Kirshner vs. 3 Day Blinds LLC

5

Demurrer to Plaintiff’s First amended Complaint is CONTINUED to June 29, 2026, at 1:45 p.m. in Department C15.

3 Funding Capital Corp LLC vs. Garfield Langmuir – Logan

2024-01437501 1. Motion for Leave to File Amended Complaint 2. Case Management Conference

Continued to 07/13/2026, 1;45pm, Department C15 4 Kirshner vs. 3 Day Blinds LLC

2025-01527621 1. Demurrer to Complaint 2. Motion to Strike

Demurrer Defendant 3 Day Blinds, LLC’s demurs to the Complaint. Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083 and Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805 provide an in depth discussion of California Business & Professions Code § 17529.5 and the CAN-SPAM Act: “This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.” (15 U.S.C., § 7707, subd. (b)(1) [CAN-SPAM Act].)

Thus, the CAN-SPAM Act preempts state law regarding commercial email advertising except where there is false or deceptive messaging. Here, Plaintiff alleges the email’s header was false or deceptive. (Compl., ¶ 16(a).) Thus, Plaintiff’s claims are not preempted.

Defendant next argues the allegations are insufficient to constitute falsity or deception pursuant to California Business & Professions Code § 17529.5. Defendant claims there is no requirement the “From” field identify the sender’s domain. A single email with a traceable domain name which does not identify the sender or the advertiser, even if the domain name is “ ‘random,’ ‘varied,’ ‘garbled,’ and ‘nonsenscial’ when viewed in conjunction with domain names used in other email,’ ” does not constitute a false or deceptive header under Section 17529.5. (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 346-347.)

“The email violates the “forged header” prong of California Business & Professions Code § 17529.5(a)(2) because the “From” line falsely purports to identify the sender as “hwedxafzlgamfhoy@makelaio.com,” which is a nonsensical address that is materially misleading. The domain name and display identity do not accurately reflect the actual advertiser or the true initiator of the commercial email, but instead obscure their identity behind an unrelated or deceptive source. This constitutes a forged, misrepresented, or falsified header. Under § 17529.5(a)(2), such a forged header is unlawful as it is used to evade detection, mislead consumers, and disguise the origin of the advertisement.” (Compl., ¶ 16a.)

Plaintiff argues in opposition, “makelaio.com” is a fake domain which is not registered and does not identify the actual sender. However, Paragraph 16a does not seem to allege this. Plaintiff did not allege “makelaio.com” is not a registered domain and is thus untraceable. Therefore, it is not clear the Complaint is alleging more than a single nonsensical header.

Tentative Ruling: Defendant’s demurrer to the Complaint is sustained with 20 days leave to amend.

Motion to Strike Defendant 3 Day Blinds, LLC’s moves to Strike Plaintiff’s prayer for punitive damages. Defendant has not provided any authority which prohibits a punitive damages award in a claim under California Business & Professions Code § 17529.5. Therefore, at this time, the Court declines to prohibit punitive damages absent any supporting authority.

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Additionally, “[i]n passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.)

A demand for punitive damages for the commission of any tort requires more than the mere allegation of the “oppression, fraud, and malice” language found in Civil Code section 3294. (See Perkins v Superior Court (1981) 117 Cal.App.3d 1, 6-7.) “[F]acts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) The facts alleged must show the defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.)

Section 3294, subdivision (c) defines malice, oppression and fraud as follows: “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

Plaintiff has failed to plead adequate facts to support a claim for punitive damages. Plaintiff has failed to plead any facts to support their conclusory claim Defendant intended in to injure Plaintiff. Plaintiff points to Paragraphs 2, 16a, and 18 in the Complaint. However, none of those paragraphs make any factual allegations as to Defendant’s intent. Next Plaintiff claims violating a civil code section constitutes despicable conduct. However, this would implicate punitive damages in any civil action and the Court declines to interpret Section 3294 so liberally.

Tentative Ruling: Defendant’s motion to strike punitive damages is GRANTED.