HERR vs ROMER, et al.

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

23CV011844: HERR vs ROMER, et al. 12/03/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

The Demurrer of Defendants Phillip Romer and Sutter Health to the First Amended Complaint (FAC) of Plaintiff Kaeying Herr is ruled upon as follows.

Defendants’ request for judicial notice of this Court’s records is granted. (Evid. Code § 452, subd. (d).)

Factual Background

Plaintiff alleges she married Defendant Romer on April 14, 2014 and that the couple separated in April of 2020. (FAC ¶ 7.) She alleges that she and Defendant Romer initiated divorce proceeding shortly after separating and that those proceedings remain pending in the family law division of this Court. (Ibid; see FAC Exh. B.)

Plaintiff alleges that since 1994, Defendant Romer has been employed by Defendant Sutter Health as an information technology supervisor and manager. (FAC ¶ 8.) Plaintiff alleges that before and after their separation, Defendant Romer gained unauthorized access to her personal accounts and information, including installing “spyware” software on the personal computer. (FAC ¶¶ 11-21.) Plaintiff alleges that Defendant Romer had been “hacking, accessing and viewing her personal emails and non-marital bank accounts” prior to the couple’s separation. (FAC ¶ 11.)

Plaintiff further alleges that on the day he moved out of the couple’s marital home, Defendant Romer installed a “permanent version” of a spyware program called Spyrix on Plaintiff’s computer and “download[ed] and mov[ed] off [Plaintiff’s] computer the files he wanted to take with him.” (FAC ¶ 15.) Plaintiff alleges that although Defendant Romer “had physically left the marital house and left the Dell computer with [Plaintiff], Romer was still able to remotely connect to [Plaintiff’s] Dell computer.” (FAC ¶ 16.)

Plaintiff alleges that using the Spyrix software, Defendant Romer “continued to intentionally, systematically intercept private and privileged electronic communications, watch, follow, bug, scrutinize, and spy on” Plaintiff for a period of approximately one year and seven months. (Ibid.) Plaintiff alleges she discovered the installation of the Spyrix program on her computer through a forensic expert retained in connection with the divorce proceeding. (FAC ¶ 12, Exh. B.) Plaintiff also alleges that Defendant Romer “installed a keylogger on [Plaintiff’s] Dell computer, allowing Romer to capture every character [Plaintiff] typed with her computer keyboard, thereby, successfully gaining access to Herr’s passwords to her emails, bank accounts, and other personal accounts.” (FAC ¶ 18.)

Plaintiff alleges that Defendant Romer obtained unauthorized access to her communications with her family law attorney, as well as to her personal, financial, phone backup, phone contacts, phone messages, and medical accounts, which he accessed using “the Sutter Health Cloud application.” (FAC¶¶ 19-21.)

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23CV011844: HERR vs ROMER, et al. 12/03/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

Plaintiff also alleges that Defendant Romer connected her computer to Defendant Sutter Health’s computer network in order to use his work computer to surveil Plaintiff. (FAC ¶ 22.) Plaintiff alleges that Defendant Romer improperly accessed her personal information and invaded her privacy “while he was physically working on site at Sutter and using Sutter equipment to do so.” (FAC ¶ 23.) Plaintiff alleges that Defendant Sutter Health failed to supervise or monitor Defendant Romer’s conduct, resulting in harm to Plaintiff. (FAC ¶¶ 24-26.)

Plaintiff asserts seven causes of action: (1) Violation of Penal Code section 502 [Comprehensive Computer Data Access and Fraud Act (CDAFA)] against all defendants; (2) Violation of Business and Professions Code section 22947 et seq. [Consumer Protection Against Computer Spyware Act (Spyware Act)] against all defendants; (3) Invasion of Privacy and Intrusion of Solitude against all defendants; (4) Trespass to Chattel against all defendants; (5) Negligent Supervision against Defendant Sutter Health; (6) Negligent Infliction of Emotional Distress against all defendants; (7) Intentional Infliction of Emotional Distress against Defendant Romer.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 352.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co., supra, 19 Cal.4th at 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged. (Amarel, supra, 202 Cal.App.3d at 141.) “A court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 722, fn. 7.)

The Court is to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at

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318.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.)

Nonetheless, “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; see Sui v. Price (2011) 196 Cal.App.4th 933, 938.) “Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43–44, internal citations omitted.)

Discussion

Defendants demur to all seven causes of action.

Jurisdictional Challenge

Defendants argue generally that the demurrer must be sustained as to the entire FAC because the family law court, not this Court, has jurisdiction over this action. “After a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division.” (Askew v. Askew (1994) 22 Cal.App.4th 942, 961.) Citing this proposition, Defendants contend that this Court should decline to exercise jurisdiction here because “[t]o decide the [First Amended Complaint’s] causes of action, the Court or factfinder will have to determine who owned the Dell computer – a determination solely within the family law court’s jurisdiction.” (Opening Mem. 11:14-16.)

Defendants contend this is so because, in their view, Defendant Romer cannot be liable for violating the CCDAFA or the Spyware Act, or for any of Plaintiff’s tort claims, if he is determined to be the “owner” of the Dell computer in question. Defendants argue: “If Romer owned the computer, for example, Plaintiff’s Spyware Act and CDAFA claims fail as a matter of law: Romer was the computer’s ‘authorized user’ and necessarily had ‘permission’ to do what he did.” (Opening Mem. 11:20-22.) Defendants further contend that Plaintiff’s causes of action for invasion of privacy, trespass to chattel, and negligent and intentional infliction of emotional distress fail because they “rely solely on allegations that Plaintiff, not Romer, owned the Dell computer and that he lacked ‘authorization’ to install Spyrix.” (Opening Mem. 12:1-11.)

Defendants also argue that the FAC implicates the dissolution proceeding because (i) Plaintiff alleges in the FAC that Defendant Romer’s conduct has reduced the value of the Dell computer, (ii) that in the family law action Plaintiff has accused Defendant Romer of “cyberstalking” under Penal Code § 646.9, and (iii) that Plaintiff alleges in the FAC that Defendant Romer improperly obtained emails between herself and her family law attorney. (Opening Mem. 12:12-13:11.)

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Thus, Defendants argue, the instant action is “inextricably intertwined” with the family law case and “this case is ‘merely family law waged by other means.’” (Opening Mem. 13:21-22, citing Neal v. Superior Court (2001) 90 Cal.App.4th 22, 24-27.)

Defendants are incorrect. The fact that the FAC’s causes of action may tangentially implicate the ownership of a single personal computer does not “transform [this] ordinary civil action into a family law motion, OSC, or other inherently family law proceeding.” (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1099.) Plaintiff’s claims do not raise any family law issues such as “marital status, child custody or spousal support.” (Ibid.) Critically, Plaintiff’s characterization of the computer in the pleadings as belonging to her for purposes of her claims in the FAC is not an attempt to obtain a determination whether it is “community or separate property” (ibid) or to obtain an order awarding her possession of the computer as part of a community property division. (See Askew v.

Askew, supra, 22 Cal.App.4th at p. 961.) Indeed, any determination by this Court as to the ownership of the computer for purposes of the claims alleged in the FAC would not affect the family court’s determination regarding the status of the computer as community or separate property, or the ultimate disposition of that property. (See Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 613 [the fact that family court considered evidence of domestic violence in spousal support determination did not preclude later tort action for damages: “the same primary right does not underlie a request for spousal support in a marital dissolution action and a tort action for damages”]; see also Askew v.

Askew, supra, 22 Cal.App.4th at p. 965 [spouse’s civil action barred where it was predicated on an assumption of “the separate character” of certain property, a matter within the jurisdiction of the family court.])

Further, Plaintiff’s allegations that Defendant Romer’s conduct reduced the value of the computer (FAC ¶ 47) and that Defendant Romer improperly obtained emails between Plaintiff and her divorce counsel in order to “gain an advantage over the divorce proceeding” (FAC ¶ 19) also do not transform this case into a family law matter. Nor do Plaintiff’s arguments to the family law court that Defendant Romer’s conduct constitutes “cyberstalking” pursuant to Penal Code § 646.9, subdivision (a), a statute not raised in the FAC, mean that the instant case is “inextricably intertwined” with the parties’ divorce action.

Put another way, if the parties had never been married, the claims in the FAC would stand alone, i.e., they do not depend upon or refer to any proceedings or determinations in the family court action. (Cf Burkle v. Burkle (2006) 144 Cal.App.4th 387, 395 [spouse was not permitted to bring a separate civil action to enforce an interim order in a pending dissolution action]; and cf Neal v. Superior Court (2001) 90 Cal.App.4th 22, 26 [spouse not permitted to bring separate civil action to enforce family law judgment and for claims based on statements made in family law proceedings].)

The Court notes that Defendants also cite no authority permitting the family law division of this Court to exercise jurisdiction over the claims alleged in the FAC. Indeed, the jurisdiction of the family court does not include tort claims for damages: “Given finite family law jurisdiction, a tort action claiming damages cannot be joined with or pleaded in a dissolution proceeding.”

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(Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339; see also Fam. Code, § 2020 [limiting family court jurisdiction to enumerated matters].) Thus, the family law division could not adjudicate the FAC in any event. Nor would a jury trial on such causes of action be held in the family law division. In short, the issues raised in the FAC do not implicate or interfere with any determinations properly within the jurisdiction of the family court. The Court finds that Defendants’ demurrer on jurisdictional grounds is properly overruled on this basis alone. Nevertheless, the Court addresses the parties’ additional arguments regarding jurisdiction as they supply additional grounds warranting overruling of Defendants’ demurrer.

As Plaintiff correctly argues, legal ownership of the computer in question is not determinative of the causes of action alleged in the First Amended Complaint. The CDAFA authorizes a cause of action to recover expenses relating to investigating unauthorized computer access. (Pen. Code, § 502, subd. (e)(1); see also Verio Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315, 1321, n. 3.) Nothing in the CDAFA equates legal ownership with authorization for purposes of liability. (See Pen. Code § 502, subd. (c).)

Further, the CDAFA applies even where the violator has authorization to access a computer system, but “uses his or her authorized access to a computer system to disrupt or deny computer services to another lawful user.” (People v. Childs (2013) 220 Cal.App.4th 1079, 1104.) Moreover, the CDAFA states that anyone who “[k]nowingly accesses and without permission takes, copies, or makes uses of any data from a computer, computer system, or computer network ” is guilty of a public offense. (Pen. Code, § 502, subd. (c)(2), italics added.)

The ownership of the computer is itself is irrelevant to the question of whether Defendant Romer was authorized to access Plaintiff’s data, and thus is not determinative of whether Defendant Romer violated the CDAFA.

Similarly, the Spyware Act prohibits the installation and use of certain surveillance software by “[a] person or entity that is not the authorized user.” (Bus. & Prof. Code, § 22947.2.) The statute defines “Authorized user” as “a person who owns or is authorized by the owner or lessee to use the computer,” meaning that liability under the Spyware Act turns on whether Defendant Romer was authorized to use the Dell computer, not who is the legal owner. (Bus. & Prof. Code, § 22947.1, subd. (b), italics added.)

As Plaintiff argues, she has alleged she owned the computer (FAC ¶ 28), which the Court accepts as true for purposes of demurrer. As noted above, while the determination of whether Defendant Romer was authorized to install spyware on the Dell computer may involve the submission of evidence regarding the computer’s legal ownership, this does not infringe upon the family court’s jurisdiction to make determinations about the community or separate character of the parties’ property.

For the same reasons, none of the remaining tort causes of action, (invasion of privacy, trespass to chattels, negligent and intentional infliction of emotional distress) require a determination of the ownership of the computer that would implicate the jurisdiction of the family court. As discussed above, the relevant question is whether Defendant Romer was authorized to access Plaintiff’s data and personal information in the manner she alleges, which does not turn on the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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computer’s legal ownership for purposes of family law proceedings. The authority Defendants cite is inapposite. Regarding the invasion of privacy claim, Defendants misread Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, which Defendants appear to cite for the purported proposition that Plaintiff must “own” the computer in order to have a privacy interest in its data. In fact, that decision states that the plaintiff “cannot have a legally protected privacy interest or a reasonable expectation of privacy with respect to communications that he did not own or hold privileged.” (Id. at p. 843, italics added.) Again, the question of the ownership of the computer is separate from the ownership of the data, and Plaintiff adequately alleges an interest in the private information she claims Defendant Romer accessed.

For the multiple reasons explained above, Defendants’ demurrer on the grounds that this Court lacks jurisdiction is overruled.

First Cause of Action - Violation of Penal Code section 502 [Comprehensive Computer Data Access and Fraud Act]

Defendants also demurrer to the First Cause of Action on the grounds that it fails to allege facts sufficient to state a cause of action. Defendants argue that notwithstanding Plaintiff’s allegation in the FAC that she owned the Dell computer, certain exhibits attached to the FAC contain Defendant Romer’s declarations that he in fact is the owner of the device. Defendants contend that these exhibits establish Defendant Romer’s ownership of the computer, and thus, because he is the computer’s “owner,” he cannot have committed unauthorized access of its contents in violation of the CDAFA.

The factual dispute regarding the computer’s ownership cannot be resolved on demurrer. Plaintiff’s allegation that she is the owner is sufficient for pleading purposes. Moreover, as discussed above, liability for violation of the CDAFA does not necessarily turn on the legal ownership of the computer system in question. Accordingly, the demurrer on this basis is overruled.

Defendants separately demurrer to the degree the First Cause of Action is asserted against Defendant Sutter Health. Defendants argue that the FAC alleges insufficient facts to invoke vicarious liability because it does not allege that Defendant Romer’s conduct was within the scope of his employment or was foreseeable to Defendant Sutter Health. Under the respondeat superior form of vicarious liability, “by default, ‘an employer may be held vicariously liable for torts committed by an employee within the scope of employment.’” (Presbyterian Camp & Conference Centers, Inc. v.

Superior Court (2021) 12 Cal.5th 493, quoting Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) An employee’s conduct “falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.” [quotation, citation omitted].)

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Here, Plaintiff alleges that Defendant Romer used the Spyrix software to access the Dell computer from his work desk and access his work desk remotely using the Dell computer because “remoting into computers is part of his job at Sutter.” (FAC ¶ 13.) She further alleges that Defendant Romer connected her “Dell computer to Sutter’s computer or information systems network” in order to “use his Sutter work computer to watch, monitor, and spy on [Plaintiff].” (FAC ¶ 22.) Plaintiff also alleges that privacy violations by employees are reasonably foreseeable to Defendant Sutter Health, which conducts employee trainings on the topics of information security and ethics, among others. (FAC ¶ 26.)

Plaintiff alleges: “It is foreseeable by Sutter that its employee(s) may abuse his/her trust, authority or job duty or position to access for violate the rights or privacy of others.” (FAC ¶ 26.) This is sufficient, for pleading purposes, to allege that Defendant Romer’s conduct was within the scope of his employment because it was incidental to his duties as an employee and reasonably foreseeable to his employer, given its operations. (Cf Perry v. County of Fresno (2013) 215 Cal.App.4th 94 [dismissing respondeat superior theory on summary judgment].)

The demurrer to the First Cause of Action is overruled.

Second Cause of Action – Spyware Act

Defendants demur to the Second Cause of Action on the same grounds as the First. For the same reasons, the demurrer to the Second Cause of Action is overruled.

Third Cause of Action – Invasion of Privacy

In challenging the Third Cause of Action, Defendants argue that “the FAC and its exhibits establish that Romer owned and controlled the Dell computer” and “Plaintiff therefore had no legally protected privacy interest and no reasonable expectation of privacy when using the computer.” (Opening Mem. 17:9-11.) As discussed above, the factual dispute regarding the ownership of the computer is not properly resolved on demurrer, and, in any event, the legal ownership of the computer is not determinative of Plaintiff’s privacy interest in the data stored thereon or accessed via the computer.

Defendants argue that the FAC does not adequately allege vicarious liability for the Third Cause of Action as against Defendant Sutter Health. As discussed above, Plaintiff has sufficiently alleged that Defendant Romer’s conduct was within the scope of his employment.

The demurrer to the Third Cause of Action is overruled.

Fourth Cause of Action – Trespass to Chattels

Defendants demur to the Fourth Cause of Action on the same grounds as the Third. For the same

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reasons, the demurrer to the Fourth Cause of Action is overruled.

Fifth and Sixth Causes of Action – Negligent Supervision and Negligent Infliction of Emotional Distress

As to Defendant Romer, Defendants appear to demur to the Fifth and Sixth Causes of Action on the same grounds discussed above, as Defendants argue that “the negligence causes of action are derivative of Plaintiff’s deficient CDAFA, Spyware Act, invasion-of-privacy, and trespass-tochattel claims.” (Opening Mem. 19:2-3.) For the reasons discussed above, the demurrer as to Defendant Romer is overruled.

As to Defendant Sutter Health, Defendants argue that Plaintiff failed to allege that Defendant Sutter Health owed her a legal duty because Plaintiff did not have a business relationship with Sutter Health and Defendant Sutter Health did not know about the Defendant Romer’s purported misconduct. However Plaintiff alleges that Defendant Sutter Health did know about Defendant Romer’s conduct: “Sutter management and/or executive leadership, though then Director of IS Tech Services Implementations, Tele Business Systems Management, Russell Townsend, authorized Romer to work remotely from [Plaintiff’s] Dell computer at home and installed and used the Spyrix software to remotely access and control [Plaintiff’s] Dell computer from Romer’s work station through Sutter’s information systems network.” (FAC ¶ 51.)

Plaintiff further alleges that Defendant Sutter Health “has a duty to properly supervise its employees and they failed to do so here.” (FAC ¶ 52.) Defendant Sutter Health’s knowledge of Defendant Romer’s conduct, and any legal duties flowing therefrom, present disputed fact issues that are not properly resolved on demurrer. “Whether an employer has ratified an employee’s conduct is generally a factual question.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 170.)

The demurrer to the Fifth and Sixth Causes of Action is overruled.

Seventh Cause of Action – Intentional Infliction of Emotional Distress

Defendants first demur to this cause of action on the grounds that Defendant Romer is the “owner” of the computer. For the reasons discussed above, this argument fails.

Defendants also argue that the FAC fails to allege “extreme and outrageous” conduct sufficient to support a claim for intentional infliction of emotional distress. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-29.) The law

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limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1489.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Here, Plaintiff’s allegations that Defendant Romer electronically surveilled Plaintiff without her knowledge or consent for over a year, including installing a keystroke logger and obtaining her private emails, medical, and financial information, “can reasonably be found to be outrageous” for purposes of stating a claim for intentional infliction of emotional distress. (Berkley v. Dowds, supra, 152 Cal.App.4th at p. 534.)

The demurrer to the seventh cause of action is overruled.

Disposition

Defendants’ demurrer is OVERRULED.

Defendants shall file and serve an answer no later than December 16, 2024. This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)