In Byars v. Hot Topic, Inc., No. EDCV221652JGBKKX, 2023 WL 2026994 C.D. Cal. Feb. 14, 2023), Judge Bernal granted Hot Topic’s motion to dismiss.  The Court detailed several reasons for granting the motion.  First, “[t]he FAC does not plausibly allege in good faith that $5 million is in controversy under CAFA.”  Id. at *5.  “[T]he FAC does not allege a single fact about Hot Topic’s business, other than aspects of its alleged “wiretapping” on its website, which are boilerplate allegations that Plaintiff’s Counsel asserts against virtually every business he sues under CIPA.”  Id.

Next, considering the first cause of action for violation of Penal Code section 631(a), the Court found that:

“Plaintiff does not allege a single fact that suggests the third-party “intercepted and used the data itself.” Williams, 2022 WL 17869275, at *3 (quoting Graham, 553 F. Supp. 3d at 832).  There is not a single fact that suggests the third-party vendor was deployed on the “entire website,” not just a page or two. See id. There are no specific factual allegations that any such recordation was more than a routine effort, rather than “data mining.” Id. There are no facts that the third party vendor “affirmatively engages with that data in any way other than to store it.” Id. In fact, even construing the pleadings in the light most favorable to Plaintiff, the clear inference is that the third-party vendor is engaging in precisely the sort of “routine” data recordation in Williams: the primary function of the vendor appears to be “stor[ing] transcripts of Defendant’s chat communications with ‘unsuspecting’ website visitors.” (FAC ¶ 12.)”  Id. at *10.

Finally, deciding the second cause of action for violation of Penal Code section 632.7, the Court held that “[t]he unambiguous meaning of the statute is thus that it only applies to communications involving two telephones. Plaintiff’s allegations all relate to text-based web communications regarding a chat feature on a website, which virtually by definition cannot involve two telephones.”  Id. at *10.