MOSLEY, et al. vs MCAFEE, LLC

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 28 WILL BE HEARD IN DEPARTMENT 8C OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION****

Defendant McAfee, LLC’s (“Defendant”) motion for summary judgment against Plaintiffs Aaron Mosley, Angel Hernandez, Beth Bruns, Lisa Alexander, Markieda Hollier, Ross Jones, Ryan Willoughby, Sabrina Machari, Sydney Pearl, and Tameckia Cook (collectively “Plaintiffs”) is UNOPPOSED and ruled upon as follows.

Plaintiffs filed their complaint on August 13, 2024, alleging a single cause of action for Violations of California Restrictions on Unsolicited Commercial E-Mail (Cal. Bus. & Prof. Code § 17529.5.).

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 04/27/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8C

Plaintiffs allege, “Defendant MCAFEE, LLC and its third-party affiliates and advertising networks and senders (“Marketing Partners”) for advertising in and sending at least 288 unsolicited commercial emails (“spams”) that Plaintiffs received at their California email addresses within one year prior to the filing of this Complaint.” (Complaint, 2:1-4.)

Defendant brings the instant motion for summary judgment on the grounds that Plaintiffs cannot establish one or more essential elements of their claims under California Business and Professions Code section 17529.5 and that no triable issue of material fact exists. (Motion, 1:26 – 2:1.)

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [movant’s] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177 [brackets added].)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting CCP § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 04/27/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8C

supra, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326- 327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Finally, the Court reminds the parties of the 'Golden Rule' of summary judgment or adjudication: 'If it is not set forth in the separate statement, it does not exist.' (See Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 [italics in original].) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party's inclusion of facts in its separate statement effectively concedes each fact's 'materiality,' whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Discussion

Defendant sets forth undisputed materials facts (“UMF”) 1-49 in support of its motion. Among other things, Defendant sets forth that:

• McAfee did not send the produced emails claimed by Plaintiffs to violate Business and Professions Code section 17529.5. (UMF No. 34; Schumgar Decl. ¶ 15.)

• The emails at issue are “full of indications that McAffee did not authorize an affiliate to send the emails at issue.” (UMF No. 35; Schmugar Decl. ¶ 16.)

• At least 60 of the email addressed listed in the pdf emails were invalid. (UMF No. 46; Williams Decl. ¶ 29.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 04/27/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8C

• None of the emails Plaintiffs produced contain any of the limited number of sender email addresses McAfee uses when it sends emails to consumers advertising its products. (UMF No. 23; Schmugar Decl. ¶ 15.)

Violation of Business and Professions Code section 17529.5

To prevail under section 17529.5, each Plaintiff bears the burden of proving—through admissible evidence—that (1) McAfee sent, or hired an agent to send, (2) to or from California (3) a commercial email advertisement (4) to each Plaintiff’s electronic mail address (5) without that Plaintiff’s consent or a preexisting business relationship; and (6) that violated one of the statute’s specific prohibitions—i.e., materially misleading header information (§ 17529.5(a)(1)); including a deceptive subject line likely to mislead a reasonable recipient about a material fact (§ 17529.5(a)(2)); or omitting required disclosures (§ 17529.5(a)(3)). (Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083, 1091–1092.)

As to the first element, reference to a company’s products, services, or logo in an email does not establish that the sender acted on the company’s behalf. (See generally Balsam, supra, 203 Cal.App.4th at 1094–96.) Rather, to establish vicarious liability for emails sent by another, a Plaintiffs must prove authorization or ratification. (See id.)

Defendant’s proffered undisputed material facts establish that McAfee did not send or authorize an affiliate to send the produced pdf emails claimed by Plaintiffs to violate Business and Professions Code section 17529.5. (UMF No. 34-35.)

Defendant’s undisputed material facts submitted in support of its motion satisfy its initial burden to demonstrate that no triable issue of material fact exists for Plaintiffs’ action.

Once the moving party meets the burden of production, the burden shifts to the opposing party to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)

Having failed to oppose the motion, Plaintiffs cannot meet their burden. Defendant is therefore entitled to judgment as a matter of law.

Defendant’s motion for summary judgment is GRANTED.

To the extent Defendant seeks an award of costs and/or fees, Defendant shall file a separate motion seeking such costs and/or fees.[1]

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 04/27/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8C

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Counsel for Defendant shall submit a proposed judgment.

[1] Without citation to authority, Defendant also requests that the Court report Plaintiffs’ counsel Rockford

Hearn’s conduct to the U.S. Attorney’s office and the California State Bar. The Court declines this unsupported request. It is axiomatic that courts need not consider matters that are wholly unsupported by any citation to authority. (See,e.g., Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114 [“an issue merely raised by a party without any argument or authority is deemed to be without foundation and requires no discussion.”].)