Jane Heiting v. NetApp, Inc.

(Stanley Mosk Courthouse: Dept. 408) September 2, 2026 DEPARTMENT 408 LAW AND MOTION RULINGS

Demurrer to Plaintiff Jane Heiting's Complaint is SUSTAINED without leave to amend.

I. BACKGROUND

On October 16, 2025, Plaintiff Jane Heiting ("Plaintiff") filed a complaint against Defendant NetApp, 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 4, 2026, pursuant to Plaintiff's request, Does 1 through 25 were dismissed with prejudice.

On February 23, 2026, pursuant to Plaintiff's request, default was entered against Defendant.

On May 22, 2026, Default Judgment was entered in favor of Plaintiff and against Defendant in the amount of $5,612.09.

On June 8 and 12, 2026, the court vacated the default and Default Judgment entered against Defendant.

On July 27, 2026, Defendant filed this Demurrer to Plaintiff's complaint.

On August 20, 2026, Plaintiff filed an opposition.

On August 26, 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 complaint 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. [1]

1. Request for Judicial Notice

Defendant's request for judicial notice is granted.

"A court may properly take judicial notice of its own records. (Evid. Code, Sec. 452, subd. (e).)" (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)

2. Penal Code section 638.51

Penal Code "[s]ection 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 Plaintiff fails to adequately allege that the purported tracking software, X Pixel, is a "trap and trace device" as defined under Section 638.51. (Demurrer, at pp. 9-13.)

The complaint alleges that Plaintiff visited Defendant's website, www.instaclustr.com ("Website"), on December 28, 2025 [2], where Defendant deployed X Corp.'s tracking Software Development Kit ("X Pixel") which captures electronic impulses to identify Website visitors without user consent, functioning as an unlawful trap and trace device under the California Trap and Trace Law. (Complaint, P.P. 1, 11-14.)

The complaint further alleges that X Pixel captures electronic impulses sent from the visitor's computer to the Website, which contain device identifiers, browser specifications, network routing information and session behaviors. (Id., P. 16.)

Plaintiff also alleges that X Pixel's only purpose is to identify the source of the website visit. (Id., P. 18.)

A "pen register" is defined as "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, Sec. 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, Sec. 638.50, subd. (c).)

Under the statutory scheme of the California Invasion of Privacy Act ("CIPA"), the wiretapping statute prohibits individuals from using a wiretap to learn the contents of a target's communications. (Pen. Code Sec. 631.)

The pen register statute prohibits the use of a device or process to record or discover only transmission information about those outgoing communications - for example, the phone numbers called by the target - but not the contents of the communications. (Pen. Code Sec. 638.50, subd. (b).)

The trap and trace statute prohibits the use of a device or process that discovers or records transmission information of incoming communications - for example, the phone numbers of calls made to the target - but not the contents of the communications. (Pen. Code, Sec. 638.50, subd. (c).)

The contrast between what constitute a trap and trace device versus what constitutes a "pen register" which can more readily be analogized to communications over the internet.

Historically, courts recognized that "[a] pen register is a mechanical device which records the numbers dialed from a telephone, but does not overhear oral communications or indicate whether the call was completed." (People v. Blair (1979) 25 Cal.3d 640, 654, fn. 11.)

Analogizing a pen register to the internet, a pen register would be a device or software installed onto Plaintiff's device that determines every other website - i.e., IP addresses - that Plaintiff visited after the pen register had been installed on Plaintiff's device.

In contrast, a trap and trace software would be software that Defendant installs onto Plaintiff's device that tracks who is contacting Plaintiff - such as a software that tracks the email addresses of incoming emails sent to Plaintiff.

This is not what Plaintiff alleges X Pixel does.

In relevant part, Plaintiff alleges that X Pixel is a trap and trace device because it captures electronic impulses sent from the visitor's computer to the Website, which contain device identifiers, browser specifications, network routing information and session behaviors. (Complaint, P. 16.)

Plaintiff at most alleges that the Website collects the IP addresses and other information of visitors incoming to Defendant's Website - the equivalent of Defendant using a trap and trace device on its own website, rather than on Plaintiff's device.

Plaintiff makes no allegation that Defendant's website puts any sort of device or tracker on Plaintiff that allows Defendant to monitor who else contacts Plaintiff - i.e., incoming electronic or other impulses to Plaintiff.

As such, Plaintiff fails to allege that Defendant's installation and use of X Pixel on its own website is a trap and trace device.

Accordingly, the demurrer is sustained without leave to amend.

IV. CONCLUSION

Defendant NetApp, Inc.'s Demurrer to Plaintiff Jane Heiting's Complaint is SUSTAINED without leave to amend.

[2] Defendant argues that Plaintiff's complaint fails to state a claim as the only alleged violation of Section 638.51 occurred after this action was filed. (Demurrer, at pp. 8-9.)

Defendant also argues that Plaintiff failed to allege that Defendant used the alleged device without a court order. (Id., at p. 9.)

In opposition, Plaintiff contends that there was an error as to the date of the Website visit where the year was incorrectly written as "December 28, 2025," as opposed to "December 28, 2024". (Opp., at p. 8.)

Plaintiff also contends that it is evident that Defendant does not have a court order. (Id., at pp. 8-9.)

The court notes that such errors are grounds enough to sustain the demurrer with leave to amend.

However, the court finds that there are more compelling arguments to sustain the demurrer without leave to amend as explained. | Home -->)" -->