1) ..................................................... 21, 22, 25, 29

Code Civ. Proc., 425.10(a)(1) .................................................................. 19

Code Civ. Proc., 430.10(d) ........................................................... 20, 23, 29

Code Civ. Proc., 430.10(e) ....................................................................... 29

OTHER AUTHORITIES

3 Witkin, Cal.Procedure (2d ed. 1971) ........................................................ 23


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I.

INTRODUCTION

Appellant Timothy DeWitt (Appellant) is a California attorney

and a professional plaintiff who appears to make his living by suing

companies under Californias Anti-Spam Act (CASA), Business and

Professions Code Section 17529.5.1 Here, Appellant alleges he received

hundreds of unsolicited commercial e-mails from Respondents Foot Locker

Retail, Inc. (Foot Locker) and 1INK.com, which he claims are false and

misleading in violation of CASA.

But as the trial court found below, Appellants First Amended

Complaint (FAC) fails to pleadfacts sufficient to state a cause of action

under CASA. See Appellants Appendix (AA), Item 5 (FAC); id.,Item 4

(Order sustaining demurrers to FAC without leave to amend). Indeed,

Appellant alleges no specifics whatsoever as to the hundreds of e-mails he

supposedly received, and the FAC lacks even the most basic information

regarding Appellants claims.

To be sure, Appellants original Complaint suffered from the same

defects.2 Both Foot Locker and 1INK.com filed demurrers to the original

Complaint because Appellant failed to provide sufficient factual details

regarding the allegedly unlawful e-mails.3 Rather than oppose the

1All further statutory references are to the Business and Professions

Code, unless otherwise specified.2

Appellant did not include his original Complaint in his Appendix.Accordingly, Foot Locker has provided this Court with a copy in itsRespondents Appendix (RA) filed concurrently with this brief. See RA2.

3Again, Appellant did not include in his Appendix either FootLockers or 1INK.coms respective demurrers to the original Complaint.The supporting memorandum for each demurrer is included in

(continued)


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demurrers, Appellant instead filed the FAC.

Appellants FAC made only one material change to the original

Complaint: it attached a single e-mail that Appellant claims he received

from Foot Locker. But it is obvious from the face of the e-mail that it does

not violate CASA. Indeed, the e-mail header is not false,

misrepresented, or forged in violation of Section 17529.5(a)(2) because

it clearly identifies the originating e-mail address

([email protected]), and identifies Foot Locker by name a total

of fivetimes in the header and an additional tentimes in the body. And the

subject lineKeep It Clean, Keep It Classy with Fresh White

Sneakersclearly is not likely to mislead a recipient, acting reasonably

under the circumstances, about a material fact regarding the contents or

subject matter of the message in violation of Section 17529.5(a)(3)

because the body of the e-mail advertises white sneakers. Accordingly, the

FAC, like its predecessor, fails to state a cause of action under CASA.

The trial court agreed, and it sustained Foot Lockers and

1INK.coms respective demurrers to the FAC. See AA, Item 4. The trial

court specifically found that the FAC does not plead facts sufficient to

establish a violation of [CASA]. Ibid. Moreover, the trial court (properly)

sustained the demurrers without leave to amend because Appellant never

demonstrated how he could amend the complaint to cure [the] defects.

Ibid.

On appeal, Appellant now argues: (1) that the allegations of the FAC

are sufficient, and that the demurrers should not have been sustained; and(2) even if the FACs allegations are notsufficient, he should have been

granted leave to amend. Appellant is wrong on both counts. As explained

(..continued)Respondents Appendix. See RA 16, 26.


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below, the trial court correctly held that Appellant failed to plead facts

sufficient to establish a CASA claim. And the trial court did not abuse its

discretion in denying leave to amend. Accordingly, the trial courts

decision should be affirmed in its entirety.

II.

BACKGROUND

This entire case is about e-mails. Appellant alleges that he received

approximately 345 to 355 unsolicited commercial e-mails that advertise

Foot Lockers Foot Locker or Champs commercial brand, products, or

services, which he claims violate CASA. AA, Item 5 (FAC) at 8.

Appellant also claims he received approximately 30 to 35 unsolicited

commercial e-mails from 1INK.com, advertising its commercial brand,

products, or services allegedly in violation of CASA. Id. 9.

Except for a single e-mail from Foot Locker that Appellant attached

to the FACwhich is discussed belowthe FAC lacks the most basic

details about the remaining hundreds of allegedly unlawful e-mails that

Appellant claims he received. For example, Appellant does not say when

any of the e-mails were received. Appellant does not identify the e-mail

address(es) wherethe e-mails supposedly were sent. He does not describe

whatthe content of any e-mails say. He does not identify who(i.e., which

Defendant) supposedly sent each e-mail. And he does not explain howthe

e-mail header information is falsified, misrepresented, or forged or how

the e-mail subject lines would be likely to mislead a recipient about a

material fact regarding the contents of the subject matter of the message in

violation of CASA. See 17529.5(a)(2)-(3).

As to the single Foot Locker e-mail Appellant chose to attach to the

FAC, Appellant claims that its subject line is misleading in violation of

CASA, but he does not explain how, nor does he plead any supporting


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facts. And the e-mail itself confirms that Appellants allegation makes no

sense whatsoever because the subject line reads Keep It Clean, Keep It

Classy with Fresh White Sneakers, and the content of the e-mail advertises

white sneakers. AA, Item 5 (FAC) at 8 & Ex. A. Appellant further

alleges that the header of this e-mail violates CASA because it does not

sufficiently identify Foot Locker as the sender; is not traceable to Foot

Locker through an online WHOIS database search; and is misleading

because it contains the words Foot Locker VIP and places an e. in front

of footlocker.com. Id. at 6-7. But Appellant is wrong on the facts and

the law, as explained below.

The FAC also fails to distinguish between the e-mails Appellant

purportedly received from Foot Locker and those he claims he received

from 1INK.com. Instead, he broadly claims, in the alternative, that the e-

mails received from both parties contained untraceable orotherwise

misleading sender information ormisleading header orsubject line

information. AA, Item 5 (FAC) at 6 (emphasis added).

Despite these clear pleading deficiencies, the FAC purports to assert

three causes of action: a statutory claim for violation of CASA, a

negligence claim based on a violation of CASA, and a claim seeking a

declaration that defendants violated CASA. AA, Item 5 (FAC) at 11-24.

Appellant seeks over $375,000 in damages, in addition to declaratory and

injunctive relief. Id., Prayer for Relief A-C.

Foot Locker (and 1INK.com) demurred to the FAC on grounds that

Appellant had failed to plead facts sufficient to state a cause of action underCASA, both as to the e-mail attached to the FAC and the 344-plus other e-

mails Appellant claims to have received. Foot Locker also argued that

Appellant had failed to meet the heightened pleading standard for CASA

claims, and that the FAC provided no factual basis for Appellant to join


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both Foot Locker and 1INK.com in the same action. See AA, Item 6.

Following a hearing on February 5, 2014,4the trial court issued an

order sustaining Foot Lockers (and 1INK.coms) demurrer without leave

to amend. See AA, Item 4. The trial court thereafter entered a Judgment of

Dismissal on March 7, 2014. See AA, Item 3. On May 12, 2014,

Appellant filed a Notice of Appeal. See AA, Item 1.

III.

ARGUMENT

Appellant makes two main arguments on appeal. First, he contends

that the allegations of the FAC are sufficient, and that the trial court should

not have sustained Foot Lockers demurrer. Second, he argues that the trial

court should have granted leave to amend. Appellant is wrong on both

counts. We address each argument in turn.5

A. The Trial Court Properly Sustained Foot Lockers Demurrer.

1. An Order Sustaining A Demurrer Is Reviewed De Novo.

The standard of review is well-settled: On appeal from an order of

dismissal after an order sustaining a demurrer, the standard of review is de

novo: we exercise our independent judgment about whether the complaint

states a cause of action as a matter of law. First, we give the complaint a

4A full transcript of the demurrer hearing is included in the

Reporters Transcript (RT) filed in this appeal.5

Appellant technically asserts a third argument: that the trial courtproperly declined to base its demurrer ruling on preemption grounds, i.e.,on grounds that Appellants CASA claims are preempted by the CAN-SPAM Act, 15 U.S.C. 7701, et seq. See Appellants Opening Brief(AOB) at 14-15. Foot Locker defers to Respondent 1INK.comsargument on this issue as 1INK.com asserted the preemption argumentbelow.


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reasonable interpretation, reading it as a whole and its parts in their

context. Next, we treat the demurrer as admitting all material facts properly

pleaded. Then we determine whether the complaint states facts sufficient to

constitute a cause of action. We do not, however, assume the truth of

contentions, deductions, or conclusions of law. State ex rel. McCann v.

Bank of America, N.A.(2011) 191 Cal.App.4th 897, 906 (citations and

quotations omitted, emphasis added).

2. Appellant Failed To Plead Facts Sufficient To State A

Cause of Action Under CASA As To The E-mail Attached

To The FAC.

We first discuss the insufficiency of Appellants allegations as to the

sole e-mail attached to the FAC. Appellant challenges two aspects of this

e-mail: the subject line and the header information.6

Under CASA, an unsolicited commercial e-mail advertisement is

unlawful if, inter alia, (1) it has a subject line that a person knows would

be likely to mislead a recipient, acting reasonably under the circumstances,

about a material fact regarding the contents or subject matter of the

message; or (2) it contains or is accompanied by falsified,

misrepresented, or forged header information. 17529.5(a)(2), (a)(3).

Here, the trial court properly sustained Foot Lockers demurrer

because Appellant has not pled facts sufficient to state a cause of action

under CASA as to the e-mail attached to the FAC. Indeed, even a cursory

review of the e-mail confirms that neither its subject line nor its header

6The header of an e-mail is the source, destination, and routinginformation attached to an electronic mail message, including theoriginating domain name and originating electronic mail address, and anyother information that appears in the line identifying, or purporting toidentify, a person initiating the message. Kleffman v. Vonage HoldingsCorp.(2010) 49 Cal.4th 334, 340 n.5 (quoting 15 U.S.C. 7702(8)).


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information violates CASA.

a. Appellant Failed To State A Claim Under CASA

Based On The Subject Line Of The E-mail

Attached To The FAC.

Appellants challenge to the subject line of the e-mail attached to the

FAC wholly lacks merit. The subject line reads Keep It Clean, Keep It

Classy with Fresh White Sneakers, and the content of the message

advertises white sneakers. AA, Item 5 (FAC) at 8 & Ex. A. Using an

objective standard, the e-mail clearly does not contain a subject line that

would be likely to mislead a recipient, acting reasonably under the

circumstances, about a material fact regarding the contents or subject matter

of the message. 17529.5(a)(3). Indeed, the subject line and content

match perfectly and there are nomisleading facts, much less materially

misleading facts.

The subject line at issue here is nothing like those in other cases

where courts have found that questions of fact existed as to whether subject

lines were misleading in violation of CASA. For example, inAsis

Internet Services v. Subscriberbase Inc.(N.D. Cal. Dec. 4, 2009) No. 09-

3503, 2009 WL 4723338, at *5, the court found that for purposes of

surviving a motion to dismiss, the complaint sufficiently alleged subject

lines likely to mislead a recipient, acting reasonably under the

circumstances, where the subject lines purport to provide free gifts to e-

mail recipients but the contents set forth disclaimers and terms and

conditions that in fact offer gifts only to those who perform additional

affirmative acts, such as signing up for a credit card or submitting a loan

application.7 Similarly, inAsis Internet Services v. Member Source

7Specific examples of the subject lines at issue in Subscriberbaseinclude: Go shop at Old Navy Stores loaded with $1000 Cash for Free!;

(continued)


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Media, LLC(N.D. Cal. Apr. 20, 2010) No. C-08-1321, 2010 WL 1610066,

at *5, the court found that a reasonable trier of fact could conclude that e-

mail subject lines stating Gift Card Inside and the like, which were

intended to have the recipients open the e-mails by enticing them with free

gifts, were misleading because the contents of the messages did not

actually contain gift cards or free gifts.

Here, by contrast, the subject lineKeep It Clean, Keep It Classy

with Fresh White Sneakerslawfully informs the recipient that the e-mail

is about white sneakers, and the content of the message, in fact, advertises

white sneakers. AA, Item 5 (FAC) at 8 & Ex. A. Accordingly, the

subject line of the e-mail attached to the FAC is not misleading, nor does it

otherwise violate CASA.

Remarkably, Appellant appears to concede that the subject line of

this e-mail does not violate CASA. In his Opening Brief, Appellant offers

no argument on this point whatsoever. Instead, he downplays the

significance of the e-mail despite the fact that it is the only one he

voluntarily chose to attach to the FAC and highlight as an example of

Foot Lockers alleged CASA violations. See Appellants Opening Brief

(AOB) at 10. Indeed, it appears Appellant would prefer for this Court to

ignore the e-mail attached to the FAC, and to instead blindly accept his

unsupported and conclusory allegations that all of the e-mails he received

had subject lines that were likely to mislead. See AOB at 10. However,

as discussed below, these allegations are no more than contentions,

(..continued)Let us buy you a 1080p HDTV; Test & Keep the 2 New BlackberryStorms; and Free Blackberry Storm. The body of the e-mails, however,included disclaimers, terms, and conditions that, for example, required therecipient to purchase something or file a credit application in order toobtain the free gift. Subscriberbase,2009 WL 4723338, at *1-2.


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deductions, or conclusions of law that need notand indeed cannotbe

assumed true. See State ex rel. McCann,191 Cal.App.4th at 906. As such,

Appellant has failed to state a CASA claim as to the subject line of the e-

mail attached to the FAC, and the trial court properly sustained Foot

Lockers demurrer in this regard.

b. Appellant Failed To State A Claim Under CASA

Based On The Header Information For The E-mail

Attached To The FAC.

Appellant also claims the header information for the e-mail attached

to the FAC is confusing and misleading in violation of CASA because

it allegedly misleads regarding the true identity of the person or entity

actually transmitting the email; suggests the existence of a pre-existing

relationship by using the words Foot Locker VIP; and improperly uses

e.footlocker.com instead of Foot Lockers regular domain name,

footlocker.com. AA, Item 5 (FAC) at 7. But like Appellants subject

line challenge, his header challenge also fails, for two independent reasons.

First, Appellants header claim is based on a clear misstatement of

law, as there is no cause of action under CASA for a misleading or

confusing header. Indeed, the plain language of CASA applies only to

headers that are falsified, forged, or misrepresented. See

17529.5(a)(2).

Critically, the California Supreme Court conclusively held that the

word misrepresented in Section 17529.5(a)(2) does notmean

misleading or likely to mislead, and that CASA does notrequire a

header to clearly identify the sender. Kleffman v. Vonage Holdings Corp.

(2010) 49 Cal.4th 334, 343-46. In Kleffman, the plaintiff argued that e-mail

headers violated Section 17529.5(a)(2) because they contained domain

names that were random, varied, garbled, and nonsensical, and

created the misleading or deceptive impressionthe


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misrepresentationthat they were from different entities when in fact

they were all from Vonage. Id.at 342. The Court rejected the plaintiffs

argument and found that the meaning of the word misrepresented in

section 17529.5(a)(2) takes color from the other words listed in the same

provisionfalsified and forgednot from the distinctly different likely

to mislead language found in the next provision, Section 17529.5(a)(3),

which applies to e-mail subject lines. Id.at 343. The Court further

observed it is evident the Legislature did not intend section 17529.5(a)(2)

to make it unlawful to use in a single e-mail a domain name that does not

make clear the identity of either the sender or the merchant-advertiser on

whose behalf the e-mail advertisement is sent. Id. at 345.

Under Kleffman, Appellant is barred as a matter of law from

asserting a CASA claim based on an allegedly confusing or misleading

header, for failure to use a specific domain name (such as footlocker.com

as Appellant suggests), or for failure to otherwise clearly identify the sender

of the e-mail. See Kleffman, 49 Cal.4th at 345-46 ([A] domain name in a

single e-mail that does not identify the sender, the merchant-advertiser, or

any other person or entity simply does not make any representation

regarding the e-mails source, either express or implied, within the common

understanding of that term, so it cannot be said to constitute

misrepresented information within the meaning of section

17529.5(a)(2).); see alsoBalsam v. Trancos(2012) 203 Cal.App.4th 1083,

1095 (recognizing that the Supreme Court in Kleffman (1) rejected

[plaintiffs] argument that the word misrepresented in section17529.5(a)(2) means misleading or likely to mislead; and (2) opined

that a state law requiring an e-mails From field to include the actual

name of the sender would constitute a content or labeling requirement

preempted by the [CAN-SPAM Act, 15 U.S.C. 7701, et seq.]).


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Likely realizing that Kleffman dooms his misleading header claim,

Appellant summarily declares that Kleffman is simply not applicable

here. See AOB at 7. But he does notbecause he cannotexplain why.

And although he tries to analogize this case toBalsamsimply because he,

too, allege[s] that the header information in each individual email

specifically violates CASA . (AOB at 7), what Appellant ignores is that

both Kleffman andBalsam confirm as a matter of law that there is no

cognizable CASA claim based on a misleading header. See Kleffman, 49

Cal.4th at 343; see alsoBalsam, 203 Cal.App.4th at 1095.

Likewise unpersuasive is Appellants rather bold suggestion that the

plain language of CASA is inconsequential, and that what he refers to as

the magic words of Section 17529.5(a)(2) have no bearing on his

misleading header claim. SeeAOB at 7-8. It should go without saying

that the Legislatures choice of different words(misrepresented versus

mislead) in side-by-side provisions of CASA (Sections 17529.5(a)(2) and

(a)(3)) reflects the Legislatures clear intent for a different meaning.

Regardless, the California Supreme Court so held in Kleffman. 49 Cal.4th

at 343. Appellants attempt to convince this Court to ignore a binding

decision from the California Supreme Court that (a) is directly on point,

and (b) rejected the exactargument Appellant advances here, is unavailing.

Second, Appellant has not alleged anyfactssuggesting that the

header information for the e-mail attached to the FAC is falsified,

forged, or misrepresented, nor could he. Contrary to Appellants

allegation that the header does not sufficiently identify Foot Locker, theheader conspicuously lists the originating e-mail address

([email protected]) and otherwise identifies Foot Locker by

name a total of five times. SeeAA, Item 5 (FAC), Ex. A. Moreover, the

body of the e-mail identifies Foot Locker an additional ten times, including


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a Foot Locker physical business address, a Foot Locker e-mail address to

which recipients can reply, a separate Foot Locker e-mail address for

customer service inquiries, and the highly recognizable FOOT LOCKER

APPROVED mark. Ibid.;see Rosolowski v. Guthy-Renker LLC(Oct.

29, 2014, B250951) __ Cal.App.4th __ [2014 WL 5465008, at *2]

(affirming dismissal of CASA claim and holding that a header does not

misrepresent a senders identity where the senders identity is readily

ascertainable from the body of the email, even if the header neither

identifies the senders official name nor identifies an entity whose

domain name is traceable via an online database). The suggestion that any

recipient would not be able to readily ascertain Foot Lockers identity from

the e-mail attached to the FAC is utterly absurd.

Appellants attempt to assert a CASA header claim based on the use

of e.footlocker.com, as opposed to footlocker.com, likewise lacks

merit. Initially, Appellants claim that the mere addition of e. in front of

footlocker.com confuses the identity of the sender strains credulity,

particularly in light ofRosolowski. Indeed, the header, domain address, and

body of the e-mail identify Foot Locker fifteen times, as noted above. And

inasmuch as the obvious purpose of the e-mail is to encourage recipients to

purchase products from Foot Lockers website, Appellants suggestion that

Foot Locker was trying to confuse the recipient as to the e-mails origin

makes no sense and is simply implausible. Rosolowski, __ Cal.App.4th __

[2014 WL 5465008, at *8] (giving Section 17529.5(a)(2) a commonsense

reading and holding that Plaintiffs cannot plausibly allege that Guthyattempted to conceal its identi[t]y, as the clear purpose of emails was to

drive traffic to Guthys website.).

Regardless, contrary to Appellants allegations (AA, Item 5 (FAC) at

7), the domain e.footlocker.com does, in fact, trace directly to Foot


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Locker via a WHOIS database search.8 See accompanying Request for

Judicial Notice (requesting judicial notice of results of WHOIS database

search for e.footlocker.com).

Although Appellant characterizes Foot Lockers request for judicial

notice (made in the trial court) as extraordinary (AOB at 8), he does not

dispute that e.footlocker.com traces directly to Foot Locker via a WHOIS

database search. He does not dispute that the WHOIS search results are

capable of immediate and accurate determination by resort to sources of

reasonably indisputable accuracy. Nor does Appellant claim that he

personally conducted a WHOIS database search that yielded different

results.

This Court need notand should notturn a blind eye to the fact

that e.footlocker.com does, in fact, trace directly to Foot Locker via a

WHOIS database search (which Appellant himself put at issue, by

referencing it in the FAC). Appellants allegations are demonstrably false

based on facts that are capable of immediate and accurate determination by

resort to sources of reasonably indisputable accuracy, thus they may be

disregarded. Scott v. JPMorgan Chase Bank, N.A.(2013) 214 Cal.App.4th

743, 751-52 (Indeed, a demurrer may be sustained where judicially

noticeable facts render the pleading defective , and allegations in the

pleading may be disregarded if they are contrary to facts judicially

noticed.) (citations omitted).

To be clear, even if e.footlocker.com was not traceable to Foot

Locker via a WHOIS database search (which it is), Appellants header

8The WHOIS reverse-lookup tool is an online and publicly

available database, which was recognized by this District inBalsam, 203Cal.App.4th at 1095, and also by the Second District inRosolowski, __Cal.App.4th __ [2014 WL 5465008, at *1].


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claim would still fail because CASA does not require a senders domain

name to be traceable in a publicly available online database. Indeed,

Balsamfound that e-mail header information is falsified or misrepresented

for purposes of section 17529.5(a)(2) when it uses a sender domain name

thatneitheridentifies the actual sender on its facenoris readily

traceable to the sender using a publicly available online database such

as WHOIS. Balsam, 203 Cal.App.4th at 1101 (italicized emphasis in

original; bold and underlined emphasis added). The court thus recognized

there are multiple ways to comply with Section 17529.5(a)(2) beyond just

traceability in the WHOIS database. And inRosolowski, the court

answered a question left open inBalsam,and held that a header does not

misrepresent a senders identity where the senders identity is readily

ascertainable from the body of the email, even ifthe header neither

identifies the senders official name nor contains a traceable domain

name. See Rosolowski,__ Cal.App.4th __ [2014 WL 5465008, at *2].

Here, of course, Appellants header challenge fails on all counts

because e.footlocker.com does identify Foot Locker on its face, the

domain isreadily traceable to Foot Locker via a WHOIS database search,

and the e-mail as a whole identifies Foot Locker by name a total of fifteen

times, including a physical business address and several e-mail addresses.

See Rosolowski, __ Cal.App.4th __ [2014 WL 5465008, at *8] (affirming

dismissal of header claim where body of e-mails at issue provided senders

physical address). Accordingly, Appellant has failed to state a CASA claim

as to the header information of the e-mail attached to the FAC, and the trialcourt properly sustained Foot Lockers demurrer as a result.


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Cause of Action Under CASA As To The 344-Plus Other

E-mails He Claims He Received.

The trial court also correctly sustained Foot Lockers demurrer as tothe 344-plus other e-mails Appellant claims he received, for which he

provided no factual detail whatsoever. AA, Item 5 (FAC) at 8 (alleging

receipt of approximately 345 to 355 e-mails). Although Appellant claims

these e-mails contain headers and/or subject lines that violate CASA, and

insists his allegations must be taken as true at this stage, Appellant ignores

that he has not alleged a singlefactregarding the e-mails, including the

headers or subject lines. In fact, the only thing that is clear from the four

corners of the FAC is that Appellants unsupported, vague, and conclusory

allegations regarding these 344-plus e-mails fail to state a cause of action

under CASA.

CASA claims sound in fraud and must be pled with the level of

particularity required for a claim of common law fraud, which Appellant

clearly has not done here. But even if CASA claims were not subject to a

heightened pleading standard, Appellants allegations still would fail

because they do not even satisfy basic pleading requirements.9

9Foot Locker argued below that the FAC failed to satisfy the

heightened pleading standard for CASA claims. Although the trial courtdid not base its ruling on Appellants failure to plead with the requisitelevel of particularity, this Court may affirm the judgment on that ground.See Little v. Los Angeles County Assessment Appeals Bd.(2007) 155Cal.App.4th 915, 925, fn.6 (Respondents are free to urge affirmance of thejudgment on grounds other than those cited by the trial court. (quotationsand citations omitted)).


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a. CASA Claims Sound In Fraud And Must Be Pled

With Particularity.

It is well settled under California law that common law fraud and

other claims sounding in fraud must be pled with particularity. See

Robinson Helicopter Co., Inc.v. Dana Corp. (2004) 34 Cal.4th 979, 993

(In California, fraud must be pled specifically; general and conclusory

allegations do not suffice (quotations omitted)) (quotingLazar v. Superior

Court(1996) 12 Cal.4th 631, 645). See also State ex rel. McCann, 191

Cal.App.4th at 906 (observing that a False Claims Act cause of action, [a]s

in any action sounding in fraud, must be pleaded with particularity).

There is no question that Appellants CASA claims are grounded in fraud

inasmuch as he specifically alleges that the e-mails contained information

that is false, misrepresented, misleading, or otherwise deceptive. AA,

Item 5 (FAC) at 10. Moreover, CASA expressly requires Appellant to

prove that the e-mails at issue contain falsified, misrepresented, or forged

header information or that the subject lines would be likely to mislead a

recipient about a material fact. Hypertouch, Inc. v. Valueclick, Inc.

(2011) 192 Cal.App.4th 805, 833. Seealso 17529.5(a).

Courts repeatedly have found that CASA claims are grounded in

fraud and thus must be pled with the particularity required for fraud

claims. See Hypertouch v. Azoogle.com, Inc.(9th Cir. 2010) 386 Fed.

Appx. 701, 702 (affirming dismissal of CASA claims because they were

pled with no degree of particularity and agree[ing] with the district court

that the [CASA] causes of action as pled sound in fraud.).See also

Subscriberbase, 2009 WL 4723338, at *3-5 (holding that CASA claims

were grounded in fraud where plaintiff alleged defendants intended to

mislead the recipients of their emails and dismissing claims for the over

2,000 alleged violations for which plaintiffs did not submit sample e-


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mails);Moreland v. AD Optimizers, LLC(N.D. Cal. July 18, 2013) No.

5:13-CV-00216-PSG, 2013 WL 3815663, at *2 (finding claims that email

headers contained false and misleading information in violation of CASA

were grounded in fraud and must be pled with particularity);Asis

Internet Servs. v. Optin Global, Inc. (N.D. Cal. June 30, 2006) No. C 05-

5124 CW, 2006 WL 1820902, at *4-5 (granting motion to dismiss and

finding CASA claims were not pled with sufficient particularity where

plaintiff alleged that subject lines were false and misleading and would be

likely to mislead a recipient but did not provide an example or otherwise

specify the manner in which the subject lines were false and misleading

and failed to plead the identity of the senders of the alleged spam).10

InMoreland, for example, the court recently dismissed CASA

claims for failure to plead with particularity. See 2013 WL 3815663, at *3.

The plaintiff alleged that he received over 1,300 spam e-mails that

contained false and misleading information in the e-mail headers. Id.at

*1. In finding that the allegations did not satisfy the heightened pleading

standard, the court explained that the plaintiff

has failed to provide the specifics regarding (including anexample of) each type of allegedly false or misleadingadvertisement, the number of those advertisements [or] thedate ranges of the emails in each category. He did notprovide a single example email, does not identify how manyof the 1,300 emails fall into each of his seven categories ofprohibited tactics, and fails to identify the date ranges of

10Appellant may contend in reply that no California statecourt has

squarely held that CASA claims must be pled with particularity. Althoughthis is true, no California state court has held otherwise, much lessaddressed the subject. But in light of the myriad federal decisions on point,and the California precedent that has imposed the particularity requirementfor claims sounding in fraud, it is no great leap to conclude that CASAclaims must satisfy a heightened pleading standard, consistent with theoverwhelming weight of authority.


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the emails in each category. Nor has he alleged thedomain names for the landing sites to which any of theemails at issue redirect, who those sites were registered to,any of the allegedly unlawful subject lines, the sender ofany of the emails, or the dates on which each email was

sent.

Id.at *2 (emphasis added).

Appellants bare-bones allegations in the FAC here similarly fail to

satisfy this heightened pleading standard. Indeed, he has provided no facts

whatsoeverregarding the 344-plus e-mails, much less the required who,

what, when, where, and how of the alleged fraud. See Robinson,34

Cal.4th at 993 (Th[e] particularity requirement necessitates pleadingfacts

which show how, when, where, to whom, and by what means the

representations were tendered. (quotations omitted)). Like inMoreland,

Appellant did not include examples of the various types of allegedly

improper e-mails, with the exception of a single e-mail that plainly does not

violate CASA. He does not allege the dates whenhe received any of the e-

mails. He does not identify the e-mail address(es) wherethe e-mails

supposedly were sent. He does not describe whatthe content of the e-mails

say. He does not say whosupposedly sent each e-mail. And he does not

explain howthe e-mail header information is falsified, misrepresented, or

forged or howany e-mail subject lines would be likely to mislead a

recipient about a material fact regarding the contents of the subject

matter of the message in violation of CASA. See 17529.5(a).

The lack of particularity of Appellants allegations against Foot

Lockeris further compounded by the fact that he lumped together his

accusations against Foot Locker and 1INK.com, broadly claiming, in the

alternative, that the e-mails received from both parties contained

untraceable orotherwise misleading sender information ormisleading

header orsubject line information. AA, Item 5 (FAC) at 6 (emphasis


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added). In the absence of any underlying specificssuch as sample e-

mails, how many fall into each category, the dates they were sent, etc.

Appellants wholly unsupported and conclusory allegations are insufficient

and fail to satisfy the level of particularity required for CASA claims.

b. Appellants CASA Claims As To The 344-Plus

Other E-Mails Fail To Satisfy Basic Pleading

Requirements.

Even if Appellant was not required to plead his CASA claims with

particularity, his unsupported, vague, and conclusory allegations still do not

satisfy even the most basic requirements of California pleading. See Code

Civ. Proc., 425.10(a)(1) (A complaint shall contain A statement of

the factsconstituting the cause of action, in ordinary and concise

language. (emphasis added)). Here, there are no facts whatsoever alleged

as to the subject lines or header information for the 344-plus e-mails

Appellant claims to have received from Foot Locker. Appellant broadly

claims that a large number of the e-mails contained generic header

information, such as Foot Locker VIP, or used a domain including

e.footlocker.com, which Appellant (wrongly, as explained above and

below) concludes is misleading and deceptive. AA, Item 5 (FAC) at 7.

But beyond Appellants legal conclusions, which the Court need not accept

as true, there are nofactsprovided to support the claims alleged. See State

ex rel. McCann, 191 Cal.App.4th at 906 (on de novo review of a demurrer

ruling, We do not assume the truth of contentions, deductions, or

conclusions of law.);Hamilton v. Greenwich Investors XXVI, LLC(2011)

195 Cal.App.4th 1602, 1609 (same).

Significantly, the FAC does not plead facts that showhow the

subject lines of the 344-plus e-mailswhen viewed against the content of

these e-mailswere likely to mislead, or how the header information of

these e-mails was falsified, misrepresented, or forged. Absent these basic


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and fundamental facts, the FAC does not state a claim under CASA. In

sum, Appellant has failed to plead facts sufficient to state a cause of action

as to the 344-plus other e-mails he allegedly received (but declined to

attach to the FAC), and the trial court properly sustained Foot Lockers

demurrer on this basis.


Cause of Action For Negligence Or Declaratory Relief.

Because of Appellants pleading deficiencies as to his CASA claims,

his derivative claims for negligence and declaratory relief fail as well.

Indeed, these two claims are entirely dependent upon Appellants claim that

Foot Locker violated CASA. SeeAA, Item 5 (FAC) at 20 (alleging

CASA violation as breach of duty), 24 (seeking judicial declaration as to

parties respective liabilities under CASA). As a result, the trial court

properly sustained Foot Lockers demurrer as to Appellants claims for

negligence and declaratory relief. Notably, Appellant does not argue

otherwise here.

5. Appellant Failed To Plead Facts Sufficient To Support

The Joinder Of Foot Locker And 1INK.com In The SameAction.

Apart from Appellants failure to plead facts sufficient to state any

of the causes of action, the FAC is defective for an additional reason:

Appellant failed to plead facts sufficient to support the joinder of both Foot

Locker and 1INK.com in the same action. See Code Civ. Proc.,

430.10(d) (demurrer proper where complaint contains a misjoinder of

parties). Indeed, Appellant failed to allege anyfacts suggesting a

relationship or any other connection between Foot Locker and 1INK.com,

and there is no basis to support the joinder of these two entities as co-

Defendants in this case.


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Initially, it is clear from the face of the FAC that Foot Locker and

1INK.com are separate and unrelated businesses. Foot Locker is a New

York corporation that acts as a retailer of athletic footwear and apparel.

AA, Item 5 (FAC) at 2. By contrast, 1INK.com is a California business

that sells commercial printer ink and similar products. Id. at 3. Appellant

does not allege, for example, that one company hired the other to advertise

products by e-mail, that they jointly advertise their products by e-mail

pursuant to a contract or other business relationship, or that they were

working in concert.

Californias permissive joinder rule requires more. Two defendants

may be joined in a single action only if: (1) the plaintiff asserts against

them any right to relief jointly, severally, or in the alternative; (2) that

arises out of the same transaction, occurrence, or series of transactions or

occurrences; and(3) there is at least one question of law or fact that is

common to all defendants. SeeCode Civ. Proc., 379(a)(1).

The FAC does not support any of the above factors, much less all

three. Indeed, there is no link between the factual bases for Appellants

claims against Foot Locker and his claims against 1INK.com. Appellant

does not assert against Foot Locker and 1INK.com a right to relief jointly,

severally, or in the alternative. In other words, Appellant does not claim

that Foot Locker is responsible for the 1INK.com-related e-mails, or vice-

versa. Rather, Appellants claims against 1INK.com are entirely

independent of his claims against Foot Locker.

Nor do Appellants claims against Foot Locker and 1INK.com ariseout of the same series of transactions or occurrences. The sole e-mail

Appellant provided relates to Foot Locker only. AA, Item 5 (FAC) at 8 &

Ex. A. It appears that each remaining e-mail was a separate and unrelated

transaction allegedly involving either Foot Locker or 1INK.com, but not


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both. Id. at 8, 9. Thus, there is no connection whatsoever between the

factual bases for Appellants claims against Foot Locker and his claims

against 1INK.com.

Appellants claims against Foot Locker and 1INK.com likewise do

not present common questions of law or fact. Appellant now argues that

both entities were engaged in the same conduct (spam advertising),

directed at the same individual (Plaintiff), and are alleged to have

violated [CASA]. AOB at 11. But, as noted, each e-mail was separate,

distinct and unrelated, and allegedly was sent by eitherFoot Locker or

1INK.com. AA, Item 5 (FAC) at 8, 9. The evidence Appellant would

rely on for his claims against Foot Locker (i.e., the e-mails) would not

overlap with the evidence Appellant would rely on for his claims against

1INK.com. Each companys defenses would involve separate proofs that

would be unique to Foot Locker and 1INK.com, respectively. And there

are no common questions of law because whether any e-mails allegedly

sent to Appellant by Foot Locker violated CASA has no bearing

whatsoever on whether e-mails sent to Appellant by 1INK.com violated

CASA. Accordingly, the FAC fails to plead facts sufficient to support the

joinder of Foot Locker and 1INK.com as co-defendants in this action.

To be sure, the trial court fully agreed, and it made clear at the

demurrer hearing that Appellant had no basis to join Foot Locker and

1INK.com in this case. See RT 3:18-20 (You didnt establish any facts

about the joinder. You cant get around that.); id.9:7 (Clearly, theres

no basis for joinder here.); id.10:24-25 (Youve not said one thing inyour pleadings that justifies joinder, nothing.); id.11:5-8 ([Y]ou have

no basis for a joinder, none whatsoever. All you have is that they both

sent e-mails, and that doesnt that does not make it under [Code of Civil

Procedure Section 379(a)(1)].) (emphasis added).


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Appellant now takes issue with the trial courts ruling, contending

the court committed reversible error because it did not specifically make

a finding of actual prejudice to Foot Locker caused by the misjoinder.

See AOB at 11-12. This argument fails for two reasons.

First,Appellant did not contend below that a finding of prejudice

was required, and thus he cannot make this argument for the first time on

appeal. SeeDietz v. Meisenheimer & Herron(2009) 177 Cal.App.4th 771,

799 (describing an appellants burden to demonstrate that it properly

preserved its appellate claims in the trial court, in accordance with the

rule that contentions not raised in the trial court will not be considered

on appeal (quotations and citations omitted, emphasis added)); id. at 800-

01 (concluding appellant forfeited certain contentions made for the first

time on appeal because they were not raised in the trial court). Indeed,

Appellant nowhere raised the issue of prejudice below, and this Court

will search in vain for a single appearance of the word prejudice in either

Appellants opposition to Foot Lockers demurrer or in the transcript of the

demurrer hearing. As a result, Appellant has forfeited any argument that

the trial court was required to find actual prejudice in order to sustain

Foot Lockers demurrer.

Second, even if this Court is inclined to consider Appellants belated

argument, a finding of actual prejudice was not required. The Code of Civil

Procedure most certainly does not state that a defendant must prove actual

prejudice to establish misjoinder. See Code Civ. Proc., 430.10(d)

(authorizing demurrer on grounds of misjoinder of parties). As purportedauthority for his contrary position, Appellant cites the following footnote in the

thirty-year-old case ofAnaya v. Superior Court (1984) 160 Cal.App.3d 228:

In answering this question [whether the trial court correctlyconcluded there was a misjoinder], we cannot ignore Witkinsobservation that [a]lthough the code seems to authorize the


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sustaining of a demurrer solely [for misjoinder of parties], theauthorities indicate that the defendant is entitled to afavorable ruling only when he can show some prejudicesuffered or some interests affected by the misjoinder. In

practical effect this means that such a demurrer can besuccessfully used only by the persons improperly joined. Aproper defendant is seldom injured by the joinder ofunnecessary or improper parties plaintiff or defendant, and hisdemurrer ought to be overruled. [Citations.] (3 Witkin,Cal.Procedure (2d ed. 1971) Pleading, 823, p. 2432.)

Id. at 231, fn.1 (emphasis in original).

But this footnote is not binding here. Initially, notwithstanding the

Anayacourts offhand reference to Witkin, the court did notreverse on

grounds that the defendants had failed to showor that the trial court had

failed to findprejudice caused by the asserted misjoinder. Rather, the

court held that joinder was proper because the plaintiffs claims arose out of

the same series of transactions or occurrences and [c]ommon issues of

fact and law abound. Anaya,160 Cal.App.3d at 233. The result is that the

courts footnoted discussion of prejudice is, at most, non-binding dictum.

See Thomas v. Stenberg(2012) 206 Cal.App.4th 654, 664 (It is axiomatic... that a decision does not stand for a proposition not considered by the

court. (citations omitted, quotation omitted)).

But more importantly, since the timeAnayawas decided thirty years

ago, appellate courtshave upheld demurrer rulings on grounds of

misjoinder without requiring a finding of prejudice, consistent with the

plain language of the permissive joinder rule. For example, in Farmers

Insurance Exchange v. Adams(1985) 170 Cal.App.3d 712, the court

concluded that the joinder of numerous defendants was improper and in

violation of the permissive joinder rule (Code Civ. Proc., 379) because

the requirement of same transaction or occurrence ha[d] not been met .

Id. at 723. The court did notdiscuss potential prejudice to any of the


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defendants, much less conclude that the defendants were required to show

prejudice or that the trial court erred by failing to make such a finding.

Similarly, inMoe v. Anderson(2012) 207 Cal.App.4th 826, the court

held that two plaintiffs sexual assault claims against the same defendant

doctor occurring at separate and distinct times were not properly joined in

accordance with the permissive joinder rule for plaintiffs (Code Civ. Proc.,

378) because the claims did not arise out of the same series of

transactions or occurrences. Id. at 833. TheMoe court likewise did not

analyze whether any party had shownor whether the trial court had

foundprejudice caused by the misjoinder.

Accordingly, the trial court below was not required to find actual

prejudice, and this Court should affirm its demurrer ruling.11

The FAC

lacks any factual basis to support the joinder of Foot Locker and 1INK.com

in this action under the permissive joinder rule (Code Civ. Proc.,

379(a)(1)). Appellants argument to the contrary lacks merit and should be

rejected.12

In sum, because the trial courts order sustaining Foot Lockers

demurrer was correct on multiple, independent grounds, the Judgment of

11Evenassuming for the sake of argument that theAnaya footnote

was binding on the trial court below (which it was not), a showing ofactual prejudice stillwas not required. See Anaya, 160 Cal.App.3d at231, fn.1 (discussing showing of prejudice orsome interests affected bythe misjoinder). It is beyond dispute that Foot Lockers interests wereaffected by the misjoinder because the presence of 1INK.com in this case

prevented Foot Locker from exercising its right to remove this action tofederal court on the basis of diversity jurisdiction under 28 U.S.C. 1332.See RA 12-14 (District Court Order remanding action due to the forum-defendant rule).

12Should any of Appellants claims survive this appeal, the trialcourt should be instructed to sever the claims against 1INK.com for thereasons discussed herein.


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Dismissal should be affirmed.

B. The Trial Court Did Not Abuse Its Discretion In Denying LeaveTo Amend.

Appellants second argument is that the trial court should have

granted him leave to amend the FAC. But, as explained below, Appellant

had multiple opportunities in the trial court to demonstrate how he would

amend the FAC to cure the defects in his claims. Yet Appellant failed to do

so at every turnand has again failed to do so before this Court. In fact,

the only information he has provided to date confirms that any further

amendment would be futile. The inescapable conclusion is that the trial

court properly denied leave to amend, and its ruling should be affirmed.

1. A Denial Of Leave To Amend Is Reviewed For Abuse OfDiscretion.

The standard of review for an order denying leave to amend is as

follows: When a demurrer is sustained without leave to amend, we decide

whether there is a reasonable possibility that the defect can be cured by

amendment: if it can be, the trial court has abused its discretion and we

reverse; if not, there has been no abuse of discretion and we affirm. The

burden of proving such reasonable possibility is squarely on the

plaintiff. State ex rel. McCann, 191 Cal.App.4th at 906 (citations and

quotations omitted; emphasis added).

To satisfy that burden, the plaintiff must show in what manner he

can amend his complaint and how that amendment will change the

legal effect of his pleading. The assertion of an abstract right to amend

does not satisfy this burden. The plaintiff must clearly and specifically set

forth the applicable substantive law and the legal basis for amendment, i.e.,

the elements of the cause of action and authority for it. Further, the

plaintiff must set forth factual allegationsthat sufficiently state all


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required elements of that cause of action. Rosen v. St. Joseph Hospital of

Orange County(2011) 193 Cal.App.4th 453, 458 (citations and quotations

omitted; emphasis added). See also Arei II Cases(2013) 216 Cal.App.4th

1004, 1020 (Where the appellant offers no allegations to support the

possibility of amendment and no legal authority showing the viability of

new causes of action, there is no basis for finding the trial court abused its

discretion when it sustained the demurrer without leave to amend.

(quotations and citations omitted)).

Significantly, [l]eave to amend should not be granted where

amendment would be futile. Tucker v. Pacific Bell Mobile Services(2012)

208 Cal.App.4th 201, 211 (citation omitted). See also Singh v. Lipworth

(2014) 227 Cal.App.4th 813, 828 ([L]eave to amend may be denied where

permitting an amendment would be futile, e.g., where the amendment does

not state a cause of action. (citations omitted)).

2. Appellant Has Failed To Show A Reasonable PossibilityThat The FAC Can Be Cured By Further Amendment.

Appellant has failed to show a reasonable possibility that he canamend the FAC to pleadfactssufficient to state a cause of action under

CASA. Accordingly, the trial court did not abuse its discretion and

properly denied leave to amend.

Indeed, Appellant hadfour chances in the trial court proceedings to

show a sufficient factual basis for his claims. He could not do so. And

now, before this Court, Appellant has had afifth chance to identify facts

that might show a reasonable possibility he can cure his pleading

deficiencies. Again, Appellant has come up short. We briefly discuss each

of Appellants failed opportunities, and explain why he should not be given

asixthbite at the apple.


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a. The Complaint.

Appellants first opportunity to plead facts to support his claims was,

of course, his original Complaint. See RA 2. But the original Complaint

did not attach a single e-mail out of the hundreds allegedly received. Nor

did Appellant describe the specific subject lines or header information for

any of the allegedly offending e-mails, or provide any other relevant facts.

Indeed, because Appellants allegations were far too vague to state a claim

under any pleading standard, both Foot Locker and 1INK.com filed

demurrers highlighting the numerous defects in Appellants original

Complaint. See, e.g., RA 20 (Foot Lockers Demurrer) (Plaintiff has

provided no specifics whatsoeverregarding the emails.); id. at 17-18

([N]one of the allegedly unlawful emails that Plaintiff says he received are

attached to the Complaint, and the Complaint lacks even the most basic

details about the emails.).

b. The First Amended Complaint.

Appellant apparently agreed that his original Complaint was

deficient because he chose to amend, rather than oppose the demurrers.

Although Appellant amended as of right, he did so with the benefit of

having reviewed Foot Lockers and 1INK.coms briefing in support of their

respective demurrers.

Nevertheless, Appellants second bite at the apple failed to cure the

fatal deficiencies in his original Complaint. Indeed, in the FAC, Appellant

made only one material change: he attached a single e-mail he allegedly

received from Foot Locker, which, as discussed above, does not violate

CASA. As for the remaining e-mails he supposedly received, Appellant

againfailed to allege anyfacts about those e-mails whatsoever, including

how the subject lines and/or header information for these e-mails

supposedly violated CASA. Accordingly, Foot Locker and 1INK.com


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demurred for a second time, putting Appellant on noticeyet againof his

pleading deficiencies.

c.

Appellants Opposition To RespondentsDemurrers.

Appellant had a third opportunity to demonstrate a factual basis for

his claims in his opposition to the demurrers. But the bulk of Appellants

brief attempted to justify the allegations as to the single e-mail attached to

the FAC, which, as discussed above, does not violate CASA. As for the

remaining 344-plus e-mails Appellant claims he received from Foot

Locker, he again declined to provide any facts whatsoever regarding the

emails. Appellant did not describe how he might amend and did not

request leave to amend in his opposition brief. Instead, Appellant rested on

the vague and conclusory allegations of the FAC. See AA, Item 8

(opposition brief) at 8 (arguing that the allegations in Plaintiffs FAC

speak for themselves and are proper and sufficient.).

On February 4, 2014, the trial court issued the following tentative

ruling:Matter on calendar for Wednesday, February 5, 2014, Line 8,DEFENDANT FOOT LOCKER RETAIL, INC.sDEMURRER TO 1ST AMENDED COMPLAINT.Sustained without leave to amend pursuant to CCP secs.430.10(d) and (e). The First Amended Complaint (FAC)does not plead facts that establish defendants may be joinedin one action. (CCP sec. 379(a)(1).) The FAC does not pleadfacts sufficient to establish a violation of the California Anti-Spam Act (CASA). The FAC does not plead facts that

establish that Plaintiff received emails with headerinformation that is falsified, misrepresented, or forged.

(Bus. & Prof. Code sec. 17529.5(a)(2); see also Kleffman v.Vonage Holdings Corp.(2010) 49 Cal.4th 334, 343-46.) TheFAC also does not plead facts that establish that Plaintiff

received emails with a subject line that a person knows

would be likely to mislead a recipient, acting reasonably


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under the circumstances, about a material fact regarding

the contents or subject matter of the message. (Bus. &Prof. Code sec. 17529.5(a)(3).) Because the causes of actionfor negligence and declaratory relief are predicated on a

violation of CASA, the FAC fails to plead facts to state thosecauses of action. The demurrer is sustained without leaveto amendin light of the fact that Plaintiff has already had oneopportunity to amend the complaint to cure these defects.Additionally, Plaintiff did not request leave to amend in hisopposition, nor did Plaintiff state how he could amend thecomplaint to cure these defects.

(Emphasis added.) Appellant contested the tentative, and the parties

convened for the hearing the next day.

d. The Demurrer Hearing.

The demurrer hearing on February 5, 2014 provided Appellant a

fourth chance to show how he could amend to cure the defects in his

pleading. Indeed, during the hearing the trial court gave Appellant multiple

opportunities to salvage his claims, repeatedly asking him how he would

amend, and inviting Appellant to state facts that allegedly support his

CASA claims. SeeRT 2:15 (How are you going to amend?); id.4:11-

12 (Tell me what youre going to do. What would you plead?); id.

5:24-25 ([I]f you wanted to amend, you say so. But more important than

that, you say how you would amend.); id.7:3 (What would you do?

Tell me how you would amend.); id.7:6 (What are you going to say in

your pleadings?); id.12:15-24 ([Y]ou allege that you received e-mails

with misleading subject lines. But in the Complaint you allege no facts

about what the subject lines actually say.); id.13:21-22 (I must tell you,

you had every chance, you know, every clue to plead this correctly, and you

didnt do it.) (emphasis added).

Appellants responses were evasive, vague and conclusory, and he

utterly failed to identify anyfactsthat could support a CASA claim.


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Indeed, Appellants primary mantra was that he had many e-mails in his

possession that contained unspecified subject lines thataccording to

Appellantare misleading and thus violate CASA. See RT 2:16-17 (I

have subject lines, specific e-mails. I have 350 e-mails.); id. 5:20 (Ive

got plenty of cards.); id. 6:1-2 (I want to amend because I can amend. I

have plenty of other details to include.); id.7:4-12 (Im going to include

specifically more of these e-mails. Im going to say that these subject

lines in these other e-mails are misleading, false and misleading.); id.

7:20-22 (I believe I can successfully amend the Complaint. I have 350

plus e-mails. Theres a serious issue with the subject lines.).

The best Appellant could muster was when he said he [had] an e-

mail right here that says Your VIP status update right in the subject

line. The implied statement there is, youre a VIP. Youre a preexisting

VIP customer of Foot Locker. RT 4:13-18. According to Appellant, Its

false and its misrepresented because Im not a VIP. Im not a preexisting

e-mail customer at all. Id.4:21-22.

But even as to this new e-mail, Appellant failed to identify facts

sufficient to support a CASA claim concerning the subject line. In fact,

Appellants own statements confirm he cannot establish a CASA claim

regarding the new e-mails subject line. First, to establish a subject line

claim, Appellant must allege facts showing that the e-mail has a subject

line that a person knows would be likely to mislead a recipient, acting

reasonably under the circumstances, about a material fact regarding the

contents or subject matter of the message. 17529.5(a)(3) (emphasisadded). But Appellant declared during the hearing: Im not a VIP. Im

not a preexisting e-mail customer at all. See RT 4:21-22. Taking

Appellant at his word, it follows that he obviously knew these purported

facts at the time he received the e-mail. Using an objective standard, it is


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clear the recipient (Appellant) could not have been misled by the subject

line of the VIP e-mail acting reasonably under the circumstances, thus

the e-mail does not violate CASA.

Second, a subject line violates CASA only if it is likely to mislead a

recipient about amaterial fact regardingthe contents or subject matter

of the message. 17529.5(a)(3) (emphasis added). But at the hearing

Appellant said nothing whatsoever about the contents or subject matter of

the VIP e-mail. Thus, there is no way to determine whether the subject

linestanding aloneis materially misleading. Indeed, if the content of

the e-mail does, in fact, discuss a VIP status update, thenmuch like the

White Sneakers e-mail attached to the FACthe subject line and content

match perfectly, and there is no CASA violation.13

e. Appellants Opening Brief Fails To Establish ABasis For Further Amendment, And He Should NotGet A Sixth Bite At The Apple.

Appellant now appeals the trial courts order sustaining Foot

Lockers demurrer without leave to amend, giving him afifthchance to

explain how he would amend to cure his pleading deficiencies. Appellant

has failed to satisfy his burden of proof, however, and he should not get a

sixth bite at the apple. And to be clear, now that Appellant has failed to

make the required showing in his Opening Brief, he cannot attempt to do so

on reply. See Dietz, 177 Cal.App.4th at 801 ([P]oints raised in the reply

brief for the first time will not be considered, unless good reason is shown

for failure to present them before. (citations and quotations omitted)).

13To the extent Appellant challenges the subject line of the new e-mail as false and misrepresented, that test applies to header information,but not subject lines. 17529.5(a)(2)-(3).


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Appellants opening brief reveals he still believesincorrectlythat

he can assert a CASA claim based on a misleading header. See AOB at

6-9. As explained above, under Kleffman, there is no set of facts that could

state a cause of action under CASA for a misleading header as a matter of

law. See Kleffman, 49 Cal.4th at 343.

But even putting aside the fact that Kleffmandooms his

misleading header argument, Appellant has not even attempted to explain

howhe would amend to assert a CASA claim based on the headers of any

of the e-mails he claims he received. Accordingly, Appellant has not

shown a reasonable possibility of curing the defects in the FAC. See Titus

v. Canyon Lake Property Owners Assn.(2004) 118 Cal.App.4th 906, 917

(Leave to amend is properly denied if the facts and nature of plaintiffs

claim are clear and under the substantive law, no liability exists .

(quotations and citations omitted)). See also Seymour v. State of California

(1984) 156 Cal.App.3d 200, 205 (affirming order sustaining demurrer

without leave to amend where plaintiffs proposed new allegations to

support his estoppel claim were nothing more than an attempt to assert a

cause of action for misrepresentation by certain state employees. [and]

any claim of misrepresentation is barred by the Tort Claims Act. (citations

omitted)); ibid. (A trial court may properly sustain a general demurrer to a

complaint without leave to amend when the matter presented can be

determined as a matter of law. (citation omitted)).

Appellants opening brief also fails to explain howhe could amend

to cure the defects in his subject line allegations, and he, yet again, failed toset forth factual allegations that sufficiently state all required elements of

a CASA claim. Rosen, 193 Cal.App.4th at 458. Instead, Appellant insists

that during the demurrer hearing he proffered specific ways in which he

could amend the FAC to address the trial courts concerns (AOB at 13)


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which is plainly wrong, as explained in Section B.2.d. above. And while

Appellant suggests he could easily attach printed-out hard copies of the

e-mails at issue to his next amended pleading, seeAOB at 14, in the

absence of any specificfactsabout these e-mails, this does nothing to assist

this Court in evaluating whether such e-mails contain subject lines that a

person knows would be likely to mislead a recipient, acting reasonably

under the circumstances, about a material fact regarding the contents or

subject matter of the message. 17529.5(a)(3). Having failed to

articulatefacts to support his claims, Appellant has failed to meet his

burden to show a reasonable possibility that he can cure his pleading (as

he did below). See State ex rel. McCann, 191 Cal.App.4th at 906.14

Ultimately, both in this Court and below, Appellant has done

nothing more than assert an abstract right to amend, which is wholly

insufficient to satisfy his burden. Rosen, 193 Cal.App.4th at 458. The trial

court did not abuse its discretion, and, in fact, correctly concluded that

Appellant should not be given leave to further amend the FAC. Its ruling

should be affirmed.15

14The onlyfact Appellant appears willing to provide is the quantity

of the e-mails in question. But even this fact undermines Appellantsclaims because it is a moving target that has shifted at each stage of thislitigation. Compare RA 5 (original Complaint) at 8-9 (alleging total ofapproximately 355-370 e-mails) with AA, Item 5 (FAC) at 8-9(alleging total of approximately 375-390 e-mails). See also AOB at 14(now claiming receipt of 350-400 e-mails).

15In denying leave to amend, the trial court primarily found that

Appellant had not demonstrated how he could amend the complaint, butalso observed that he already had one opportunity to amend and did notrequest leave to amend in his opposition. AA, Item 4 (Order) at 2.Appellant takes issue with the latter two points, arguing they cannot formthe basis for the trial courts decision. See AOB at 12-13. But these pointsultimately are irrelevant because it is the trial courts ruling, notitsrationale, that is the subject of this appeal. Arei II Cases, 216 Cal.App.4th

(continued)


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3. Leave To Amend Would Be Futile.

In addition to failing to affirmatively satisfy his burden of proof to

justify another chance to amend the FAC, the little information Appellant

hasprovided to date regarding his CASA claims (i.e., beyond the FAC

itself) confirms that leave to amend would be futile. Accordingly, leave to

further amend the FAC should be denied. SeeTucker, 208 Cal.App.4th at

211 (Leave to amend should not be granted where amendment would be

futile. (citation omitted)).

First,no additional facts can salvage Appellants attempt to assert a

CASA cause of action based on a misleading header (as opposed to a

misrepresented header, which Appellant never has alleged). Indeed, the

misleading header claim is barred as a matter of law under Kleffman, as

discussed above in Section A.2.b. See Titus, 118 Cal.App.4th at 917

(Leave to amend is properly denied if the facts and nature of plaintiffs

claim are clear and under the substantive law, no liability exists .

(quotations and citations omitted)).

Second, at the demurrer hearing, Appellant revealed that none of theremaining e-mails he allegedly received from Foot Locker are materially

distinct from the White Sneakers or VIP e-mails for which he failed to

state a CASA claim. Indeed, although the remaining e-mails may

advertis[e] different things and have different subject lines, Appellant

conceded that Theyre similar. RT 12:9 (emphasis added); see also id.

12:12-14 (Most of the headers either say Foot Locker or Foot Locker

VIP.). The only logical conclusion is that Appellant already has put hisbest foot forward. To the extent Appellants White Sneakers e-mail and

(..continued)at 1012 (We are not bound by the trial courts stated reasons, if any,supporting its [demurrer] ruling; we review the ruling, not its rationale.(quotations and citations omitted)).


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VIP e-mail (first discussed at the demurrer hearing) are representative of

the remaining e-mails he allegedly receivedand Appellant has suggested

that they areno additional facts could cure the FACs deficiencies.

Indeed, Appellant has admitted that the White Sneakers e-mail is not

misleading, and he has declared that he knows he is not a VIP customer.

See RT 4:21-22. As discussed above, using an objective standard,

Appellant could not possibly have been misled by these subject lines if he

was acting reasonably under the circumstances. See 17529.5(a)(3).

Moreover, Appellant did not, because he cannot, show how a header that

states Foot Locker or Foot Locker VIP could be falsified,

misrepresented, or forged, given that it clearly identifies Foot Locker as

the sender. See 17529.5(a)(2); see also Balsam, 203 Cal.App.4th at 1101;

Rosolowski, __ Cal.App.4th __ [2014 WL 5465008, at *2].

In sum, the trial court properly denied leave to amend, and its ruling

should be upheld because any further amendment would be futile. Foot

Locker respectfully requests that the Judgment of Dismissal be affirmed.

IV.

CONCLUSION

For the foregoing reasons, the trial courts Judgment of Dismissal

should be affirmed in its entirety.



Michael J. StortzMatthew J. FedorMatthew J. Adler



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CERTIFICATION OF WORD COUNT

Pursuant to Rule of Court 8.204(c), the undersigned hereby certifies

that the text of the Brief of Respondent Foot Locker Retail, Inc. contains

9,961 words as counted by Microsoft Word.



Michael J. StortzMatthew J. Fedor

Matthew J. Adler


respondent footlocker brief

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