Filed 8/19/26 Shah v. WPromote CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
VIVEK SHAH, B350071
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 24STCV23077)
v.
WPROMOTE, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Reversed in
part, affirmed in part, and remanded with directions.
Vivek Shah, in pro. per., for Plaintiff and Appellant.
Loeb & Loeb, Christopher Ott and Jennifer G. Kahn for
Defendant and Respondent.
________________________
INTRODUCTION
Vivek Shah, in propria persona, sued Wpromote, LLC
(Wpromote), for California Invasion of Privacy Act (CIPA)
violations arising from Shah’s visit to Wpromote’s website, which
he alleges recorded and tracked his communications and other
private information. The trial court granted Wpromote’s motion
for judgment on the pleadings without leave to amend, in part,
because it concluded “based on judicially-noticeable facts,
Plaintiff’s allegations are false and misleading” and that
“uncontroverted allegations in [Wpromote’s answer] establish
Plaintiff’s consent.” The court entered judgment in Wpromote’s
favor. Although we conclude the trial court erred by not
accepting as true Shah’s factual allegations and instead relying
on the substantive contents of Wpromote’s website at the
pleading stage, the court correctly concluded Shah’s complaint
failed to allege sufficient facts to state a claim. Accordingly, we
reverse the judgment, affirm the grant of judgment on the
pleadings, and remand with directions to allow Shah to amend
his complaint.
FACTUAL AND PROCEDURAL BACKGROUND
A. Shah’s Complaint
In September 2024, Shah sued Wpromote alleging two
violations of CIPA (Pen. Code, §§ 631, subd. (a), 638.51, subd. (a)).
According to the complaint, Wpromote “secretly deployed
spyware at www.wpromote.com (the ‘Website’) that accesses
visitors’ devices and installs tracking spyware prior to any efforts
2
to obtain consent to do so, and then monitors and reports visitors’
online habits after they leave the Website,” and Wpromote
“secretly allows third parties to intercept and monetize any
search terms that unsuspecting visitors enter on the search bar
on the Website.” The complaint alleged that the website used
“third-party tracking” or “cookies,” i.e., “snippets of code that are
typically installed on multiple websites” to “collect and send
information about a user’s browsing history to other companies.”
Shah’s complaint alleged that “[w]ithin the statute of
limitations period, [Shah] visited the Website via an Internet-
connected computer. . . . [Shah] utilized the Search Bar to
perform a confidential search. . . . [Wpromote] rerouted [Shah’s]
Search Terms along with those for all users of the Website,
meant for [Wpromote], to the Third-Party Search Engine
Provider.” Shah alleged “[t]he Website does not provide users
with notice [of] – and no opportunity to consent to – [the
interception of the users’] Search Terms with third parties
contemporaneously with visitors’ search requests.” The
complaint further alleges that, “During [Shah’s] visit, [he] was
unaware of the tracking tools intercepting confidential
communications with the Website,” he “reasonably believed that
communications to the Website were made in confidence,” and he
“was not provided an opportunity to review or consent to sharing
of [his] information with any third party, or consent to the use of
tracking tools while using the Search Bar.” Shah alleged that
Wpromote did not obtain his “knowing and informed consent” to
the tracking of his private information.
3
Although the complaint’s factual allegations were premised
on search terms entered into Wpromote’s website, his causes of
action differed. As to the Penal Code section 631 cause of action,
Shah alleged that, without his consent, Wpromote aided,
employed or conspired with “both [a] Third-Party Spyware
Company and Meta/Facebook to intercept, eavesdrop upon, learn,
share, and monetize the contents of [Wpromote’s] chat
conversations.” As a result, Shah alleged, Wpromote
“intentionally caused the internet communication between [Shah]
and [Wpromote’s] website to be recorded.” Regarding the Penal
Code section 638.51 cause of action, Shah alleged that, without
his consent, Wpromote’s website installed a pen register or trap
and trace “beacon” on Shah’s browsers and used the beacon to
collect Shah’s “IP addresses, and track him.”1 Shah alleged he
“suffered an intangible injury to [his] dignity caused by the
invasion of [his] privacy.”
B. Entry of Default and Subsequent Proceedings
Wpromote did not file a timely answer to the complaint.
Shah requested entry of default against Wpromote in
1 A pen register is “a device or process that records or
decodes dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a wire or
electronic communication is transmitted, but not the contents of
a communication.” (Pen. Code, § 638.50, subd. (b).) A trap and
trace device is “a device or process that captures the incoming
electronic or other impulses that identify the originating number
or other dialing, routing, addressing, or signaling information
reasonably likely to identify the source of a wire or electronic
communication, but not the contents of a communication.” (Pen.
Code, § 638.50, subd. (c).)
4
November 2024, and the clerk entered default.
As relevant here, Wpromote filed an ex parte section 437,
subdivision (b), motion to vacate the entry of default in
January 2025, which the trial court denied. The court directed
Wpromote “to file a noticed motion” as “there is no good cause
upon which relief may be granted ex parte.”
Wpromote filed a noticed motion under section 473,
subdivision (b), to vacate the entry of default in February 2025,
which the court also denied. The court held a hearing on this
motion, but there is no record of these proceedings on appeal.
The court’s minute order denying the motion does not explain its
reasoning.
Wpromote filed a second motion under section 473,
subdivision (b), to vacate entry of default in March 2025.
Wpromote argued it “had not received notice at the time the
Complaint was filed or at the time the default was entered,” and
it “sought counsel in response to the request for default, which
was the first notice received.” Wpromote provided a declaration
from its senior counsel, who stated, “Throughout 2024,
[Wpromote] management and legal team has experienced a great
deal of turnover. With the departure of certain people from
[Wpromote’s] team, not all process, including the Complaint in
this matter, has been received promptly.”
Shah opposed, arguing Wpromote “completely fail[s] to
meet the showing of ‘mistake, inadvertence, surprise, or
excusable neglect’ ” required by section 473, subdivision (b).
After a hearing, the court granted Wpromote’s motion. The
court did not issue a written ruling, and there is no reporter’s
transcript or other record of the oral proceedings in the appellate
record.
5
C. Wpromote’s Motion for Judgment on the Pleadings
In August 2025, Wpromote moved for judgment on the
pleadings under section 438. Wpromote’s motion argued that
Shah had “copied the complaint filed in Garcia v. Wpromote, 24-
CV-7780-AB-MMA (C.D. Cal.)” (Garcia) and “in recent months”
Shah had filed a “series” of complaints copied from class action
suits.
As to the first cause of action, Wpromote argued that CIPA
“creates a private right of action only for a person ‘who has been
injured by’ a violation of one of its provisions,” and Shah “cannot
allege that he actually suffered an injury. . . . The Complaint
must be dismissed because it does not allege facts showing that
[Wpromote] ever invaded [Shah’s] privacy or injured him.”
Similarly, as to the second cause of action, Wpromote
argued that Shah did not suffer an injury under CIPA because
there is “no protected privacy interest in [Shah’s] IP address.”
Wpromote further argued Shah’s second cause of action failed
because “CIPA’s pen register provision does not prohibit the use
of technology on a website to collect visitors’ IP addresses.”
Wpromote also asserted Shah’s complaint purportedly failed to
allege Shah’s lack of consent to Wpromote “receiving, recording,
and transcribing any communications he sent,” and the
Wpromote website included “specific disclosures, consent and opt-
outs,” along with a Privacy Policy and Terms of Use which
“expressly discuss how companies other than [Wpromote] will
collect information about users, including search information.”
As to both causes of action, Wpromote contended that Shah
“fails to state a claim because he declined to state when any
relevant conduct occurred.” Wpromote asked the court to dismiss
6
Shah’s complaint without leave to amend because of its
“obviously false statements, impossible claims, and alleg[ations
regarding] non-existent features.”
In support of its motion, Wpromote asked the court to take
judicial notice of the Garcia complaint and undated screenshots
or printouts from Wpromote’s website, including its “landing
page,” privacy policy and terms of use, and a “banner that
appears on every page of the Wpromote website” explaining the
site’s use of “cookies.”2 The banner read: “We use cookies to
analyze traffic and improve your experience. Just wanted to let
you know! Learn more about cookies and similar technologies
here.” The banner contained three options for a user of
Wpromote’s website: (1) “Okay, got it!”; (2) “Use necessary cookies
only”; and (3) “Show details.” The banner expanded to show a list
of cookies, including the name, provider, purpose, maximum
storage duration, and type of each cookie.
Wpromote’s privacy policy stated: “Because we gather
important information from our users, visitors and customers . . .
we have established this Privacy Policy as a means to
communicate our information gathering and dissemination
practices.” The policy explained “WPROMOTE may also collect
certain information from visitors to, and users of, the Website,
2 Wpromote’s motion also relied on a declaration from Dana
Gausepohl “describ[ing] the features of the publicly-available
[Wpromote] website.” “[G]enerally a demurrer (or motion for
judgment on the pleadings) may not be based on declarations.”
(Barker v. Hull (1987) 191 Cal.App.3d 221, 227.) It does not
appear the Gausepohl declaration was included as an exhibit to
the motion for judgment on the pleadings, and even if it were we
would decline to consider it.
7
such as Internet addresses.” The policy also discussed cookies,
including a “cookie declaration” listing all necessary, marketing,
and unclassified cookies.3
Shah opposed Wpromote’s motion. As relevant here, Shah
argued the court could not resolve factual disputes on a motion
for judgment on the pleadings and that it must assume the truth
of his allegations in the complaint. He also argued Wpromote’s
request for judicial notice was improper at the pleading stage.
Shah further argued Wpromote’s motion “violates California Rule
of Court 3.1113(d) by exceeding the page limit without leave.”
Shah also argued Wpromote relied on “federal Article III
standing decisions that don’t apply in California state court.”
Shah requested leave to amend his complaint “to add further
detail concerning dates, technical operation, and the absence of
consent.”
The trial court heard argument on October 1, 2025. The
court granted Wpromote’s motion for judgment on the pleadings
without leave to amend. There is no reporter’s transcript or other
record of the hearing proceedings in the appellate record. The
court subsequently entered a judgment of dismissal and
dismissed Shah’s case with prejudice.
Shah timely appealed.4
3 Wpromote included in its answer to Shah’s complaint
substantially the same information from its website that it asked
the trial court to judicially notice.
4 Shah appealed on October 1, 2025, after the court granted
Wpromote’s motion but before the court entered judgment on
November 25, 2025. We construe Shah’s notice of appeal as
having been filed immediately after the court entered judgment.
(See K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875,
8
DISCUSSION
A. Shah Does Not Demonstrate the Trial Court Prejudicially
Erred By Vacating Wpromote’s Default
Shah argues the trial court erred by vacating default. Shah
contends he properly served Wpromote and thus the entry of
default was valid. Shah also argues that Wpromote did not meet
its burden under section 473, because it “never provided any
detailed explanation of what happened to the summons and
complaint” but made “generalized statements about staff
‘turnover’ and being ‘busy.’ ” According to Shah, the court erred
by granting Wpromote’s third motion to vacate entry of default
because the court had already denied the first two motions and
“[t]he third motion offered no new facts, no new legal arguments,
and no meaningful change in circumstances.” Shah further
argues the court erred by failing to issue a tentative ruling and
by stating it considered a “reply” to Shah’s opposition when
Wpromote did not file a reply. These arguments lack merit.
Section 473 allows for relief from default “taken against [a]
party through the party’s mistake, inadvertence, surprise, or
excusable neglect” within “a reasonable time, in no case
exceeding six months” after default was entered. (§ 473,
subd. (b); see Pulte Homes Corp. v. Williams Mechanical, Inc.
(2016) 2 Cal.App.5th 267, 273.) “It is the policy of the law that
every case should be heard upon the merits where possible,” and
882; Cal. Rules of Court, rules 8.100(a)(2), 8.104(d) [a premature
notice of appeal is valid if filed “after the superior court has
announced its intended ruling, but before it has rendered
judgment”].)
9
“section 473 is a remedial provision to be liberally construed to
the end that cases be disposed of upon their merits.” (Taliaferro
v. Taliaferro (1963) 217 Cal.App.2d 216, 220.) “ ‘ “Therefore, a
trial court order denying relief is scrutinized more carefully than
an order permitting trial on the merits.” ’ ” (Fasuyi v. Permatex,
Inc. (2008) 167 Cal.App.4th 681, 696 [policy of the law “ ‘ “looks
with disfavor upon a party, who, regardless of the merits of the
case, attempts to take advantage of the mistake, surprise,
inadvertence, or neglect of his adversary” ’ ”].) We review a trial
court’s ruling on a section 473 motion for an abuse of discretion.
(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
Shah does not demonstrate the trial court erred by
granting Wpromote’s section 473 motion. Wpromote’s showing
was sufficient to support relief under section 473. The motion did
not simply assert that Wpromote was “busy,” but explained that
“turnover” in Wpromote’s “team” caused legal process not to be
“received promptly.” “Where an attorney states that he was
unaware of his duty to appear or answer because his employees
misplaced papers or misinformed him . . . relief is routinely
granted.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234,
superseded by statute on a different ground as stated in Tackett
v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64; see
Elston, at pp. 234-236 [trial court abused its discretion by
denying section 473 relief].)
Although Shah argues that Wpromote was validly served
and the clerk validly entered default, section 473, subdivision (b),
permits a court to set aside a validly entered default without a
showing that service was improper. (See § 473, subd. (b).)
Additionally, Shah does not demonstrate that the trial court
erred by granting relief on the third section 473 motion (after
10
denying Wpromote’s first two motions), by purportedly failing to
issue a tentative order, or by relying on a nonexistent reply.
Even assuming the court erred on these points, Shah does not
demonstrate any prejudice. Shah asserts he was harmed because
“[h]ad the default remained in effect . . . Shah would have been
entitled to proceed toward default judgment.” This does not
constitute prejudice resulting in reversible error. (See Rogalski v.
Nabers Cadillac (1992) 11 Cal.App.4th 816, 822 [section 473
relief was proper where “[t]he only true prejudice to [plaintiff] is
that he will now have to go back and try the case on the merits.
But since the law strongly favors trial and disposition on the
merits, there is no prejudice.”]; accord, Goya v. P.E.R.U.
Enterprises (1978) 87 Cal.App.3d 886, 894.)
B. The Trial Court Erred by Granting Wpromote’s Motion for
Judgment on the Pleadings
Shah also argues the court should not have granted
judgment on the pleadings and that he was entitled to leave to
amend.
1. CIPA
CIPA is “a broad, protective invasion-of-privacy statute”
with a “statutory private right of action, authorizing any person
who has been injured by any violation of the invasion-of-privacy
legislation to bring a civil action to recover damages and to obtain
injunctive relief in response to such violation.” (Kearney v.
Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 115-116; see
Pen. Code, § 637.2.) Its purpose is “to protect the right of privacy
by, among other things, requiring that all parties consent to a
recording” of their communications. (Flanagan v. Flanagan
11
(2002) 27 Cal.4th 766, 769.)
As relevant here, Penal Code section 631 provides a cause
of action against “[a]ny person who . . . willfully and without the
consent of all parties to the communication, or in any
unauthorized manner, reads, or attempts to read, or to learn the
contents or meaning of any message, report, or communication
while the same is in transit or passing over any wire, line, or
cable, or is being sent from, or received at any place within this
state . . . or who aids, agrees with, employs, or conspires with any
person or persons to unlawfully do, or permit, or cause to be done
any of the acts or things mentioned above in this section.” (Pen.
Code, § 631, subd. (a).)
Penal Code section 638.51 provides that “a person may not
install or use a pen register or a trap or trace device without first
obtaining a court order” or unless “the consent of the user of that
service has been obtained.” (Penal Code, § 638.51, subds. (a),
(b)(5).) Shah alleged in his complaint that, “In plain English, a
‘pen register’ is a ‘device or process’ that records outgoing
information, whereas a ‘trap and trace device’ is a ‘device or
process’ that records incoming information.”
Based on the broad statutory language, federal courts in
California have applied these CIPA provisions to communications
conducted over the internet. (See, e.g., Campbell v. Facebook,
Inc. (9th Cir. 2020) 951 F.3d 1106, 1112 (Campbell) [recognizing
CIPA claim for use of information from users’ private messages
without consent]; Riganian v. LiveRamp Holdings, Inc. (N.D.Cal.
2025) 791 F.Supp.3d 1075, 1093 [“pen registers” within the
meaning of Penal Code section 638.50 “include[] data collection
tools” such as internet browser trackers]; Yoon v. Lululemon
USA, Inc. (C.D.Cal. 2021) 549 F.Supp.3d 1073, 1080 [“CIPA
12
§ 631(a) applies to communications conducted over the
internet”].) The parties do not dispute this interpretation of
CIPA, and we assume without deciding that CIPA extends to
internet communications.
In CIPA actions, the plaintiff must allege and prove his
lack of consent to record or track the communications or
information at issue. (See Rojas v. HSBC Card Services Inc.
(2023) 93 Cal.App.5th 860, 879-881, 889 [“lack of consent is a
required element under [] section 632” of CIPA]; accord, Weiner v.
ARS Nat. Services, Inc. (S.D.Cal. 2012) 887 F.Supp.2d 1029, 1032
[“Plaintiff must prove” elements of Pen. Code § 632 including that
“all parties did not consent”]; Pen. Code, § 638.51, subd. (b)(5)
[prohibiting pen register or trap and trace device unless “the
consent of the user of that service has been obtained”].)
2. Judgment on the Pleadings and Standard of Review
“A defendant may move for judgment on the pleadings on
the ground that the complaint does not state facts sufficient to
constitute a cause of action against that defendant. ([§] 438,
subd. (c)(1)(B)(ii).) A motion for judgment on the pleadings ‘is
equivalent to a demurrer and is governed by the same de novo
standard of review.’ ” (Environmental Health Advocates, Inc. v.
Sream Inc. (2022) 83 Cal.App.5th 721, 728 (Environmental);
accord, Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th
667, 672.).) “In evaluating the sufficiency of the challenged
pleading, we accept [as true] all material facts pleaded and those
that arise by reasonable implication, but not conclusions of fact or
law.” (Alameda County Waste Management Authority v. Waste
Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174; accord,
Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 670.)
13
“ ‘ “The grounds for a motion for judgment on the pleadings
must appear on the face of the challenged complaint or be based
on facts which the court may judicially notice.” ’ (McCormick v.
Travelers Ins. Co. (2001) 86 Cal.App.4th 404, 408.) . . . ‘If a
judgment on the pleadings is correct on any theory of law
applicable to the case, we will affirm it regardless of the
considerations used by the superior court to reach its conclusion.’
(Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185.) ‘Denial of
leave to amend after granting a motion for judgment on the
pleadings is reviewed for abuse of discretion.’ ” (Environmental,
supra, 83 Cal.App.5th at pp. 728-729; see Ott v. Alfa-Laval Agri,
Inc. (1995) 31 Cal.App.4th 1439, 1448 [abuse of discretion
standard].)
3. The Trial Court Erred By Relying on Extrinsic
Evidence To Grant Judgment on the Pleadings
Shah argues the court erred by resolving “factual disputes,”
failing to accept the complaint’s allegations as true, and relying
on “extrinsic evidence” in ruling on Wpromote’s motion for
judgment on the pleadings.5 The judgment of dismissal stated:
“Plaintiff’s allegations do not show that any law has been
violated; based on judicially-noticeable facts, Plaintiff’s
allegations are false and misleading; Plaintiff’s allegations fail to
assert timing; uncontroverted allegations in the pleadings
establish Plaintiff’s consent; and Plaintiff’s allegations in the
complaint establish that he has no injury-in-fact that would
5 Shah also argues Wpromote’s motion for judgment on the
pleadings was oversized under California Rules of Court, rule
3.1113. Wpromote’s memorandum supporting its motion did not
exceed the 15-page limit imposed by rule 3.1113(d).
14
establish standing. Furthermore, based upon Plaintiff’s own
arguments, no amendment would cure the above defects.”
We conclude the trial court erred by ruling Shah’s
allegations were false and misleading based on Wpromote’s
factual representations about its website. As stated, on a motion
for judgment on the pleadings, the trial court must “ ‘accept[] as
true the factual allegations that the plaintiff makes’ ” and “ ‘give[]
them a liberal construction.’ ” (Sepanossian v. National Ready
Mixed Concrete Co. (2023) 97 Cal.App.5th 192, 199.) This is so
even if the allegations are “ ‘improbable.’ ” (Starlight Cinemas,
Inc. v. Massachusetts Bay Ins. Co. (2023) 91 Cal.App.5th 24, 35;
Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270,
280.) Shah’s complaint alleged that Wpromote’s website did not
“provide users with notice [of] – [or] opportunity to consent to –
[the interception of the users’] Search Terms with third parties
contemporaneously with visitors’ search requests.” The trial
court was required to accept this allegation as true when ruling
on the motion for judgment on the pleadings.
In granting judgment on the pleadings, the court took
judicial notice of undated screenshots or printouts of Wpromote’s
website specifically, the pop-up banner regarding “cookies,” and
the privacy policy. “ ‘Presentation of extrinsic evidence is . . . not
proper on a motion for judgment on the pleadings’ ” (Burnett v.
Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063), although
“[c]ourts may consider judicially noticeable matters” (People ex
rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th
772, 777). A court may judicially notice “[f]acts and propositions
that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h);
15
see Evid. Code § 459, subd. (a) [reviewing court shall take judicial
notice of “each matter properly noticed by the trial court”].) A
court “may take judicial notice of the existence of . . . Web sites
. . . [but] may not accept their contents as true.” (Ragland v. U.S.
Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (Ragland);
accord, Al Shikha v. Lyft, Inc. (2024) 102 Cal.App.5th 14, 21
(Al Shikha) [court may not take judicial notice “ ‘of the truth of
the contents of a website’ ”].)
Even if judicial notice of the existence of Wpromote’s
website was proper, the court erred by relying on the contents of
the website as true and disregarding Shah’s contrary factual
allegations. “The contents of [] Web sites . . . are ‘plainly subject
to interpretation and for that reason not subject to judicial
notice.’ ” (Ragland, supra, 209 Cal.App.4th at p. 194; accord,
Al Shikha, supra, 102 Cal.App.5th at p. 21.) Here, the court
accepted as true Wpromote’s assertion that, at the time Shah
visited Wpromote’s website, the website displayed a pop-up
banner and privacy policy notifying visitors of cookies. But Shah
alleged that when he visited the website and used the search
function, he was not notified of and did not consent to the cookie
policy. The court was bound to accept Shah’s factual allegation
as true at the pleadings stage.6
6 That Wpromote included substantially the same materials
as the request for judicial notice in its answer to Shah’s
complaint does not change the result. “[O]n a motion for
judgment on the pleadings, the complaint cannot be attacked by
reference to matters set forth in the answer.” (Hughes v. Western
MacArthur Co. (1987) 192 Cal.App.3d 951, 957; Fosgate v.
Gonzales (1980) 107 Cal.App.3d 951, 957; Schwartz v. Schwartz
(1946) 74 Cal.App.2d 711, 713.)
16
4. Judgment on the Pleadings Was Proper Because Shah
Otherwise Failed To Allege Sufficient Facts
Supporting His Causes of Action
Wpromote argues that judgment on the pleadings was
properly granted based on Shah’s failure to allege injury in fact
and failure to state a claim. Only the second contention has
merit.
Wpromote argues Shah failed to allege “any facts showing
that WPROMOTE ever invaded his privacy or injured him.”
Here, the trial court determined Shah alleged “no injury-in-fact
that would establish standing.” “ ‘To ensure that relevant facts
and issues are adequately presented, California statutes
generally require that plaintiffs have suffered some injury.’ ”
(Yeh v. Barrington Pacific, LLC (2026) 117 Cal.App.5th 1303,
1313; accord, Angelucci v. Century Supper Club (2007) 41 Cal.4th
160, 175.) Indeed, Penal Code section 637.2 requires a CIPA
plaintiff to be “injured by a violation” of the act. (Pen. Code,
§ 637.2, subd. (a).) “Standing rules for statutes must be viewed in
light of the intent of the Legislature and the purpose of the
enactment.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1024.)
Shah’s complaint alleged he was “harmed by . . . having
[his] Search Terms intercepted by the Third-Party Search Engine
Provider” and he “suffered the loss of the right to control” his
“private and sensitive information.” In this way, Shah
sufficiently alleged he was injured by the CIPA violations in that
information he believed to be private was intercepted by
Wpromote and shared with third parties. (Cf. Campbell, supra,
951 F.3d at p. 1119 [concluding plaintiffs sufficiently alleged
injury “by claiming that Facebook violated . . . CIPA when it
17
intercepted, catalogued, and used without consent URLs they had
shared in private messages”].)
Wpromote also contends Shah failed to allege sufficient
supporting facts for his causes of action because his general
allegations pertained to his “searches” on the website but his
causes of action alleged Wpromote intercepted his “ ‘chat
conversations’ ” and his IP address. “To establish that a cause of
action has been adequately pled, a plaintiff must demonstrate he
or she has alleged ‘facts sufficient to establish every element of
that cause of action.’ ” (Williams v. Sacramento River Cats
Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286.) “[A]
complaint must set forth the essential facts of the plaintiff’s case
with reasonable precision and with particularity sufficient to
acquaint the defendant with the nature, source, and extent of the
plaintiff’s claim.” (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1376.) While a plaintiff need not plead
“each evidentiary fact that might eventually form part of the
plaintiff’s proof” (C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872), a plaintiff will not state a cause of
action “ ‘where the complaint itself is incomplete’ ” (Estate of
Moss (2012) 204 Cal.App.4th 521, 535).
We agree Shah’s complaint failed to allege sufficient facts
supporting his causes of action. As stated, Shah’s first cause of
action alleged Wpromote “intercept[ed]” and “share[d]” the
“contents of [his] chat conversations” on the website. But Shah
did not allege that he engaged in any chat conversations on the
website, but that he merely “perform[ed] a confidential search”
using the website’s “Search Bar.” As to his second cause of
action, Shah alleged Wpromote unlawfully used a “pen register”
by installing a “beacon” on his internet browser and using it to
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“collect [his] IP addresses, and track him.” But Shah did not
allege any facts supporting this claim. We therefore affirm the
grant of judgment on the pleadings on this ground. (See Taylor v.
Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 573,
fn. 5 [“We may affirm the trial court’s ruling on any ground
supported by the record.”]; Jimenez v. County of Los Angeles
(2005) 130 Cal.App.4th 133, 140.)
5. Leave To Amend Is Proper
“Ordinarily, an appellant who seeks leave to amend
attempts to show that the trial court’s denial of leave to amend
was error by showing on appeal what facts could be pleaded to
cure defects in the complaint and how they state a cause of
action. [Citation.] But for an original complaint . . . it has long
been the rule that a trial court’s denial of leave to amend
constitutes an abuse of discretion unless the complaint ‘shows on
its face that it is incapable of amendment.’ ” (Eghtesad v. State
Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411; accord,
City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 [“If
the plaintiff has not had an opportunity to amend the complaint
in response to the demurrer, leave to amend is liberally allowed
as a matter of fairness”]; Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 971 (Aubry).)
The court did not allow Shah to amend his complaint even
though the complaint does not establish on its face that it is
incapable of amendment. (See Tarrar Enterprises, Inc. v.
Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 688-689
[remanding for leave to amend original complaint where it did
not “ ‘ “conclusively appear[] that there is no possibility of
alleging facts under which recovery can be obtained” ’ ”]; accord,
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Aubry, supra, 2 Cal.4th at pp. 971-972 [affirming that plaintiff
failed to state a cause of action but remanding for leave to amend
where it “may be possible to allege” a viable cause of action].)
Shah argues he can amend to: “(1) Replace any stray ‘chat’
terminology . . . with ‘search terms,’ ‘search communications,’ and
‘website communications’ consistent with the complaint’s factual
allegations; (2) Add a short clarifying paragraph stating that the
communications at issue are search queries and associated web
communications generated when Appellant used the website
search bar, including the transmission of those search terms to
third parties; (3) Plead additional detail on timing and notice,
including that interception/transmission occurred before any
effective notice/consent, and that no informed consent was
provided prior to interception; (4) With respect to the PR/TT [pen
register/track and trace] claim, add specificity on the ‘dialing,
routing, addressing, or signaling information’ recorded/captured
by the embedded tools during the search interaction.” We agree
Shah is entitled to leave to amend. (See Blank v. Kirwan (1985)
39 Cal.3d 311, 318 [appellate court must assess “whether there is
a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion
and we reverse . . . The burden of proving such reasonable
possibility is squarely on the plaintiff”].)
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DISPOSITION
The judgment of dismissal is reversed. On remand, the
trial court is directed to vacate the order granting the motion for
judgment on the pleadings without leave to amend and to enter a
new order granting the motion with leave for Shah to amend his
complaint. The parties shall bear their own costs on appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J. FEUER, J.
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