In Ruiz v. Gap, Inc. Ruiz v. Gap, Inc. 2010 WL 2170993 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit found speculative Plaintiff’s claims of fear of future identity theft based on theft of a laptop computer that contained the Plaintiff’s social security number. The Court of Appeals explained, in an unpublished opinion, that:
The district court did not err in granting summary judgment on Ruiz’s state law negligence claim. The elements of a negligence cause of action under California law are (1) the existence of a duty to exercise due care, (2) breach of that duty, (3) causation, and (4) damages. Paz v. California, 22 Cal.4th 550, 93 Cal.Rptr.2d 703, 994 P.2d 975, 980-81 (Cal.2001). ¶ The district court concluded that Ruiz had failed to establish sufficient appreciable, nonspeculative, present harm to sustain a negligence cause of action under California law. California has long held that “[i]t is fundamental that a negligent act is not actionable unless it results in injury to another.” Fields v. Napa Milling Co., 164 Cal.App.2d 442, 330 P.2d 459, 462 (Cal.Ct.App.1958). California also holds that “[n]ominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred.” Id. In addition, in different contexts, the California courts have indicated that the mere threat of future harm is insufficient. See Jordache Enters., Inc. v. Brobeck, Phleger & Harrison et al., 18 Cal.4th 739, 76 Cal.Rptr.2d 749, 958 P.2d 1062, 1065 (Cal.1998) (“[N]ominal damages, speculative harm, and the mere threat of future harm are not actual injury.”); Adams v. Paul, 11 Cal.4th 583, 46 Cal.Rptr.2d 594, 904 P.2d 1205, 1209 (Cal.1995) (same). ¶ California courts have not considered whether time and money spent on credit monitoring as the result of the theft of personal information are damages sufficient to support a negligence claim. We do not need to reach that question here. Even assuming, without deciding, that such damages are cognizable under California law, Ruiz failed to establish a genuine issue of material fact on whether he suffered damages because he offered no evidence on the amount of time and money he spent on the credit monitoring, or that Gap’s offer would not fully recompense him.