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)
michael.stortz@dbr.com
MATTHEW J. ADLER (SBN 273147)
matthew.adler@dbr.com
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)
matthew.fedor@dbr.com
DRINKER BIDDLE & REATH LLP
600 Campus Drive
Florham Park, New Jersey 07932-1047
Attorneys for Respondent
FOOT LOCKER RETAIL, INC.

INDEX

Exhibit
A
B

Document
Complaint for Damages
and Declaratory Relief
United States District Court
(N.D. Cal.) Order Granting
Motion to Remand
Memorandum of Points and
Authorities in Support of
Foot Locker Retail Incs
Demurrer to Complaint
Memorandum of Points and
Authorities in Support of
1INK.coms Demurrer to
Complaint

Date
June 25, 2013

Page No.
2

October 1, 2013

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November 4,
2013

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November 14,
2013

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EXHIBIT A

EXHIBIT B

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EXHIBIT C

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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

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

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

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

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

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

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is subject to demurrer on that ground.

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

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

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

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plead facts that demonstrate a basis to support joinder.

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II.

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BACKGROUND

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Plaintiff alleges that he received approximately 325 to 335 unsolicited emails

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

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

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

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

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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 when any of the emails

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

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

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

falsified, misrepresented, or forged or how the 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. See Bus. & 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

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broadly claims, in the alternative, that the emails contained untraceable or otherwise

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misleading sender information; or falsified, misleading, or forged header or subject line

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

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

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

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

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

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

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

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

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

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AC.

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III.

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ARGUMENT

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A.

Plaintiffs Claims Should Be Dismissed For Failure To Plead Them With Sufficient
Particularity.
Plaintiffs unsupported, vague, and conclusory allegations are insufficient as a matter of

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law, and should be dismissed. See Code Civ. Proc., 430.10(e) (demurrer proper where
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complaint fails to state facts sufficient to constitute a cause of action). Claims under the Anti28
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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

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header information or that the subject lines would be likely to mislead a recipient about a

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material fact. Hypertouch, Inc. v. Valueclick, Inc. (2011) 192 Cal.App.4th 805, 833. See also

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Bus. & Prof. Code 17529.5(a).

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

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

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

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fraud and must be pled with particularity); Robinson Helicopter Co., Inc. v. Dana Corp.

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(2004) 34 Cal.4th 979, 993 (In California, fraud must be pled specifically; general and

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conclusory allegations do not suffice (quotations omitted)), quoting Lazar v. Superior Court

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(1996) 12 Cal.4th 631, 645. This particularity requirement necessitates pleading facts which

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

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Robinson, supra, at 993 (quotations omitted).

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

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to plead with particularity. See 2013 WL 3815663 at *3. The plaintiff in Moreland alleged that

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

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email headers. Id. at *1. In finding that the allegations did not satisfy the heightened pleading

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standard, the court explained that the plaintiff

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

has failed to provide the specifics regarding (including an example

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of) each type of allegedly false or misleading advertisement, the

number of those advertisements [or] the date ranges of the emails in
each category. He did not provide a single example email, does
not identify how many of the 1,300 emails fall into each of his
seven categories of prohibited tactics, and fails to identify the
date ranges of the emails in each category. Nor has he alleged
the domain names for the landing sites to which any of the emails
at issue redirect, who those sites were registered to, any of the
allegedly unlawful subject lines, the sender of any of the emails,
or the dates on which each email was sent.

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Id. at *2 (emphasis added).

Plaintiffs bare allegations here similarly fail to satisfy the particularity requirement.
Indeed, Plaintiff has provided no specifics whatsoever regarding the emails, much less the
required who, what, when, where, and how of the alleged fraud. Robinson, supra, 34 Cal.4th at
993. Like in Moreland, Plaintiff did not include a single example email with his Complaint. He
does not allege the dates when he received any of the emails. He does not identify the email
address(es) where the emails supposedly were sent. He does not describe what the content of the
emails say. He does not say who supposedly sent each email. And he does not explain how the
email header information is falsified, misrepresented, or forged or how any 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. See Bus. & Prof. Code
17529.5(a).
The lack of particularity of Plaintiffs allegations against Foot Locker is 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 or otherwise misleading sender information; or falsified, misleading,
or forged header or subject line information; or were 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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e.footlocker.com, which Plaintiff baldly concludes is somehow misleading and deceptive.

Compl. 7. In the absence of any underlying specifics such as example emails, how many fall

into each category, the dates they were sent, etc. Plaintiffs unsupported and conclusory

allegations are insufficient.

Because Plaintiff failed to plead his Anti-Spam Law claims with sufficient particularity,

they should be dismissed. Numerous other courts have dismissed similarly deficient Anti-Spam

Law claims. See, e.g., Moreland, supra, 2013 WL 3815663 at *3. See also Hypertouch, supra,

386 Fed. Appx. at 702 (affirming dismissal of Anti-Spam law claims because they were pled

with no degree of particularity); Subscriberbase, supra, 2009 WL 4723338 at *4-5 (dismissing

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Anti-Spam Law claims for the over 2,000 alleged violations for which plaintiffs did not submit

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sample emails); Asis Internet Servs. v. Optin Global, Inc. (N.D. Cal. June 30, 2006) No. C 05-

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5124 CW, 2006 WL 1820902, at *4-5 (granting motion to dismiss and finding Anti-Spam Law

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claims were not pled with sufficient particularity where plaintiff alleged that subject lines were

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false and misleading and would be likely to mislead a recipient but did not provide an example

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or otherwise specify the manner in which the subject lines were false and misleading and failed

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to plead the identity of the senders of the alleged spam).

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B.

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Defendant 1INK.com Was Improperly Joined And Should Be Severed From This
Action.
Additionally, because Plaintiff has failed to allege any facts suggesting a relationship or

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any other connection between Defendants Foot Locker and 1INK.com, the Complaint is subject
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to demurrer for misjoinder. See Code Civ. Proc., 430.10(d) (demurrer proper where complaint
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contains a misjoinder of parties); Geraci v. United Services Automobile Assn. (1987) 188
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Cal.App.3d 1245, 1248 (same). Indeed, there is simply no basis to support joinder of Foot Locker
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and 1INK.com as co-defendants in this action.
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Initially, it is clear from the face of the Complaint that Foot Locker and 1INK.com are
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separate and unrelated businesses. As alleged, Foot Locker is a New York corporation that acts
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as a retailer of athletic footwear and apparel. Compl. 2. By contrast, 1INK.com is a California
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business that sells commercial printer ink and similar products. Compl. 3. Plaintiff does not
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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.

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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. See Code Civ. Proc., 379(a)(1).

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

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

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

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

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

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

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

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

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Plaintiff can prevail against 1INK.com.

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

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

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

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

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

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

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

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series of transactions or occurrences).

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The permissive joinder rule requires more. Defendants may be joined in a single action

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 either Foot Locker or 1INK.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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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improperly joined parties at any time).

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EXHIBIT D

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