Footlocker Appeal Appendix

8/10/2019 Footlocker Appeal Appendix

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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.

RESPONDENT FOOT LOCKER RETAIL, INC.S

APPENDIX

Appeal From Judgment Following Order Sustaining

Demurrer in the Superior Court for the

County of San Francisco

Honorable 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]

DRINKER BIDDLE & REATH LLP

50 Fremont Street, 20th Floor

San Francisco, California 94105-2235

Telephone: (415) 591-7500

Facsimile: (415) 591-7510

MATTHEW J. FEDOR (pro hac vice)

[email protected] BIDDLE & REATH LLP

600 Campus Drive

Florham Park, New Jersey 07932-1047

Attorneys for Respondent

FOOT LOCKER RETAIL, INC.


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INDEX

Exhibit Document Date Page No.

A Complaint for Damages

and Declaratory Relief

June 25, 2013 2

B United States District Court

(N.D. Cal.) Order Granting

Motion to Remand

October 1, 2013 11

C Memorandum of Points and

Authorities in Support of

Foot Locker Retail Incs

Demurrer to Complaint

November 4,

2013

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D Memorandum of Points and

Authorities in Support of

1INK.coms Demurrer toComplaint

November 14,

2013

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EXHIBIT B

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EXHIBIT C

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOOT LOCKER RETAIL INC.S DEMURRER

I.

INTRODUCTION

Plaintiff Timothy DeWitt is a California attorney who alleges that he received hundreds of

separate emails from Defendant Foot Locker Retail, Inc. (Foot Locker) and Defendant

1INK.com, which he claims were false, misleading, and deceptive in violation of Business and

Professions Code Section 17529.5, Californias Anti-Spam Law. Plaintiff seeks over $325,000

in damages, yet he has alleged no specifics whatsoever regarding the emails, and the Complaint

lacks even the most basic information regarding Plaintiffs claims.

Accordingly, Plaintiffs claims should be dismissed for failure to plead his Anti-Spam

Law claims which courts repeatedly have held are grounded in fraud with the requisite level

of particularity. Plaintiffs Complaint utterly fails to satisfy this heightened pleading standard.

Plaintiff also has failed to allege any facts suggesting a relationship or any other

connection between Defendants Foot Locker and 1INK.com. As such, there is simply no basis to

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

is subject to demurrer on that ground.

This Court should sustain Foot Lockers Demurrer to the Complaint. Should Plaintiff be

granted leave to amend to plead his Anti-Spam Law claims with particularity, Foot Locker will

request that Defendant 1INK.com be severed from this action unless Plaintiff can somehow also

plead facts that demonstrate a basis to support joinder.

II.

BACKGROUND

Plaintiff alleges that he received approximately 325 to 335 unsolicited emails

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

which he claims were false, misleading, and deceptive in violation of the Anti-Spam Law.

Compl. 6, 8. Plaintiff also claims he received 30 to 35 improper emails from Defendant

1INK.com, which advertised its commercial brand, products, or services. Id. 9.

Indeed, this entire case revolves around emails. But none of the allegedly unlawful emails

that Plaintiff says he received are attached to the Complaint, and the Complaint lacks even the

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most basic details about the emails. For example, Plaintiff does not say whenany of the emails

were received. Plaintiff does not identify the email address(es) wherethe emails supposedly were

sent. He does not describe whatthe content of any emails say. He does not identify who

supposedly sent each email. And he does not explain howthe email header information is

falsified, misrepresented, or forged or howthe email 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 the Anti-Spam Law. SeeBus. & Prof. Code 17529.5(a)(2)-(3).

Plaintiff also fails to distinguish between the emails he purportedly received from Foot

Locker and those received from 1INK.com. Instead, he simply lumps everything together and

broadly claims, in the alternative, that the emails contained untraceable orotherwise

misleading sender information; orfalsified, misleading, orforged header orsubject line

information; orwere presented to make it appear as though Defendant advertisers were the

actual senders when the emails in fact were sent by third-party spammers. Compl. 6 (emphasis

added). In fact, the only additional information provided concerning the purported Foot Locker-

related emails is Plaintiffs allegation that a large number contained generic header

information, such as Foot Locker VIP, or used a domain including e.footlocker.com, which

he baldly concludes are somehow misleading and deceptive. Compl. 7.

Despite these clear pleading deficiencies, Plaintiff purports to assert two causes of action

for violation of, and declaratory relief under, the Anti-Spam Law. Compl. 1118. And he

seeks over $325,000 in damages in addition to declaratory and injunctive relief. Prayer for Relief

AC.

III.

ARGUMENT

A.

Plaintiffs Claims Should Be Dismissed For Failure To Plead Them With SufficientParticularity.

Plaintiffs unsupported, vague, and conclusory allegations are insufficient as a matter of

law, and should be dismissed. See Code Civ. Proc., 430.10(e) (demurrer proper where

complaint fails to state facts sufficient to constitute a cause of action). Claims under the Anti-

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Spam Law are grounded in fraud. See, e.g.,Hypertouch v. Azoogle.com, Inc.(9th Cir. 2010)

386 Fed. Appx. 701, 702 (We agree with the district court that the [Anti-Spam Law] causes of

action as pled sound in fraud.);Asis Internet Servs. v. Subscriberbase Inc. (N.D. Cal. Dec. 4,

2009) No. 09-3503, 2009 WL 4723338, at *3 (Anti-Spam Law claims were sufficiently grounded

in fraud where plaintiff alleged defendants intended to mislead the recipients of their emails).

Indeed, there is no question that Plaintiffs claims are grounded in fraud inasmuch as he

specifically alleges that the emails contained information that is false, misrepresented,

misleading, or otherwise deceptive. Compl. 10. And the Anti-Spam Law itself expressly

requires Plaintiff to prove that the emails 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

Bus. & Prof. Code 17529.5(a).

Accordingly, asserted violations of the Anti-Spam Law must be pled with the particularity

required for fraud-based claims. See Moreland v. AD Optimizers, LLC(N.D. Cal. July 18, 2013)

No. 5:13-CV-00216-PSG, 2013 WL 3815663, at *2 (claims alleging that email headers

contained false and misleading information in violation of Anti-Spam Law were grounded in

fraud and must be pled with particularity);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. This particularity requirement necessitates pleadingfactswhich

show how, when, where, to whom, and by what means the representations were tendered.

Robinson, supra, at 993 (quotations omitted).

InMoreland, for example, the court recently dismissed Anti-Spam Law claims for failure

to plead with particularity. See 2013 WL 3815663 at *3. The plaintiff inMorelandalleged that

he received over 1,300 spam emails that contained false and misleading information in the

email 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 an example

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of) each type of allegedly false or misleading advertisement, thenumber of those advertisements [or] the date ranges of the emails ineach category. He did not provide a single example email, doesnot identify how many of the 1,300 emails fall into each of hisseven categories of prohibited tactics, and fails to identify thedate ranges of the emails in each category. Nor has he alleged

the domain namesfor the landing sites to which any of the emailsat issue redirect, who those sites were registered to, any of theallegedly unlawful subject lines, the sender of any of the emails,or the dates on which each email was sent.

Id.at *2 (emphasis added).

Plaintiffs bare allegations here similarly fail to satisfy the particularity requirement.

Indeed, Plaintiff has provided no specifics whatsoeverregarding the emails, much less the

required who, what, when, where, and how of the alleged fraud. Robinson, supra, 34 Cal.4th at

993. Like inMoreland, Plaintiff did not include a single example email with his Complaint. He

does not allege the dates whenhe received any of the emails. He does not identify the email

address(es) wherethe emails supposedly were sent. He does not describe whatthe content of the

emails say. He does not say whosupposedly sent each email. And he does not explain howthe

email header information is falsified, misrepresented, or forged or howany email 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 the Anti-Spam Law. SeeBus. & Prof. Code

17529.5(a).

The lack of particularity of Plaintiffs 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 emails received from both parties

contained untraceable orotherwise misleading sender information; orfalsified, misleading,

orforged header orsubject line information; orwere presented to make it appear as though

Defendant advertisers were the actual senders when the emails in fact were sent by third-party

spammers. Compl. 6 (emphasis added). Plaintiff did not even attempt to delineate which

Defendant advertised in which emails. Indeed, the only information Plaintiff separately alleged

concerning the 325 to 335 purported Foot Locker-related emails is that a large number

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

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allege the existence of any relationship between Foot Locker and 1INK.com. Nor does he allege,

for example, that one defendant hired the other to advertise products by email, that the defendants

jointly advertise their products by email pursuant to a contract or other business relationship, or

that the defendants were working in concert.

The permissive joinder rule requires more. 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).

Plaintiffs Complaint here does not support any of the above factors, much less all three.

Indeed, there is no link between the factual bases for Plaintiffs claims against Foot Locker and

his claims against 1INK.com. Plaintiff does not assert against Foot Locker and 1INK.com a right

to relief jointly, severally, or in the alternative. In other words, Plaintiff does not claim that Foot

Locker is responsible for the 1INK.com-related emails, or vice-versa. In fact, as noted, Plaintiff

does not allege any relationship whatsoever between Foot Locker and 1INK.com. Rather,

Plaintiffs claims against 1INK.com are entirely independent of his claims against Foot Locker,

and whether Plaintiff can prevail against Foot Locker has no bearing or impact on whether

Plaintiff can prevail against 1INK.com.

Nor do Plaintiffs claims against Foot Locker and 1INK.com arise out of the same series

of transactions or occurrences. Each alleged email was a separate and unrelated transaction

allegedly involving either Foot Locker or 1INK.com, but not both. Compl. 8, 9. Thus, there is

no connection whatsoever between the factual bases for Plaintiffs claims against Foot Locker

and his claims against 1INK.com. See Moe v. Anderson(2012) 207 Cal.App.4th 826, 833

(holding that the two plaintiffs sexual assault claims against the same defendant doctor occurring

at separate and distinct times were not properly joined because they did not arise out of the same

series of transactions or occurrences).

Plaintiffs claims against Foot Locker and 1INK.com likewise do not present common

questions of law or fact. As noted, each email was separate, distinct and unrelated, and allegedly

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was sent by eitherFoot Locker or1INK.com. The evidence Plaintiff will rely on for his claims

against Foot Locker (i.e., the emails) will not overlap with the evidence Plaintiff relies on for his

claims against 1INK.com. Each Defendants defenses will involve separate proofs that are

unique to each particular Defendant. And there are no common questions of law because whether

any emails allegedly sent to Plaintiff by Foot Locker violated the Anti-Spam Law has no bearing

whatsoever on whether emails sent to Plaintiff by 1INK.com violated the Anti-Spam Law. See

Grayson v. K-Mart Corp. (N.D. Ga. 1994) 849 F. Supp. 785, 789 (no common question of law or

fact where each demotion decision affecting individual plaintiffs was a discrete and wholly

separate act).

To be sure, Plaintiff has asserted the same general typeof claim against both Foot Locker

and1INK.com, i.e., he alleges each company sent him emails that violate the Anti-Spam Law.

But this clearly is insufficient to support joinder of Foot Locker and 1INK.com as Defendants in a

single action absent some relationship between the underlying transactions, which is non-existent.

Ibid.(It is, of course, true that plaintiffs have alleged against defendant claims based upon the

same general theories of law, but this is not sufficient to satisfy the permissive joinder rule).

The result is that 1INK.com was improperly joined. See PPV Connection v. Melendez

(D.P.R. 2010) 679 F. Supp. 2d 254, 258 (defendants who intercepted same live boxing event on

same day were improperly joined because they had not engaged in same transaction, were not

alleged to have acted in concert or to have any relationship to each other, and were likely to assert

different defenses and be confronted with different evidence);Moe, supra, 207 Cal.App.4th at

833 (two plaintiffs sexual assault claims against same defendant occurring at separate and

distinct times were not properly joined). Accordingly, the Court should sustain Foot Lockers

Demurrer. Should Plaintiff be granted leave to amend to plead his Anti-Spam Law claims with

particularity, Foot Locker will request that Defendant 1INK.com be severed from this action

unless Plaintiff can somehow also plead facts that demonstrate a basis to support joinder. Cf. On

The Cheap, LLC v. Does 1-5011(N.D. Cal. 2011) 280 F.R.D. 500, 502 (noting courts may sever

improperly joined parties at any time).

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Documents

Footlocker Appeal Appendix