Complaint,Petition: Susan Wei vs San Jose Sharks et al

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JENNIFER M. PROTAS - BAR# 250959
jenn.protas@hogefenton.com

ASHLEE N. CHERRY - BAR# 312731
ashlee.cherry@hogefenton.com

HOGE, FENTON, JONES & APPEL, INC.
Sixty South Market Street, Suite 1400
San Jose, California 95113-2396

Phone: (408) 287-9501

Fax: (408) 287-2583

Attorneys for Defendants
San Jose Sharks and Logan Couture

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA

Susan Wei
Plaintiff,
vs.
San Jose Sharks and Logan Couture,

Defendants.

3169536,

No. 18CV328985

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS' DEMURRER TO
PLAINTIFF'S SECOND AMENDED
COMPLAINT

Date: June 20, 2019
Time: 9:00 a.m.

Depte. 2

Judge: Hon. Mark H. Pierce

Trial Date: None

Complaint Filed: | May 29, 2018

DEFENDANTS’ DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS

TP. INTRODUCTION ...0. cc cecesetescsesesssesesescscscscscscsssnevessssssnessscevevecseseersneaseeeas 5

Il. RELEVANT PROCEDURAL HISTORY AND FACTS..

WET UEGAIPANALY Sloper ttn tee 8 eee cee eee i
A. Plaintiffs Claim for Defamation is Barred by the Statue of
LiMitAtIONS. «0... cece esesteenesescscecaeseereneesenensseetetenetseesseateneees 7
B. Plaintiff's Claim for Defamation Fails to State a Cause of
Action Upon Which Relief Can be Granted. 0.0... cece 9
Cc. Plaintiff's Cause of Action for Invasion of Privacy Fails to State
a Cause of Action Upon Which Relief Can be Granted............... 13
1. Plaintiffs Claim for Intrusion into Private Affairs. .............. 13
a Public Disclosure of Private Facts... 15
3. False Light... cccecseesesssescesessscseeeeecsescaeeenseseseeeeneesees 16
D. Plaintiff's Cause of Action for a Violation of the California
Invasion of Privacy Act Fails to State a Cause of Action Upon
Which Relief Can be Granted... iccecsscreeseseeretesereeeseneerees 17
IV. CONCLUSION 0.0. cece sctescseseeeeneeeesceseeseeeecseseseaeesaeneasanereneeeeeeasanenents 19

DEFENDANTS’ DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT
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TABLE OF AUTHORITIES

Cases

Cansino v. Bank of America (2014) 224 Cal.App.4th 1462...

Committee on Children’s Television, Inc. v. General Foods Corp. (1983)

35 Cal. 3d 197 oo. ececcsecseseccessssessesesecsessesessseeseeessessersessesesseeesesseesesansseersseeesesesanes /
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 wo. ccccccccscseccssesseseesetseseesstecesaseaeee 7,15, 19
Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593 ............ 8
E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308................. 9
Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992.0... 10
Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986 oe 14
Gilbert v. Sykes (2007) 147 Cal. App.4th 13 oo. eenecseeeneeeesesesenereeseees 10
In re iPhone Application Litig., (N.D. Cal. 2012) 844 F.Supp.2d 1040.0... cece 14

Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103

Kalnoki v. First American Trustee Servicing Solutions, LLC (2017)

8 Cal. App.Sth 23, 38... cece 8
Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal. App.3d 225.00... ccceeeeeeneee i
Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336 ......0.00..e 8
Manguso v. Oceanside Unified School! District (1979) 88 Cal.App.3d 726.............. 9
Te -rt—t—OC—C—C—C=C=C
Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125... cece 16
Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 oo... ess esesesessesresneseaneene 9
Rivera v. Nat'l R.R. Passenger Corp., (9th Cir. 2003) 331 F.3d 1074... ee 10
Ruiz v. Gap, Inc. (N.D. Cal. 2008) 540 F.Supp.2d 1121.0... ceesesesseseeeseseeeereeeneee 14
Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.2d 292.... i
Shively v. Bozanich (2003) 31 Cal.4th 1230... 9
Taus v. Loftus (2007) 40 Call.4th 683 oo... ccccecteeseseeeeeseeceeseeeeesenserereerseneneeees 13
Statutes
Cal. Penal Code § 630 oo... cccsseeseenesesseseseeeeesesceceecersesenerasseseeeeeeseaseeeneeee 17 -
3169536,

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Cal. Pernal Code § 632 ooo... cccccccsesseseseseeevscssecseseeseseeeeseseseeeceeseaeaeeesaneesenenes 18
Cal. Code of Civ. Proc. § 340(C) oo... seeseseeeseesestsnesesenensassescseseeeeesnseaeacseasseeeee 7
Cal. Code of Civ. Proc. § 430.10(€).......cccsesssscessesssssessesesessesesesesececssscscseacsesesteaees 7
California Invasion of Privacy ACt..........ccceecsscscssesssssessesesessseeeescsensssesescseacseseseeeees

California Penal Code Section 502

Electronic Communications Privacy Act and Computer,
Fraud, and Abuse Act..

Other Authorities

CACI NO. 1704 oo. eccecccccececsecsessseseeseesessesensensunsnesnsssessessssecsessessessecseseeseneresseseesesenees 10

CACI NO. 1800... cece ecsneseessessesseessaneseesessssstsossissessssessesseseeseeesesesseeneeneese 7

CACI NO, 1801 ooo. ecececcceceseecescesescsesseeseseeesesesseseseseeseseeneeeaneasseeneseeesseeseesneeneees 15

CACI NO. 1802 0.0... ececcecccececsncsnesessescssceeseeseneasesssetsaneeseessneeneeesessesseseessessesseeneees 16

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|. INTRODUCTION

Defendants San Jose Sharks (“Sharks”) and Logan Couture (“Couture”)
(collectively, "Defendants”) move to dismiss Plaintiff's Second Amended Complaint (“SAC”)
in its entirety for failing to state a claim. Plaintiff's SAC is premised on Plaintiff allegedly
meeting and flirting with Couture in April 2014. When she rejected his alleged advances,
Plaintiff claims that Defendants referred to her as a “puck bunny”’—purportedly a
derogatory term for women who are interested in hockey—as well as “easy” and “stupid,”
and that Defendants stated she was “looking for [Couture}” and “using [Couture].” (SAC,
142.) Plaintiff does not specify who made most of these alleged statements. Further,
Plaintiff alleges that as a result of her rebuffing Couture, Defendants hacked her medical
records and emails and impermissibly eavesdropped on her confidential conversations.
Again, it is unclear who specifically Plaintiff alleges engaged in these actions, or how or
when. (SAC, 2nd and 3rd Causes of Action.)

Plaintiff's SAC should be dismissed because it is replete with conclusory legal
allegations with vague and nominal factual support. Plaintiff has already formally amended
her Complaint twice (and attempted to amend it informally through two other law and
motion briefs) and has been unable to cure its defects. Plaintiff continues to ask this Court
to draw inferences that are not supported by facts to support her causes of action; this is
impermissible and insufficient to overcome a demurrer. Moreover, Plaintiff's action for
defamation is barred by the statute of limitations. For these reasons, the Court should
sustain Defendants’ demurrer without leave to amend.

Il. RELEVANT PROCEDURAL HISTORY AND FACTS

On or about May 29, 2018, Plaintiff filed a Complaint against Defendants in the
Superior Court of the State of California, County of Santa Clara, Case No. 18CV328985.
(Request for Judicial Notice (“RUN”), 1, Ex. A.) In her original Compiaint, Plaintiff alleged

six causes of action for relief against all Defendants, none of which stated a federal claim:

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(1) violation of California Penal Code Section 502; (2) Defamation; (3) False Light; (4)
Invasion of Privacy; (5) Fraud; and (6) Retaliation. (RUN, 11, Ex. A.) Thereafter, in
response to meet and confer efforts regarding the filing of a demurrer, Plaintiff filed a First
Amended Complaint on or about August 9, 2018. (RUN, 9/2, Ex. B.) Plaintiff's First
Amended Complaint alleged four causes of action: 1) defamation; 2) invasion of privacy; 3)
violation of the Electronic Communications Privacy Act and Computer, Fraud, and Abuse
Act and 4) witness tampering and bribery. (RUN, 92, Ex. B.) Plaintiff's last two causes of
action were premised on federal statutes and, therefore, Defendants timely removed the
action to Federal Court on September 7, 2018. (Declaration of Ashlee Cherry in Support of
Defendants’ Demurrer to Plaintiff's Second Amended Complaint (“Cherry Dec.”), 3.)

Defendants then moved to dismiss and strike Plaintiff's First Amended Complaint on
or about September 14, 2018. (Cherry Dec., 114.) Plaintiff filed an Opposition to this
Motion in which she alleged several new facts that she intended to add to her Complaint.
She also filed an “1) Emergency Motion for Supplemental Pleadings and/or amend
complaint to add Cause of Action pursuant to rule 15a2, 15(c)1(b), 15(d) 2) Additional oral
argument(s) as needed,” which alleged additional new facts. (Cherry Dec., [5.)
Defendants’ Motion to Dismiss was granted with leave to amend on November 13, 2018.
(Cherry Dec., 6.) Defendants’ Motion to Strike was granted in part. (Cherry Dec., 6.)
Plaintiff thereafter filed a Second Amended Complaint on or about November 28, 2018.
(Cherry Dec., 7.) The Second Amended Complaint alleged three claims: 1) defamation;
2) invasion of privacy; and 3) violation of the California Invasion of Privacy Act. None of
the claims were premised on a federal statute, so Plaintiff and Defendants stipulated to
remand the matter back to this Court on or about December 20, 2018. (Cherry Dec., 8.)
An order remanding this case was signed on or about December 26, 2018. (Cherry Dec.,
19.)

The Parties thereafter stipulated that: 1) Plaintiff could immediately commence
discovery in Superior Court; 2) Defendants’ deadline to file a responsive pleading to the

SAC would be February 14, 2019; and 3) the Case Management Conference that was set
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for February 19, 2019 would be continued until March 19, 2019. (Cherry Dec., 10.) On
January 16, 2019, this Court entered an order in accordance with this stipulation. (Cherry
Dec., 110.)

lll. LEGAL ANALYSIS

The purpose of a demurrer is to test the sufficiency of a plaintiff's complaint.
(Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.) A demurrer accepts as true all properly pleaded factual allegations included in the
complaint, solely and provisionally for the purpose of testing the sufficiency of the pleading.
(Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225.) For the purpose of testing
the sufficiency of a cause of action, the demurrer admits the truth of all material facts
properly pleaded (for example, all ultimate facts alleged, but not contentions, deductions,
or conclusions of fact or law.) (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

California Code of Civil Procedure, section 430.10, subdivision (e) provides that a
demurrer is proper where the pleading fails to state facts sufficient to constitute a cause of
action. Plaintiffs Second Amended Complaint fails to plead facts sufficient to constitute a
cause of action for defamation, invasion of privacy, or a violation of the California Invasion
of Privacy Act. Therefore, a demurrer is proper.

A. Plaintiff's Claim for Defamation is Barred by the Statue of Limitations.

Where the dates alleged in the complaint show the action is barred by the statute of
limitations, a general demurrer lies. (Saliter v. Pierce Bros. Mortuaries (1978) 81
Cal.App.2d 292, 300.) An action for libel or slander must be commenced within one year
of the publication. (Cal. Code of Civ. Proc. § 340(c).) Here, Plaintiff's cause of action for
defamation is time-barred.

In her SAC, Plaintiff alleges that “in November 2014. . . Ms. Wei could hear Mr.
Vlasic say ‘maybe she’s stupid.” (Plaintiff's SAC, 18.) Plaintiff does not allege elsewhere
in her SAC that this phrase was ever heard again after November 2014. Therefore, it is
apparent on the face of her SAC that Plaintiffs defamation cause of action is time barred

with regard to her allegation that Defendants suggested she was “stupid.”
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Further, allegations of a complaint are not accepted as true if they contradict or are
inconsistent with facts judicially noticed by the court. (Cansino v. Bank of America (2014)
224 Cal.App.4th 1462, 1474 (rejecting allegation contradicted by judicially noticed facts);
Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 38-
39.) Thus, a court may take judicial notice of admissions of inconsistent statements made
by a plaintiff in earlier pleadings in the same lawsuit and may disregard conflicting factual
allegations in the complaint. (De/ E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.App.3d 593, 604; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336,
344.)

Plaintiff's First Amended Complaint alleged that “sometime between 2014 and 2016,
Ms. Wei became aware that fans, athletes, and people such as Bret Hedican and Randy
Hahn were calling Plaintiff Puck Bunny.” (RJN, 9/2, Ex. B, 31.) Plaintiff did not allege that
she was called a “puck bunny” after the 2014 and 2016 time frame. Yet, Plaintiff's SAC
alleges the term “puck bunny’ was used sometime between 2014-2016 and also

thereafter” and that “‘easy,’ ‘slept with all those athletes,’ and ‘using him’ were not revealed
until 2017...” (SAC, ]42.) In short, after Defendants filed their Motion to Dismiss in
federal court and asserted the statute of limitations defense, she added an allegation that
she was called “puck bunny” again at some unspecified time after 2016. Further, Plaintiff's
First Amended Complaint did not contain an allegation that anyone said Plaintiff was
“looking for’ Couture. (See generally RUN, 2, Ex. B.) Again, this allegation (and the
timeframe in which it occurred) was added only after Defendants filed their Motion to
Dismiss. Thus, according to Plaintiff's prior pleading, these alleged defamatory statements
were published over two years ago (or were not published at all), and thus, as a matter of
law, Plaintiff's claim is barred. These new inconsistent allegations should not be accepted
as true and Plaintiff's claim for defamation should be dismissed as time-barred.

Though Plaintiff argues her claim for defamation “does not exceed the statute of
limitations if the ‘discovery rule’ is applied,” this is inaccurate. (Plaintiff's SAC, 167.)

Pursuant to the “discovery rule,” a claim will be postponed “until the plaintiff discovers, or
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has reason to discover, the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 397-398; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) A plaintiff
claiming delayed discovery of the facts constituting a claim has the burden of showing “the
time and manner of discovery and the inability to have made earlier discovery despite
reasonable diligence. The burden is on the plaintiff to show diligence, and conclusory
allegations will not withstand demurrer.” (E-Fab, Inc. v. Accountants, Inc. Services (2007)
153 Cal.App.4th 1308, 1324.) Had Plaintiff exercised reasonable diligence (at the very
least, she could have searched “puck bunny” on the internet), she would have determined
the meaning of “puck bunny” when she was allegedly initially referred to as one. (See,
e.g., Norgart, supra, 21 Cal.4th at 405-405 (holding that a wrongful death suit brought five
years after the death was time barred because the father admitted that around the time of
his daughter's death, he suspected something wrong had happened and thought there had
to be some other reason for her suicide).)

In the context of defamation cases, the discovery rule has been applied in cases of
libel where the defamatory statement is hidden from view and the plaintiff has no access to
or cause to seek access to the statement. (Shively v. Bozanich (2003) 31 Cal.4th 1230,
1249 quoting Manguso v. Oceanside Unified School District (1979) 88 Cal.App.3d 725
(applying the discovery rule to a case where the defamatory statement was hidden from
the plaintiff in her personnel file).) That is not the case here, as Plaintiff alleges that she
heard “the term ‘puck bunny’ in the 2014 and 2016 timeframe.” (Plaintiff's SAC, 67.)

As Plaintiff admits to being aware of the alleged statements “sometime between
2014-2016,” her defamation claim is time barred and is not subject to the discovery rule. It

should therefore be dismissed.

B. Plaintiff's Claim for Defamation Fails to State a Cause of Action Upon
Which Relief Can be Granted.
Second, Plaintiff fails to state a cause of action for defamation. Under California
law, “defamation is the intentional publication of a statement of fact which is false,

unprivileged, and has a natural tendency to injure or which causes special damage.”
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(Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.) In proving a cause of action of
defamation per se, a plaintiff must prove that (1) a defendant made a statement to a
person other than plaintiff; (2) it was reasonably understood that the statements were
about plaintiff; (3) it was reasonably understood that this statement falls into a category of
defamation per se; and (4) the defendant failed to use reasonable care to determine the
truth or falsity of the statement. (California Civil Jury Instructions (“CACI") No. 1704.)

Plaintiff's conclusory allegations do not establish a claim for defamation. Plaintiff
alleges that Defendants defamed Ms. Wei by calling her a) “Puck Bunny,” b) “easy,” and c)
“stupid,” and d) Defendants claimed she was “looking for him” and “using him” (Mr.
Couture), all of which allegedly “subjected plaintiff to hostility/ridicule by the sports
community and sharks fans.” (Plaintiff's SAC, 42.) At the outset, “looking” for someone is
not a defamatory statement as it does not fall into a category of defamation per se.

Further, Plaintiff alleges that a variety of Sharks employees and affiliates made
defamatory statements about her, but she fails to establish that these statements should
be imputed to the Sharks. An employer may be held liable for defamatory statements
made by its employees under the doctrine of respondent superior only if the defamation
occurred within the course and scope of the employee’s employment. (Farmers Ins. Group
v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) An action is within the course and
scope of employment when it “may fairly be regarded as typical of or broadly incidental to
the enterprise undertaken by the employer.” (/d. at 1003 (internal citations omitted).) Thus,
defamatory statements must typically pertain to work in some way in order to fall within the
course and scope of employment. (See, e.g., Rivera v. Nat'l R.R. Passenger Corp., (9th
Cir. 2003) 331 F.3d 1074, 1080-81 (interpreting a California cause of action and holding
that defendant employer may be liable for defamation committed by its employees because
“the[] statements were allegedly made by the individual defendants while on the job and
concerned matters of interest to Amtrak and its employees. The statements are therefore
appropriately characterized as being made within the scope of the individual defendants’

employment for purposes of respondent superior’); see also McLachlan v. Bell (9th
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Cir.2001) 261 F.3d 908, 912 (holding that employees’ defamatory statements made at
work about matters relating to work were within the scope of their employment for
purposes of respondent superior).)

Here, Plaintiff alleges that “sometime between 2014 and 2016, and thereafter, Ms.
Wei became aware that fans, athletes, and people such as Bret Hedican and Randy Hahn
were Calling Plaintiff Puck Bunny.” (Plaintiffs SAC, 31.) Plaintiff fails to allege any facts
to suggest that Mr. Hedican or Mr. Hahn made the statements “at work” or that allegedly
calling Plaintiff a “Puck Bunny” related to work or concerned a matter of interest to the
Sharks. As such, liability cannot be imputed to Defendant San Jose Sharks for their
alleged comments. Similarly, Plaintiff alleges that “the sports colleagues falsely claim
plaintiff was “looking for (Mr. Couture) until February 2018. [Jamie] Baker specifically
wondered why Ms. Wei would go to the grocery store everyday [sic].” (Plaintiff's SAC,
942.) Again, this allegation is devoid of any facts establishing that “the sports colleagues”
or Mr. Baker were acting within the course and scope of employment with the Sharks.
Indeed, Plaintiff does not even allege that Mr. Baker or “the sports colleagues” were
employees of the Sharks at the time of the alleged statement. There is therefore no basis
to impute liability for the alleged statement to the Sharks. Further, there is no basis to
impute liability for this statement to Couture as Plaintiff does not allege that Couture made
this statement.

Additionally, with regard to several other names that Plaintiff alleges she was called,
Plaintiff fails to allege who called her these names. For example, Plaintiff alleges that “she
overheard other sports associates, as well as butchers, claim the Sharks said plaintiff was
‘easy’ and ‘slept with all these athletes’ and stated it came from the sharks.” (Plaintiff's
SAC, 145.) Plaintiff does not allege that 1) Couture made this statement or 2) a Sharks
employee acting within the course and scope of their employment made this statement, yet
she asks this Court to impute liability to Defendants because “sports associates” and
“butchers” allegedly told her that the Sharks made defamatory statements about her.

Plaintiff does not allege who with the Sharks allegedly made these statements, and liability
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should not be imputed onto Defendants on the basis of gossip.

Plaintiff further fails to allege when, where, or how these statements were made, or
to whom they were published. Plaintiff alleges that “the terms ‘easy’ and ‘slept with
multiple athletes’ has garnered a heavy amount of ridicule from blue collar workers who
snickered at Ms. Wei and hurled sexual innuendos at plaintiff,” but she fails to allege how
these alleged statements were published and how any “blue collar workers” would have
been made aware of these statements. (Plaintiff's SAC, 970.)

Plaintiff's allegations ask the Court to make illogical jumps that are not supported by
facts. For instance, Plaintiff alleges that she rebuffed Mr. Couture and therefore the
Sharks are “defend[ing] the honor of Mr. Couture because they believed plaintiff ‘messed

”

with him. . .”” (Plaintiff's SAC, 26.) These allegations are based on Plaintiff's conjecture
and assumptions; there are no allegations to support that the Sharks defended Couture’s
honor or that the Sharks believe that Plaintiff “messed with” Couture. Based on Plaintiff's
speculation, she then asks the Court to attribute alleged statements made by non-
defendants to the Defendants. For example, Plaintiff alleges that “the term ‘using you’
(him/Mr. Couture) has in particular been spread heavily within the sports
community/amongst fans and has created a lot of contempt/hostility/from such community
towards Ms. Wei.” (Plaintiff's SAC, 170.) In this allegation and others throughout her SAC,
Plaintiff asks the Court to impose liability upon Defendants when she does not allege that
Defendants made these statements.

Moreover, even taken as true, Plaintiff's allegations do not plausibly state a claim for
relief. Plaintiff's allegations do not establish that anyone made a statement about Plaintiff
to someone other than Plaintiff. Furthermore, though she alleges she was called a “puck
bunny” and “easy” (among other alleged insults), she does not allege when this was said,
how, by whom, or to whom (other than to Plaintiff). Nor does she establish that it was
reasonably understood that the statements were about her. Indeed, there is no context
from which one can determine whether the statements were reasonably understood to be

about her. Plaintiff never alleges that she heard someone state to any third person,
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“Susan Wei is a puck bunny” or “Susan Wei is easy.” Rather, Plaintiff assumes these
comments are about her and that they were published to third-parties, and she asks this
Court to make the same assumption.

Further, Plaintiff does not plainly allege that the statements are false; to the
contrary, she admits that “Plaintiff apparently fit the definition of a puck bunny...”
(Plaintiff's SAC, 132.) Finally, Plaintiff has not alleged that Couture or any other member of
the Sharks failed to use reasonable care to determine the truth or falsity of the statements.
Thus, Plaintiff has failed to plausibly state a cause of action for defamation and the claim

should be dismissed.

Cc. Plaintiff's Cause of Action for Invasion of Privacy Fails to State a Cause
of Action Upon Which Relief Can be Granted.

1. Plaintiff's Claim for Intrusion into Private Affairs.

A cause of action for invasion of privacy premised on intrusion into private affairs will
lie where Plaintiff can establish that there has been “an intrusion into a private place,
conversation or matter in a manner highly offensive to a reasonable person.” (Taus v.
Loftus (2007) 40 Cal.4th 683, 724 (internal citations omitted).) Thus, the plaintiff must have
a reasonable expectation of privacy in the place, conversation or matter that has been
intruded upon, and the intrusion must be intentional. (CACI No. 1800.) In evaluating
whether a plaintiff has a reasonable expectation of privacy, factors such as the identity of
the defendant, the extent to which other persons had access to the place, conversation, or
matter, and the means by which the intrusion occurred should be considered. (/d.) In
evaluating whether the intrusion is highly offensive to a reasonable person, one should
consider the extent of the intrusion, the defendant's motives and goals, and the setting in
which the intrusion occurred. (/d.)

There is a high bar for invasion of privacy claims. Courts have held that disclosure
of personal information, including social security numbers and home addresses, for
instance, does not constitute “an egregious breach of the social norms” to establish an

invasion of privacy claim. (See, e.g., In re iPhone Application Litig., (N.D. Cal. 2012) 844
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F.Supp.2d 1040, 1063 (interpreting a California cause of action for invasion of privacy and
holding that the disclosure to third parties of unique device identifier numbers, personal
data, and geolocation information did not constitute an egregious breach of privacy); Ruiz
v. Gap, Inc. (N.D. Cal. 2008) 540 F.Supp.2d 1121, 1127-28 aff'd, (9th Cir. 2010) 380
Fed.Appx. 689 (interpreting a California cause of action for invasion of privacy and holding
that the theft of a retail store's laptop containing personal information, including the social
security numbers, of job applicants did not constitute an egregious breach of privacy and
therefore was not sufficient to state a claim for the California Constitutional right to privacy);
Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 992 (Here, the supposed
invasion of privacy essentially consisted of [the defendant] obtaining plaintiffs address
without his knowledge or permission, and using it to mail him coupons and other
advertisements. This conduct is not an egregious breach of social norms, but routine
commercial behavior.”).)

Plaintiff's cause of action for invasion of privacy fails to meet this high bar. Plaintiff
concedes that she must prove “That [Couture and Sharks] intentionally intruded in
Plaintiff's Dr's office, Stanford medical records, emails, financial records, plaintiff's home,
and plaintiffs phone.” (Plaintiffs SAC, 73.) Yet, she fails to allege that an intrusion
occurred, Even if the Court were to accept Plaintiff's recitation of the jury instruction as a
legal allegation, Plaintiff does not include any factual allegations sufficient to reflect an
intrusion into Plaintiff's doctor's office, Plaintiff's various private records, Plaintiffs home, or
Plaintiffs phone. Notably, Plaintiff seems to simply assume that a hacking must have
occurred, because she does not allege how the alleged hacking occurred or who
specifically engaged in any hacking. Nor does she allege when the alleged hacking
occurred nor what the alleged hacking specifically was. Instead, Plaintiff simply speculates
that “defendants may have used the Sharks app downloaded by plaintiff or some other
methods,” that the app, “possibly using beacon technology. . . may have also allowed
defendants to hear intimate moments,” and that “defendants may have used a cyber Trojan

Horse or Metasploit to obtain control of [her] phone. (Plaintiff's SAC, 53-56.) Plaintiff is
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grasping at straws and drawing unsupported inferences, and she asks this Court to do the
same. Plaintiff's allegations of assumed events are insufficient to survive a demurrer.
(Daar v. Yellow Cab Co., supra, 67 Cal.2d at 713.)

Moreover, there are insufficient allegations to establish that the alleged intrusion into
Plaintiff's private affairs was highly offensive or egregious. Specifically, Plaintiff quotes a
jury instruction to allege that Defendants’ alleged “intrusion of Ms. Wei’s private parts,
sexual history in medical record, specific details about Plaintiff [sic] children’s life would be
highly offensive to a reasonable person,” but she never alleges that any of this occurred to
her. (Plaintiffs SAC, 973.)

2. Public Disclosure of Private Facts

To establish a cause of action for invasion of privacy premised on public disclosure
of private facts, a plaintiff must establish that (1) the defendant publicized private
information concerning the plaintiff; (2) a reasonable person in plaintiff's position would
consider the publicity highly offensive; (3) defendant knew, or acted with reckless disregard
of the fact, that a reasonable person in plaintiff's position would consider the publicity
highly offensive; (4) the private information was not of legitimate public concern; (5) plaintiff
was harmed; and (6) defendant's conduct was a substantial factor in causing plaintiff's
harm. (CACI No. 1801.) The absence of any of these elements is a complete bar to
liability. (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129-1130
(emphasis added).)

Plaintiff alleges that “defendants disclosed certain elements of plaintiff's and
plaintiff's mom's property history leading fans/blue collar workers to know (plaintiff) “has
money.” (Plaintiff's SAC, 775.) Plaintiff has made no factual allegations as to 1) who
made this disclosure, or 2) how this disclosure was made. Plaintiff has therefore failed to
establish that Defendants publicized any information, or that Defendants’ conduct was a
substantial factor in causing Plaintiff's harm. Rather, Plaintiff simply concludes that such a
disclosure happened and expects this Court to make the same conclusion. Plaintiff further

fails to allege facts reflecting that a publication that Plaintiff “has money” is highly offensive.
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Lastly, Plaintiff alleges that “Defendants also disclosed confidential emails between
plaintiff and a previous coworker/financial associate.” (Plaintiffs SAC, 75.) This
allegation suffers the same fatal flaws. Plaintiff offers no factual allegations as to 1) who
made this disclosure, or 2) how this disclosure was made. Again, she simply concludes,
without factual support, that Defendants engaged in this behavior. In short, Plaintiff has
failed to establish the most basic element of a cause of action for public disclosure of
private facts: that a disclosure took place. Thus, Plaintiff's cause of action must fail.

3. False Light

To properly allege a cause of action for false light invasion of privacy, a plaintiff must
demonstrate that (1) a defendant publicized information or material that showed plaintiff in
a false light; (2) the false light created by the publication would be highly offensive to a
reasonable person in plaintiff's position; and (3) there is either clear and convincing
evidence that defendant knew the publication would create a false impression about
plaintiff or acted with reckless disregard for the truth or that defendant was negligent in
determining the truth created by its publication. (CACI No. 1802.)

Plaintiff alleges, “Plaintiff claims invasion of privacy via False light as certain facts
disclosed regarding plaintiff's medical record were not actually true. Defendants also
falsely disclosed sexual liaisons between plaintiff and some of plaintiff's male coworkers.
Furthermore, the separate statements a) puck bunny b) looking for him (Couture) c) easy
d) slept with all those athletes can be incorporated under the “falselight” [sic] claim. It is
considered offensive as it alleges untrue sexual misconduct.” (Plaintiff's SAC, 775.) With
regard to Plaintiff's claim that Defendants “falsely disclosed sexual liaisons,” Plaintiff does
not allege a single fact indicating 1) how Defendants knew about any of Plaintiff's previous
sexual partners, 2) who made any alleged disclosure, 3) who the disclosure was made to,
4) how the disclosure was made, or 5) when the disclosure was made. Plaintiff simply
asks this Court to accept that Defendants disclosed her sexual history. Moreover, “looking
for him (Couture)” is not a highly offensive publication. Thus, these allegations fail to meet

the requisite elements for a false light cause of action.
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Finally, with regard to allegedly being called “easy” and the alleged statement that
she “slept with all those athletes,” Plaintiff never alleges that Couture or an employee of
Sharks acting within the course and scope of their employment made these statements
about Plaintiff; she simply alleges generically that “defendants” called her these names.
(See, e.g., Plaintiff's SAC, 42.) Thus, there is no basis to impute liability on Defendants.

D. Plaintiff's Cause of Action for a Violation of the California Invasion of

Privacy Act Fails to State a Cause of Action Upon Which Relief Can be
Granted.

The California Invasion of Privacy Act (“CIPA”) is this state’s anti-wiretapping and
anti-eavesdropping statute that prohibits unauthorized interceptions of communications to
protect the right of privacy. (Cal. Penal Code, § 630.)

CIPA section 632, subdivision (a) imposes liability upon:

A person who, intentionally and without the consent of all parties to a

confidential communication, uses an electronic amplifying or recording device

to eavesdrop upon or record the confidential communication, whether the
communication is carried on among the parties in the presence of one

another or by means of a telegraph, telephone, or other device, except a

tadio, shall be punished by a fine not exceeding two thousand five hundred

dollars ($2,500) per violation, or imprisonment in a county jail not exceeding

one year, or in the state prison, or by both that fine and imprisonment. . .

(Cal. Penal Code, § 632, subd. (a).)

“Confidential communications” are defined as “any communication carried on
in circumstances as may reasonably indicate that any party to the communication
desires it to be confined to the parties thereto.” (Cal. Penal Code, § 632, subd. (c).)

To support her cause of action, Plaintiff alleges that she “did not authorize the
following below where plaintiff had an assumption of privacy:

i) listening of Plaintiff's landline calls to/from Doctors and Lawyers

ii) listening of Ms. Wei’s a) landline or b) cellphone calls regarding

Plaintiff's, Plaintiff's mom, and Plaintiff's mother in laws finances,
property, or medical issues.

iii) in clinic/building discussions between Plaintiffs doctor or potential

lawyers where coincidentally a XFINITY/COMCAST (distributor of
Sharks games on cable) was parked.

In these confidential instances, after the Stanford medical record invasion,
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plaintiff would purposely turn off her phone.

iv) whatever means defendants used to obtain information on plaintiff's
medical record

v) whatever means defendants may have used to view plaintiff's naked
body/private parts.”
(Plaintiff's SAC, 9185.)

Plaintiff does not allege any facts to support that either of the Defendants utilized
any sort of device to eavesdrop on her confidential communications. Indeed, Plaintiff's
SAC is full of speculation that is devoid of any factual evidence that Defendants violated
California Penal Code § 632. In fact, Plaintiff explicitly states in the SAC that she does not
know how information was obtained regarding her medical records or how her naked body
was viewed, (See Plaintiffs SAC, 85(iv)-(v).) Further, she alleges that "defendants may
have used the Sharks app downloaded by Plaintiff or other methods to Violate the
California Invasion of Privacy Act and CA Penal Code section 632 et al.” (Plaintiff's
SAC, {153 (emphasis in original).) Plaintiff further speculates that “the [Sharks] app,
possibly using beacon technology, and/or other electronic ‘eavesdropping’ technology
enabled defendants to hear communications between plaintiff and her children, her mother,
and her husband. It may have also allowed defendants to hear intimate moments with
her husband in plaintiffs home where one has a reasonable expectation of privacy.”
(Plaintiff's SAC, 54 (emphasis in original).) Plaintiff goes on to allege that “the [Sharks]
app or other hacking methods, enabled defendants to turn on camera and see items in her
home including her a) electric keyboard b) hockey table c) parts of her house that were
small and messy d) her children chaotically jumping up and down on her couch.”
(Plaintiffs SAC, 155.) Plaintiffs use of such equivocal language as “may have used,”
“possibly,” and “may have also allowed” demonstrate that Plaintiff's allegations are not
based on fact or reasonable inferences. Instead, Plaintiff theorizes about how a violation
of California Penal Code § 632 could have occurred. Allegations based purely on
conjecture are insufficient to support a cause of action. (Daar v. Yellow Cab Co., supra, 67

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Cal.2d at 713.) Therefore, Plaintiff's cause of action for violation of the CIPA must fail.
IV. CONCLUSION

Plaintiff has failed to allege a single viable cause of action against Defendants.
Further, leave to amend would be futile as Plaintiff has already formally amended her
Complaint twice (and attempted to further amend her Complaint through two other briefs),
and the above-stated defects remain uncured. For these reasons, Defendants San Jose
Sharks and Logan Couture respectfully request that the Court sustain Defendants’
demurrer.

DATED: February 14, 2019
HOGE, FENTON, JONES & APPEL, INC.

Jennifer M. Protas

Ashlee N. Cherry
Attorneys for Defendants

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