Unreported / Non-Citable
Background
Scott Evans sued MH Sub I, LLC in state court on behalf of himself and a putative class, asserting privacy-related claims arising from tracking technologies on MH Sub's website. As the order describes the allegations, third-party trackers captured his communications, and MH Sub installed those trackers. The order treats the site as a legal-research website. MH Sub removed the case under the Class Action Fairness Act and moved to dismiss the first amended complaint. The claims were wiretapping and pen-register claims under the California Invasion of Privacy Act (CIPA), a federal Wiretap Act claim, a claim under the California Comprehensive Computer Data Access and Fraud Act (CDAFA), a California constitutional invasion-of-privacy claim, and a claim under the Unfair Competition Law (UCL).
The ruling is a short district court order that assumes familiarity with the facts and arguments. Evans pursued the CIPA wiretapping claim on an aiding-and-abetting theory, contending that MH Sub helped the trackers. The action was filed on February 20, 2026, and Evans agreed that newly enacted legislation, S.B. 690, defeats his pen-register claim.
The Court’s Holding
The court granted the motion and dismissed every claim with prejudice except the California constitutional privacy claim, which was dismissed with leave to amend. On CIPA wiretapping, Evans had to plausibly allege that MH Sub aided the trackers in reading, or attempting to read or learn, the contents of communications while in transit under Penal Code section 631(a). Following Doe v. Eating Recovery Center LLC, the court required more than interception in transit. It found that Evans did not sufficiently allege that the trackers even intercepted his communications in transit. The pen-register claim failed because S.B. 690 removes the private cause of action for such claims arising from website, online application, or mobile application conduct. It takes effect January 1, 2027, and applies retroactively to pending claims in actions commenced within two years before that date. On the federal Wiretap Act, interception is not unlawful where the interceptor is a party or a party consented. MH Sub is not liable as a party to any direct interception, and by installing the trackers it consented to any interception it allegedly aided.
The CDAFA claim failed for lack of statutory standing because Evans did not plausibly allege damage or loss. His conclusory assertion of damages and his unjust-enrichment allegation did not claim a financial interest in the data or explain how MH Sub harmed it. The UCL claim failed for the same reason, because Evans did not allege lost money or property. Profit to MH Sub is not economic injury to him, and loss of privacy is not an economic injury. The constitutional claim was dismissed because, without facts such as why Evans was researching, what browsing data was collected, how it was used and shared, and what advertising he received, he could not plausibly allege an invasion of privacy. The court noted that unlawful interception and dissemination of personally identifiable browsing data on such a site could constitute an invasion of privacy. It gave Evans 14 days to file an amended complaint.
Key Takeaways
- A CIPA wiretapping claim on an aiding-and-abetting theory requires plausible allegations that the third-party trackers read or attempted to read communications while in transit.
- S.B. 690 eliminates private pen-register claims based on website and app conduct and, per the order, applies to pending claims in actions commenced within two years before January 1, 2027.
- Under the federal Wiretap Act's party and consent exception, a website operator that installed trackers was not liable for the alleged interception.
- CDAFA and UCL claims need an alleged damage, loss, or pecuniary injury to the plaintiff; a defendant's profit or the loss of privacy is not enough.
- Only the constitutional privacy claim remains open, and only if Evans files an amended complaint within 14 days with concrete facts about the data and its use.
Why It Matters
This is an unreported district court order, so it carries no precedential weight beyond its persuasive reasoning. Its practical value is showing how one Northern District judge applied the in-transit requirement from Eating Recovery Center, the party-consent exception, and the new S.B. 690 bar to a tracking-technology class action.
The constitutional claim is not finally resolved. In a footnote, the court warned that class certification could be difficult even if that claim is adequately pleaded, because liability might require individualized inquiries into the same facts Evans must allege.