Shumard vs. Boot Barn Holdings, Inc.

Counsel is ordered to give notice of the ruling.

10 30-2025-01522081 Defendant Boot Barn Inc.’s (“Defendant”) Demurrer to Plaintiff Shumard vs. Boot Mike Shumard’s (“Plaintiff”) First Amended Class Action Barn Holdings, Inc. Complaint (“FAC”) is OVERRULED. IT IS ORDERED THAT Defendant file an answer to Plaintiff’s FAC within fourteen (14) days of this ruling.

In this action, Plaintiff alleges a single class action claim against Defendant for violation of Cal. Pen. Code § 632.7, which makes it unlawful to “intercept[] or receive[] and intentionally record[] . . . a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone [without the consent of all of the parties to a communication][.]”

Cal. Pen. Code § 637.2(a) states: “Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000) per violation[;] [or] (2) Three times the amount of actual damages, if any, sustained by the plaintiff.” Further, “[a]ny person may . . . bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages[.]” (Cal. Pen. Code § 637.2(b).) “It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.” (Cal. Pen. Code § 637.2(c).)

Plaintiff alleges that “[i]n or about early September or late August, 2025, Plaintiff called the Boot Barn customer service number, 888-440-2668, and spoke with a Boot Barn customer service representative.” (FAC ¶ 12.) “Plaintiff’s telephone call to Defendant’s customer service was made while Plaintiff was in California using a cellular telephone with a California area code.” (Id. ¶ 16.) “Plaintiff is informed and believes and thereon alleges, that the customer service representative who answered his call was also using a Telephonic Communication System Device,” which is defined as one of the enumerated devices identified in Cal. Pen. Code § 632.7. (Id. ¶¶ 3, 16.) Plaintiff alleges that “Defendant knowingly violated Section 632.7 by intentionally recording calls with California residents using Telephonic

Communication System Devices without obtaining consent for recordation.” (Id. ¶ 28.)

The court finds that these allegations are sufficient to state a claim.

Cal. Pen. Code § 632.7 only covers communications between a “cellular radio telephone,” “cordless telephone,” or “landline telephone,” and Defendant claims that it uses an internet-based system that is not covered by the statute. However, this argument is based on a fact outside of the scope of the pleadings, and thus is not a proper basis for attacking the pleadings. “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.” (Del E.

Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “[A] court cannot consider . . . the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)

Further, while Defendant argues that its purported internet-based call system is not covered by the statute, Defendant cites to nonbinding federal cases that involve chat features on websites, which is very different than using voice-over-internet protocol (“VOIP”) technology to handle phone calls from customers. (Byars v. Sterling Jewelers, Inc.(C.D. Cal. Apr. 5, 2023) No. 5:22-CV-01456-SB-SP, 2023 WL 2996686, at *1 [sales chat feature on website]; Byars v. Hot Topic, Inc. (C.D. Cal. 2023) 656 F.

Supp. 3d 1051, 1057 [chat feature on website]; Martin v. Sephora USA, Inc. (E.D. Cal. Mar. 30, 2023) No. 1:22-CV- 01355-JLT-SAB, 2023 WL 2717636, at *1 [website chat feature]; Jones v. Tonal Sys., Inc. (S.D. Cal. 2024) 751 F. Supp. 3d 1025, 1029 [customer support chat feature on website]; Esparza v. Ecco USA Inc. (Cal.Super. July 06, 2023) No. 37202300009235CUCRCT, 2023 WL 4490541, at *2 [website chat feature]; Heiting v. Harpercollins Publishers LLC (Cal.Super. July 29, 2024) No. 23STCV10382 23STCV09965, 2024 WL 7006705, at *1 [online chatbox].)

The only relevant California case stated that “several federal courts have refused to dismiss or summarily adjudicate a Penal Code section 632.7 claim based merely on the fact that the defendant used VoIP technology,” and denied summary adjudication on that ground. (Gruber v. Yelp Inc. (2020) 55 Cal. App. 5th 591, 612 [rejecting summary adjudication of Cal. Pen. Code § 632.7 claim based on the argument that the subject communication involved VOIP technology].) Defendant cites only a single, non-binding federal case that granted summary judgment on the grounds that the VOIP phone system at issue was not covered by Cal. Pen. Code § 632.7. (Jackson v. Papa John's Int'l Inc. (N.D. Cal. June 23, 2026) No. 23-CV-01933-LB, 2026 WL 1805155, at *6.) The court declines to reach the factual issue of whether Defendant’s specific system is covered by Cal. Pen. Code § 632.7 at the pleading stage.

Defendant also complains that the FAC does not specify exactly what telephonic device Defendant used when Plaintiff called Defendant, but cites to no binding case law requiring such specificity. In the FAC, Plaintiff alleges that “the customer service representative who answered his call was [] using a Telephonic Communication System Device,” which Plaintiff defines as the telephonic communication devices enumerated in California Penal Code § 632.7 (i.e. two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone). (FAC ¶¶ 3, 16.)

As Plaintiff points out, the precise make, model, and configuration of the equipment sitting on the other end of Defendant’s customer service line is a matter peculiarly and exclusively within Defendant’s knowledge.

“[T]he particularity of pleading required depends upon the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff, and that less particularity is required where the defendant may be assumed to possess knowledge of the facts as least equal, if not superior, to that possessed by the plaintiff.” (Burks v. Poppy Const. Co. (1962) 57 Cal. 2d 463, 474.) “[L]ess specificity is required in pleading matters of which the defendant has superior knowledge.” (Thomas v. Regents of Univ. of California (2023) 97 Cal. App. 5th 587, 611.) “A plaintiff ‘need not particularize matters ‘presumptively within the knowledge of the demurring’ defendant.’” (Id.) “[P]leading ultimate facts is sufficient since the particularized knowledge lies with the defendant and the defendant does not need more information for evaluation of the

action brought against it.” (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 550.) Defendant is sufficiently on notice as to the claim against it, and to the extent it disputes Plaintiff’s factual allegations, that dispute is not an issue that can be resolved at the pleading stage.

Defendant also argues that the only communication systems Plaintiff specifically identifies in the FAC are outside the scope of Cal. Pen. Code § 632.7. Plaintiff alleges that Defendant “intentionally utilized certain computer hardware and/or software technology and/or other equipment (“Call Recording Technology”) to execute a company-wide policy and practice of recording inbound and outbound telephone communications with callers[.]” (FAC ¶ 13.) However, this allegation does not preclude the possibility that Defendant uses one of the enumerated telephonic communication devices identified in Cal. Pen. Code § 632.7 alongside this technology for recording purposes.

Defendant also objects to Plaintiff’s allegations being based on information and belief, but “Plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Pridonoff v. Balokovich (1951) 36 Cal. 2d 788, 792.) Here, Plaintiff dialed a telephone number and spoke to a Boot Barn customer service representative. (FAC ¶ 12.) Those facts are sufficient to state on information and belief that “the customer service representative who answered his call was also using a Telephonic Communication System Device.” (Id. ¶ 16.)

Based on the foregoing, the court overrules Defendant’s demurrer as the FAC adequately states a claim against Defendant for violation of Cal. Pen. Code § 632.7.

Defendant is ordered to give notice of this ruling to Plaintiff.

11 30-2026-01566203 Defendants Urth Caffe Corporation, Urth Payroll Services, Inc., Figueiredo vs. Urth Urth Caffe Associates VIII, LLC, Urth Old Towne Development, Caffe Corporation LLC, Urth Caffe Associates VII, LLC, Urth Caffe Associates IX, LLC, Urth Caffe Associates X, LLC, Urth Expansion Holdings, LLC, and Alfredo Garcia’s motion to compel arbitration is GRANTED. Plaintiff Anabelle Figueiredo is ordered to arbitrate her individual claims. The class claims are dismissed without prejudice. This case is otherwise STAYED pending completion of arbitration.

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