Benjamin Hecht v. Frost & Sullivan Inc.

Zilifyan Decl., P. 3, Exh. 2.) Russ did not serve any timely responses. (Ibid.) Hollander specifically requests further responses to FROG No. 15.1 which requires a responding party who denies any request for admission to identify all facts, witnesses, and documents supporting each denial. (FROGs Motion, at p. 1.)

As an initial matter, the court notes that Russ provided initial responses to Hollander's FROGs on March 3, 2026. (Opp., at p. 4; Presser Decl., P. 7, Exh. C.)

On May 4, 2026, Responding Defendants served supplemental responses to FROG No. 15.1. (Opp., at p. 4; Presser Decl., P. 8, Exh. D.)

On June 16, 2026, Responding Defendants served further supplemental responses to FROG No. 15.1. (Opp., at p. 5; Presser Decl., P. 11-12, Exhs. F-H.)

Russ also served his Form Interrogatory responses and second supplemental responses on July 8, 2026. (Id., P. 18, Ex. K.)

It appears that Hollander declined to further meet and confer regarding the supplemental responses provided as to FROG No. 15.1 prior to filing this motion. (Opp., at pp. 5-6.)

The court orders that the parties meaningfully meet and confer regarding the purported deficiencies as to FROG No. 15.1 in an effort to reduce and clarify the issues to be addressed by the court. The parties are required to file supplemental briefing outlining any remaining discovery disputes regarding FROG No. 15.1. Accordingly, the motion is continued.

VII. CONCLUSION

1. Plaintiff/Cross-Defendant Shianne Hollander's Motion to Compel Further Responses to Requests for Production of Documents, Set Two, and Request For Sanctions as to Defendant/Cross-Complainant McGriff Insurance Services is CONTINUED.

2. Plaintiff/Cross-Defendant Shianne Hollander's Motion to Compel Further Responses to Requests for Production of Documents, Set Two, and Request For Sanctions as to Defendant Michael Martini is CONTINUED.

3. Plaintiff/Cross-Defendant Shianne Hollander's Motion to Compel Further Responses to Requests for Production of Documents, Set Two, and Request For Sanctions as to Defendant Michael Breedlove is CONTINUED.

4. Plaintiff/Cross-Defendant Shianne Hollander's Motion to Compel Further Responses to Requests for Production of Documents, Set Two, and Request For Sanctions as to Defendant Mark Russ is CONTINUED.

5. Plaintiff/Cross-Defendant Shianne Hollander's Motion to Compel Further Responses to Form Interrogatories, Set Two, and Request For Sanctions as to Defendants Mark Russ, Michael Breedlove, and Michael Martini is CONTINUED.

Demurrer to Plaintiff Benjamin Hecht's First Amended Complaint is SUSTAINED. The court will inquire whether leave to amend should be granted at the hearing.

I. BACKGROUND

On October 28, 2025, Plaintiff Benjamin Hecht ("Plaintiff") filed a complaint against Defendant Frost & Sullivan Inc. ("Defendant") alleging a single cause of action for violations of the California Trap and Trace Law under Penal Code section 638.51.

On February 24, 2026, pursuant to Plaintiff's request, Does 1 through 15 were dismissed with prejudice.

On May 8, 2026, Plaintiff filed a First Amended Complaint ("FAC").

On June 8, 2026, Defendant filed this Demurrer to Plaintiff's FAC.

On June 17, 2026, Plaintiff filed an opposition.

On August 4, 2026, Defendant filed a reply.

II. LEGAL STANDARD

"The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of" various grounds listed in statute. (Code Civ. Proc., Sec. 430.10.)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

"A demurrer tests the pleading alone, and not the evidence or facts alleged." (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)

As such, the court assumes the truth of the complaint's properly pled or implied factual allegations. (Ibid.)

The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

However, "[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend." (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

III. DISCUSSION

Defendant demurs to the single cause of action alleged in Plaintiff's FAC for violations of California Trap and Trace Law under Penal Code section 638.51 pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the grounds that Plaintiff fails to state sufficient facts to constitute such cause of action.

"Section 638.51 prohibits the use of pen registers and trap and trace devices, which are 'device[s] or process[es]' that record or capture 'dialing, routing, addressing, or signaling information' from a 'wire or electronic communication,' 'but not the contents of a communication.' [Citations.] To state a claim under [Section] 638.51, a plaintiff must allege that a defendant installed and used a pen register or trap and trace device without first obtaining a court order." (Moody v. C2 Educational Systems Inc. (C.D. Cal. 2024) 742 F.Supp.3d 1072, 1075.)

Defendant argues that the FAC fails to allege any specific data captured by the alleged LinkedIn tracking software, known as the "LinkedIn Insight Tag", deployed when Plaintiff visited Defendant's website on April 12, 2025. (Demurrer, at pp. 9-11.)

Defendant contends that instead Plaintiff merely alleges that the Insight Tag has the capacity to harvest: browser fingerprinting, operating system information, display characteristics, hardware identifiers, and canvas fingerprinting. (Id., at p. 9.)

The FAC alleges that the Insight Tag allegedly deployed through Defendant's website " captures extensive 'electronic or other impulses' that directly identify communication sources" which include: "detailed browser fingerprinting data providing unique device signatures and technical parameters; comprehensive device characteristics serving as persistent signaling information; and network routing data inherent in the communication monitoring process Defendant established." (FAC, P. 33.)

The FAC further alleges that Defendant, through this system, captured comprehensive identifying information from Plaintiff. (Id., P.P. 3, 21.)

The court finds these allegations conclusory, there are no specific facts as to what the software did to Plaintiff's device, what information was taken, nor what injury if any, Plaintiff suffered.

Penal Code section 637.2(c) permits a plaintiff to file an action without alleging they suffered or are threatened with actual damages. (Pen. Code, Sec. 637.2, subd. (c).)

However, it only authorizes such a suit by "a person who has been injured by a violation of this chapter." (Ibid.)

Therefore, while they need not show actual damages, Plaintiff must still allege a statutory injury. (Boorstein v. CBS Interactive, Inc. ¿(2013) 222 Cal.App.4th 456, 466-467 [holding statutory language limiting the cause of action for violations of Civil Code section 1798.83 et seq. to "customer[s] injured by a violation of this title" requires plaintiffs to plead a statutory injury].)

Without more, the court agrees that Plaintiff merely alleges the capabilities of the Insight Tag to collect data and not the data that was collected from Plaintiff to allow the court to determine whether Plaintiff sufficiently alleged an injury.

Defendant also argues that the alleged software cannot constitute a pen register or trap and trace device as statutory defined based on Plaintiff's allegations. (Demurrer, at pp. 12-14.)

A "pen register" records outgoing "information transmitted by an instrument", while a "trap and trace device" "captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing or signaling information" (Pen. Code, Sec. 638.50, subd. (b)-(c).)

Again, Plaintiff alleges that the Insight Tag collects " detailed browser fingerprinting data providing unique device signatures and technical parameters; comprehensive device characteristics serving as persistent signaling information; and network routing data." (FAC P. 33.)

Here, at first glance, it appears the information allegedly collected pertains to Plaintiff's device, not information about communications to or from the device which is required to constitute a pen register or trap and trace device. (Pen. Code, Sec. 638.50, subd. (b)-(c).)

However, the court needs further information concerning whether "persistent signaling information" is capturing "network routing data" and what that data represents.

Nevertheless, the demurrer is sustained. [1]

IV. CONCLUSION

Defendant Frost & Sullivan Inc.'s Demurrer to Plaintiff Benjamin Hecht's First Amended Complaint is SUSTAINED. The court will inquire whether leave to amend should be granted at the hearing.

[1] Defendant further argues that the FAC fails to allege facts sufficient to establish personal jurisdiction as to Defendant. (Demurrer, at pp. 14-19.) The court finds that a determination of whether California has personal jurisdiction over Defendant is improper for a demurrer. However, even if the court had considered the arguments, it appears that the FAC sufficiently alleged personal jurisdiction over Defendant taken the allegations as true. (FAC, P.P. 7-11.) | Home -->)" -->