Campbell et al v. Facebook Inc.

Filing 38

STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byFacebook Inc.. (Related document(s) 35 ) (Jessen, Joshua) (Filed on 9/22/2014)

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
JESSICA S. OU, SBN 280534
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISON

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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH
CONSOLIDATED CLASS ACTION
DEFENDANT FACEBOOK, INC.’S
STATEMENT OF RECENT DECISION
HEARING:
Date: October 1, 2014
Time: 9:00 a.m.
Place: Courtroom 3, 3rd Floor
The Honorable Phyllis J. Hamilton

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S STATEMENT OF RECENT DECISION
Case No. C 13-05996 PJH

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Pursuant to Civil Local Rule 7-3(d)(2), Defendant Facebook, Inc. respectfully submits this

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Statement of Recent Decision to bring to the Court’s attention the Northern District of California’s

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recent decision in Sunbelt Rentals, Inc. v. Victor, 4:13-cv-04240-SBA, 2014 WL 4274313 (N.D. Cal.

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Aug. 28, 2014), a true and correct copy of which is attached hereto as Exhibit A. The decision was

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filed the same day Facebook filed its Reply in Support of its Motion to Dismiss Plaintiffs’

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Consolidated Amended Complaint on August 28, 2014 (see Dkt. No. 35), and Facebook understands

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that the decision was published by Westlaw in early September. The decision is therefore appropriate

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for consideration by the Court. See Civil L.R. 7-3(d)(2) (“Before the noticed hearing date, counsel

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may bring to the Court’s attention a relevant judicial opinion published after the date the opposition

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or reply was filed by filing and serving a Statement of Recent Decision, containing a citation to and

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providing a copy of the new opinion—without argument.”). The Sunbelt Rentals decision is relevant

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to Plaintiffs’ claim for alleged violation of the Wiretap Act (18 U.S.C. § 2511), specifically relating

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to the Act’s requirement that a communication “must be acquired during transmission, not while it is

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in electronic storage.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878-79 (9th Cir. 2002).

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Dated: September 22, 2014

Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:

/s/
Joshua A. Jessen

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Attorneys for Defendant FACEBOOK, INC.

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Gibson, Dunn &
Crutcher LLP

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DEFENDANT FACEBOOK, INC.’S STATEMENT OF RECENT DECISION
Case No. C 13-05996 PJH

Exhibit A

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Only the Westlaw citation is currently available.
United States District Court,
Oakland Division.
Oakland Division
Sunbelt Rentals, Inc., Plaintiff,
v.
Santiago Victor, Defendant.

ter and being fully informed, the Court hereby
GRANTS the motion and dismisses Victor's counterclaims, with leave to amend. The Court, in its
discretion, finds this matter suitable for resolution
without oral argument. Fed.R.Civ.P. 78(b); N.D.
Cal. Civ. L.R. 7–1(b).
I. BACKGROUND
A. RELEVANT FACTS

Case No: C 13–4240 SBA
4:13–cv–04240Signed August 28, 2014
Joseph C. Wilson, Michelle Therese Duval, Richard
James Curiale, Curiale Wilson LLP, Allison Marie
Dibley, Esq., Joseph C. Wilson, V, Nossaman LLP,
San Francisco, CA, Patricia Jeanne Hill, Yash B.
Dave, Smith, Gambrell & Russell, LLP, Jacksonville, FL, Veronica Meryl Gray, Nossaman LLP,
Irvine, CA, for Plaintiff.
Beth Ann Kahn, Kevin M. Pollack, Kurt Alan
Dreibholz, Morris Polich Purdy, Los Angeles, CA,
for Defendant.
ORDER GRANTING PLAINTIFF'S MOTION
TO DISMISS DEFENDANT'S COUNTERCLAIMS
Dkt. 39
SAUNDRA BROWN ARMSTRONG, United
States District Judge
*1 Sunbelt Rentals, Inc. (“Plaintiff” or
“Sunbelt”) filed the instant action against its former
employee, Santiago Victor (“Defendant” or
“Victor”), alleging that he misappropriated trade
secrets upon his termination. Victor has filed five
counterclaims against Sunbelt, accusing it, inter
alia, of violating the federal Wiretap Act and the
Stored Communications Act (“SCA”) by reviewing
his text messages on the iPhone which Sunbelt had
previously issued to him. The parties are presently
before the Court on Plaintiff's Motion to Dismiss
Defendants Counterclaims. Having read and considered the papers filed in connection with this mat-

During the relevant time period, Victor worked
as an outside sales representative for Sunbelt, an
equipment rental company. Countercl. ¶ 11, Dkt.
34. In August 2013, Victor gave his two-week notice to Sunbelt, stating that he had taken a job with
one of its competitors—Ahern Rentals (“Ahern”).
Id. ¶ 16. Upon learning of Victor's intent to leave
the company, Sunbelt immediately dismissed him.
Id.
During his time with Sunbelt, Victor was assigned a Sunbelt-owned iPhone (“Sunbelt iPhone”)
and a Sunbelt-owned iPad for both work and personal purposes. Id. ¶¶ 12–14. Thereafter, Victor
“created and paid for a personal ‘Apple account’
that was linked to both devices.” Id. ¶ 15. Victor returned the devices to Sunbelt after his separation.
Id. ¶¶ 16, 18, 20.
Victor's new employer, Ahern, provided him a
new iPhone (“Ahern iPhone”). Id. ¶ 19–20. At
some point thereafter, Victor registered or linked
his Ahern iPhone to the same personal Apple account he had previously used while at Sunbelt. Id. ¶
19. This process “synced” Victor's Ahern iPhone
with his personal Apple account. Id.
Several weeks later, when he received a new
iPad from Ahern (“Ahern iPad”), Victor linked the
new iPad to his personal Apple account. Id. ¶ 20. In
the process of registering the Ahern iPad, Victor
discovered the telephone number associated with
the Sunbelt iPhone was still linked to his personal
Apple account. Id. Because Victor had failed to un-

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link the Sunbelt iPhone from his account, his
“private electronic data and electronic messages,”
including text messages sent to and from his Ahern
iPhone, also were transmitted to the Sunbelt iPhone
which he had returned to Sunbelt. Id. ¶ 20, 21. Victor then deleted the Sunbelt number from his account “to ensure that his new Ahern issued Apple
products were not in any way linked to Sunbelt.”
Id.
Victor claims that after his departure, Sunbelt
“began actively investigating Victor's postemployment acts, conduct, and communications.”
Id. ¶ 21. In the course of such investigation, Sunbelt allegedly “invaded Victor's privacy rights by
accessing, intercepting, monitoring, reviewing,
storing and using Victor's post-employment private
electronic data and electronic communications
(including but not limited to text messages sent and
received from Victor's Ahern, Rentals Inc. issued
iPhone) without authority, permission, or consent.”
Id. (emphasis added). Victor further accuses Sunbelt of “ intentionally accessing Victor's private
electronic communications and data, without authorization, from facilities through which Victor's
electronic communications were provided and
stored (i.e., Victor's cellular phone provider's network which stores Victor's electronic communications, and or Apple's cloud based network where
Victor's electronic communication pertaining to his
Apple Account are processed and stored) and where
such services and communications were restricted
to access by Victor, which Sunbelt obtained
through improper means.” Id. ¶ 23 (emphasis added). No particular facts are alleged to support
these assertions.
B. PROCEDURAL HISTORY
*2 On September 12, 2013, Sunbelt filed a
complaint against Victor in this Court alleging four
state law causes of action: (1) breach of contract;
(2) misappropriation of trade secrets; (3) unfair
competition; and (4) breach of duty of loyalty. Dkt.
1. Victor then filed an Answer, and later amended
an Answer and Counterclaim. The gist of the Coun-

terclaim is that Sunbelt improperly read the text
messages that were inadvertently transmitted to his
Sunbelt iPhone. He alleges claims for violations of:
(1) the Wiretap Act; (2) the SCA; (3) California
Penal Code § 502 et seq.; (4) California Penal Code
§ 630 et seq.; and (5) his right to privacy. See
Countercl. ¶ 24. Each of these claims is based on
the same set of facts—Sunbelt's purported interception, acquisition and use of Victor's electronic communications (i.e., text messages) sent to and from
his Ahern iPhone. Sunbelt now moves to dismiss all
counterclaims. This matter has been fully briefed
and is ripe for adjudication.
II. LEGAL STANDARD
Pleadings in federal court actions are governed
by Federal Rule of Civil Procedure 8(a)(2), which
requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Rule 12(b)(6) “tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732 (9th
Cir.2001). A complaint may be dismissed under
Rule 12(b)(6) for either failure to state a cognizable
legal theory or insufficient facts to support a cognizable legal theory. Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008).
“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322,
127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The court
is to “accept all factual allegations in the complaint
as true and construe the pleadings in the light most
favorable to the nonmoving party.” Outdoor Media
Group, Inc. v. City of Beaumont, 506 F.3d 895,
899–900 (9th Cir.2007).
To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). The complaint
must afford the defendants with “fair notice” of the
claims against them, and the grounds upon which
the claims are based. Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678,
129 S.Ct. 1937. When a complaint or claim is dismissed, “[l]eave to amend should be granted unless
the district court determines that the pleading could
not possibly be cured by the allegation of other
facts.” Knappenberger v. City of Phoenix, 566 F.3d
936, 942 (9th Cir.2009).
III. DISCUSSION
A. WIRETAP ACT
The Wiretap Act imposes civil liability against
any person who “ intentionally intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept, any wire, oral,
or electronic communication.” 18 U.S.C §§
2511(1)(a) (emphasis added); id. § 2520(a). The
Act defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or
oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. §
2510(4). “Such acquisition occurs ‘when the contents of a wire communication are captured or redirected in any way.’ ” Noel v. Hall, 568 F.3d 743,
749 (9th Cir.2009). The inception must be intentional, as opposed to inadvertent. See Sanders v.
Robert Bosch Corp., 38 F.3d 736, 742–43 (4th
Cir.1994).
Here, Victor has failed to allege facts sufficient
to establish that Sunbelt “intentionally intercepted”
any of his text messages. By Victor's own account,
the text messages appeared on his Sunbelt iPhone
as a result of Victor's act of syncing his new iPhone
to his Apple account without first un-linking his
Sunbelt iPhone. Countercl. ¶¶ 19, 20. In other
words, Sunbelt did not intentionally capture or re-

direct Victor's text messages to the Sunbelt
iPhone—the transmission of those messages was
entirely Victor's doing. Given these circumstances,
the requisite intentional conduct is lacking.
Sanders, 38 F.3d at 742–43; Shubert v. Metrophone, Inc., 898 F.2d 401, 405 (3rd Cir.1990)
(noting that Congress specifically intended that
“inadvertent interceptions are not crimes under [the
Wiretap Act]”).
*3 Nor has Victor alleged facts sufficient to establish that Sunbelt acted to “intercept” the text
messages or any other electronic communications.
The Ninth Circuit applies a “narrow definition of
‘intercept.’ ” Konop v. Hawaiian Airlines, Inc., 302
F.3d 868, 878 (9th Cir.2002). For a communication
to be intercepted, “it must be acquired during transmission, not while it is in electronic storage.” Id.
Though Victor vaguely alleges that Sunbelt intercepted his electronic communications, i.e., his text
messages, he provides no facts to support this othFN1
erwise conclusory assertion.
If anything, the
pleadings suggest that Sunbelt read Victor's text
messages after they were sent and received on the
Sunbelt iPhone, which is insufficient to demonstrate intentional interception under the Wiretap
Act. See NovelPoster v. Javitch Canfield Group,
No. C 13–5186 WHO, 2014 WL 3845148, *10
(N.D.Cal. Aug. 14, 2014) (reading emails that have
already been received in an email account's inbox
does not constitute interception under the Wiretap
Act because the transmission had already occurred).
FN1. Victor's Counterclaim repeatedly
makes vague and formulaic references to
“private and electronic communications,”
but only specifically identifies “text messages” as having been allegedly intercepted. See Countercl. ¶ 22. Victor never specifies how the alleged interception transpired.
Although it is clear that Victor's Wiretap Act
claim must be dismissed, what is less clear is
whether leave to amend should be granted. Given
the almost instantaneous transmission of text mes-

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sages, the window during which an interception
may occur is exceedingly narrow. NovelPoster,
2014 WL 3845148, *10 (citing United States v.
Steiger, 318 F.3d 1039, 1050 (11th Cir.2003)).
Thus, “unless some type of automatic routing software is used” to divert the text message, interception of [a text message] within the prohibition of
the Wiretap Act is virtually impossible.” Id.
(internal quotations and citation omitted). Given
these constraints, it is doubtful that Victor will be
able to allege facts, consistent with Federal Rule of
Civil Procedure 11, to state a claim for violation of
the Wiretap Act. Nonetheless, the Court will afford
Victor an opportunity to amend this claim and
therefore DISMISSES his claim under the Wiretap
FN2
Act, with leave to amend.
FN2. Sunbelt also contends that Victor has
failed to allege any facts showing that it intercepted his text messages “through the
use of any ... device.” 18 U.S.C. § 2510(4)
(emphasis added). Since it is clear that the
Counterclaim fails to allege intentional interception, the Court need not reach that issue at this juncture.
B. STORED COMMUNICATIONS ACT
The SCA creates “a cause of action against
anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire
or electronic communication while it is in electronic storage.' ” Theofel v. Farey–Jones, 359 F.3d
1066, 1072 (9th Cir.2004) (quoting 18 U.S.C. §§
2701(a)(1), 2707(a)). “[E]lectronic storage” is
defined as either “temporary, intermediate storage
... incidental to ... electronic transmission,” or
“storage ... for purposes of backup protection.” 28
U.S.C. § 2510(17).
According to Victor, Sunbelt violated the SCA
by virtue of having,
Intentionally accessed, without authorization,
facilities through which Victor's electronic

communications were provided and stored (i.e.,
Victor's cellular phone provider's network
which stores Victor's electronic communications, and or Apple's cloud based network
where Victor's electronic communication pertaining to his Apple Account are processed and
stored) and where such services and communications were restricted to access by Victor,
which Sunbelt obtained through improper
means.
Countercl. ¶ 45. No facts are presented,
however, to support the conclusory assertion that
Sunbelt accessed Victor's text messages through his
cellular telephone provider or Apple's network.
Moreover, in his opposition, Victor contradicts
himself by stating that the text messages allegedly
accessed by Sunbelt “were not accessed through,
nor stored on a website.” Opp'n at 4 (emphasis added). To the extent that Victor is claiming that Sunbelt accessed his text messages by reviewing the
messages on his Sunbelt iPhone—as he does elsewhere in his Counterclaim, such conduct does not
violate the SCA. See Garcia v. City of Laredo, Tex.,
702 F.3d 788, 793 (5th Cir.2012) (holding that text
messages and pictures stored on a cellular telephone do not constitute “electronic storage” for
purposes of the SCA). This claim is DISMISSED
with leave to amend.
C. CALIFORNIA PENAL CODE § 502
*4 Section 502 of the California Penal Code
prohibits unauthorized access to computers, computer systems, and computer networks, and
provides for a civil remedy in the form of compensatory damages, injunctive relief, and other equitable
relief. Cal.Penal Code § 502. Section 502 is an antihacking statute intended to prohibit the unauthorized use of any computer system for improper or illegitimate purpose. Yee v. Lin, No. C 12–02474
WHA, 2012 WL 4343778, *2 (N.D.Cal. Sept. 20,
2012).
Victor alleges that Sunbelt violated subsections
(c)(1), (2), (3), (4), (6), and (7) of Section 502,
which provides that a person is liable if he:

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(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A)
devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully
control or obtain money, property, or data.
(2) Knowingly accesses and without permission takes, copies, or makes use of any data
from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3) Knowingly and without permission uses or
causes to be used computer services.
(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys
any data, computer software, or computer programs which reside or exist internal or external
to a computer, computer system, or computer
network.
...
(6) Knowingly and without permission
provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7) Knowingly and without permission accesses or causes to be accessed any computer,
computer system, or computer network.”
Id. § 502(c); Countercl. ¶ 54. For purposes of
Section 502, parties act “without permission” when
they “circumvent[ ] technical or code-based barriers
in place to restrict or bar a user's access.” Facebook, Inc. v. Power Ventures, Inc., 844 F.Supp.2d
1025, 1036 (N.D.Cal.2012).
In his third Counterclaim, Victor alleges as follows:

On information and belief, Sunbelt violated
California Penal Code section 502 when it improperly began accessing, intercepting, monitoring, reviewing and using Victor's postemployment private electronic data and electronic communications without Victor's knowledge, authorization or consent. On information
and belief, Sunbelt additionally, or in the alternative, violated of Penal Code § 502 by intentionally accessing, without authorization,
facilities through which Victor's electronic
communications were provided and stored (i.e.,
Victor's cellular phone provider's network
which stores Victor's electronic communications, and or Apple's cloud based network
where Victor's electronic communication pertaining to his Apple Account are processed and
stored) and where such services and communications were restricted to access by Victor,
which Sunbelt obtained through improper
means.
Countercl. ¶ 56 (emphasis added). These factbarren and vague allegations are precisely the type
of “threadbare recitals” proscribed by Twombly and
Iqbal. Moreover, to the extent that Victor is claiming that Sunbelt accessed his unspecified “private
electronic data and electronic communications”
through the Apple account or his cellular telephone
provider's computer network, such a claim fails on
the ground that no facts are alleged showing that
Sunbelt did so by circumventing technical or codebased barriers intended to restrict such access.
Facebook, 844 F.Supp.2d at 1036. To the contrary,
Victor simply avers that Sunbelt reviewed his text
messages that he caused, albeit inadvertently, to be
sent to the Sunbelt iPhone. The Court therefore
concludes that Victor has failed to state a claim under Section 502 and DISMISSES said claim with
leave to amend.
D. CALIFORNIA PENAL CODE § 630
*5 The California Invasion of Privacy Act
(“CIPA”) is intended to prevent privacy invasions
facilitated by modern technology and devices.

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Cal.Penal Code § 630. “The analysis for a violation
of CIPA is the same as that under the federal
Wiretap Act.” NovelPoster, 2014 WL 3845148, *12
(granting judgment on pleadings on CIPA claim for
same reasons underlying the dismissal of the
plaintiff's Wiretap Act claim, i.e., the lack of intentional interception). As discussed, Victor has failed
to plausibly allege a violation of the Wiretap Act; a
fortiori, he is also unable to allege a violation of
CIPA. This claim is DISMISSED with leave to
amend.
E. INVASION OF PRIVACY
California recognizes four categories of the tort
of invasion of privacy: (1) intrusion upon seclusion;
(2) public disclosure of private facts; (3) false light
in the public eye; and (4) appropriation of name or
likeness. Shulman v. Group W Prods., Inc., 18
Cal.4th 200, 214 n. 4, 74 Cal.Rptr.2d 843, 955 P.2d
469 (1998). Victor fails to indicate which type of
invasion of privacy claim he is alleging. Nonetheless, based on the sparse allegations presented, it
appears that he is attempting to state a claim for intrusion upon seclusion.
“A privacy violation based on the common law
tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion
must occur in a manner highly offensive to a reasonable person.” Hernandez v. Hillsides, Inc., 47
Cal.4th 272, 285, 97 Cal.Rptr.3d 274, 211 P.3d
1063 (2009). “The tort is proven only if the plaintiff
had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data
source.” Shulman v. Grp. W Prods., Inc., 18 Cal.4th
200, 232, 74 Cal.Rptr.2d 843, 955 P.2d 469 (1998).
A plaintiff pursuing an invasion of privacy action
must have conducted himself or herself in a manner
consistent with an actual expectation of privacy,
i.e., he or she must not have engaged in conduct
which manifests a voluntary consent to the invasive
actions of defendant. Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal.4th 1, 26, 26 Cal.Rptr.2d 834, 865

P.2d 633 (1994).
Victor contends that, as a matter of law, an employee has a reasonable expectation of privacy with
respect to text messages contained on employerowned mobile telephones. The decisional authorities cited by Victor, however, are inapposite. In City
of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619,
177 L.Ed.2d 216 (2010), a police officer was issued
a pager by his police department which was subject
to a limit on the number of characters that could be
sent and received each month. Id. at 750, 130 S.Ct.
2619. After becoming concerned that the officer
was repeatedly exceeding his character limit, the
police department obtained transcripts of the text
messages from the wireless carrier to ascertain
whether the texts were work-related or personal. Id.
at 750–51, 130 S.Ct. 2619. After finding that most
of the text messages were not work-related, the police department took disciplinary action against the
officer. Id. at 753, 130 S.Ct. 2619. The police officer then brought an action under 42 U.S.C. § 1983
against the city, police department and police chief,
alleging that the police department's review of his
text messages violated the Fourth Amendment.
In the addressing the plaintiff's Fourth Amendment claim, the United States Supreme Court assumed, without deciding, that the plaintiff had a
reasonable expectation of privacy in text messages
sent to him on an employer-provided pager;
however, the Court ultimately upheld the police department's review of those messages as reasonable
under the Fourth Amendment. Id. at 760, 130 S.Ct.
2619. Despite Victor's suggestion to the contrary,
the Supreme Court did not hold that an employee
automatically has an expectation of privacy in electronic messages stored on a device provided by his
employer. Quon also is distinguishable on its facts.
Unlike the police officer in Quon, Victor was no
longer an employee of the company that owned the
electronic device at issue at the time the invasion of
privacy allegedly occurred. Moreover, unlike the
police department, which requested transcripts of
the text messages from the wireless carrier, Sunbelt

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is not alleged to have affirmatively undertaken any
action to obtain and review the text messages or
any other electronic data. Rather, the electronic
communications appeared on Sunbelt's iPhone because of actions taken by Victor.
*6 Victor's citation to United States v. Finley,
477 F.3d 250 (5th Cir.2007) fares no better. In that
case, a criminal defendant challenged the denial of
his motion to suppress text messages and call records which law enforcement officials had obtained
through a warrantless search of his employer-issued
cell phone. In addressing the threshold issue of
whether the defendant had standing to raise a
Fourth Amendment challenge, the Fifth Circuit held
that the mere fact that the employer owned the
phone and had access to its contents did not ipso
facto demonstrate that defendant correspondingly
had no expectation of privacy in his call records
and text messages. Id. at 259. In reaching its decision, the court specifically noted that the defendant had undertaken precautions to maintain the privacy of data stored on his phone and that he “had a
right to exclude others from using the phone.” Id.
Unlike the defendant in Finley, Victor was no
longer an employee of the company which owned
the cell phone to which the subject text messages
had been sent. In addition, Victor had no right to
exclude others from accessing the Sunbelt
iPhone—which he did not own or possess and no
longer had any right to access. Moreover, rather
than undertake precautions to maintain the privacy
of his text messages, Victor did just the opposite by
failing to unlink his Sunbelt iPhone from his Apple
account, which, in turn, facilitated the transmission
of those messages to an iPhone exclusively owned,
controlled and possessed by his former employer.
Victor's privacy claim also fails on the ground
that he has failed to show an intrusion into a “place,
conversation, or matter as to which the plaintiff has
a reasonable expectation of privacy.” Hernandez,
47 Cal.4th at 285, 97 Cal.Rptr.3d 274, 211 P.3d
1063. As noted, Victor cannot legitimately claim an
expectation of privacy in a “place,” i.e., the Sunbelt

iPhone, which belongs to his former employer and
to which he has no right to access. Nor can Victor
claim a reasonable expectation of privacy with respect to his text messages, in general. The pleadings do not identify the contents of any particular
text messages, and instead, refer generally to
“private electronic data and electronic communications.” Countercl. ¶ 79. This and other courts have
concluded that there is no “legally protected privacy interest and reasonable expectation of privacy” in electronic messages, “in general.” In re
Yahoo Mail Litig., ––– F.Supp.2d ––––, ––––,2014
WL 3962824, *16 (N.D.Cal. Aug. 12, 2014) (citing
FN3
cases).
Rather, a privacy interest can exist, if at
all, only with respect to the content of those communications. In any event, even if Victor were
claiming an expectation of privacy with respect to
the specific content of his text messages (which he
has not specified), the facts alleged demonstrate
that he failed to comport himself in a manner consistent with an objectively reasonable expectation
of privacy. By his own admission, Victor personally caused the transmission of his text messages to
the Sunbelt iPhone by syncing his new devices to
his Apple account without first unlinking his SunFN4
belt iPhone.
As such, even if he subjectively
harbored an expectation of privacy in his text messages, such expectation cannot be characterized as
objectively reasonable, since it was Victor's conduct that directly caused the transmission of his text
messages to Sunbelt in the first instance. See Hill, 7
Cal.4th at 26, 26 Cal.Rptr.2d 834, 865 P.2d 633.
FN3. Victor also does not specify whether
his claim is predicated upon text messages
sent by him, received by him, or both.
With respect to messages he transmitted,
there is authority finding that a plaintiff
has no reasonable expectation of privacy in
messages sent to third parties. See Fetsch
v.
City
of
Roseburg,
No.
6:11–cv–6343–TC, 2012 WL 6742665,
*10 (D.Or. Dec. 31, 2012) (plaintiff had no
expectation of privacy in text messages
sent from his phone because relinquished

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--- F.Supp.2d ----, 2014 WL 4274313 (N.D.Cal.)
(Cite as: 2014 WL 4274313 (N.D.Cal.))

control of them once they were transmitted).
FN4. Victor vaguely alleges that Sunbelt
intercepted his electronic communications.
He provides no factual support for this
conclusory assertion. See Countercl. ¶ 77.
The above notwithstanding, the facts alleged in
Victor's fifth counterclaim are insufficient to show
that Sunbelt intruded into Victor's privacy in a manner highly offensive to a reasonable person.
“Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or
potential impact to constitute an egregious breach
of the social norms underlying the privacy right.”
Hill, 7 Cal.4th at 37, 26 Cal.Rptr.2d 834, 865 P.2d
633. In addition, the plaintiff must show “that the
use of plaintiff's information was highly offensive.”
Folgelstrom v. Lamps Plus, Inc., 195 Cal.App.4th
986, 993, 125 Cal.Rptr.3d 260 (2011) (emphasis
added) (upholding the demurrer to plaintiff's common law invasion of privacy claim where, finding
that even if the customer addresses were obtained
through “questionable” means, there was “no allegation that Lamps Plus used the address once obtained for an offensive or improper purpose.”).
*7 Here, Victor alleges only that Sunbelt acted
in a “highly offensive” manner by “accessing, intercepting, monitoring, reviewing, storing and using
[his] post-employment private electronic data and
electronic communications without [his] knowledge, authorization or consent as part of an unreasonably intrusive and unauthorized investigation into
Victor's post-employment conduct.” Countercl. ¶
79. Victor offers no factual support for these conclusory assertions. In particular, he provides no details regarding the specific conduct by Sunbelt that
amounts to “accessing, intercepting, monitoring, reviewing, storing and using [his] post-employment
private electronic data and electronic communications.” Id. He also fails to aver any facts to establish that Sunbelt's use of the intercepted communications was highly offensive. See Folgelstrom, 195
Cal.App.4th at 993, 125 Cal.Rptr.3d 260. The pos-

sibility that Sunbelt may have reviewed text messages sent to a cell phone which it owned and controlled—without more—is insufficient to establish
an offensive use. As with his other claims, Victor's
formulaic recitation of an invasion of privacy claim
is inconsistent with the federal pleading requirements of Rule 8. This claim is DISMISSED with
leave to amend.
IV. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion to Dismiss Defendants
Counterclaims is GRANTED.
2. Defendant shall have twenty-one (21) days
from the date this Order is filed to amend his counterclaims, consistent with the Court's rulings. Defendant is warned that any factual allegations set
forth in his amended pleading must be made in
good faith and consistent with Rule 11. The failure
to timely file the amended counterclaim and/or the
failure to comply with this Order will result in the
dismissal of all counterclaims with prejudice.
IT IS SO ORDERED.
N.D.Cal., 2014
Sunbelt Rentals, Inc. v. Victor
--- F.Supp.2d ----, 2014 WL 4274313 (N.D.Cal.)
END OF DOCUMENT

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