Thompson v. Orange County Transportation Auth. CA4/3

Filed 10/6/21 Thompson v. Orange County Transportation Auth. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HARVEY J. THOMPSON III,

Plaintiff and Appellant, G059301

v. (Super. Ct. No. 30-2019-01108804)

ORANGE COUNTY OPINION TRANSPORTATION AUTHORITY et al.,

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. McGrane, William McGrane and Matthew Sepuya; Jenkins Mulligan & Gabriel and Daniel J. Mulligan for Plaintiff and Appellant.

Woodruff, Spradlin & Smart, M. Lois Bobak and Patrick M. Desmond; Best Best & Krieger and Scott William Ditfurth; Lewis Brisbois Bisgaard & Smith and Stephen Heald Turner for Defendants and Respondents. INTRODUCTION Section 31490 of the Streets & Highways Code was enacted in 2010 to protect the “personally identifiable information” of motorists using toll roads. (Id. at subd. (a).)1 The multi-part statute details some of the ways the Legislature sought to accomplish this goal: for instance, by requiring transportation agencies to develop privacy policies, purge old consumer data, and largely refrain from marketing “products or services” to nonsubscribers. (Id. at subd. (k).) But there is only one place in the statute providing a remedy if it is violated: subdivision (q). This subdivision allows “a person whose personally identifiable information has been knowingly sold or otherwise provided in violation of” section 31490 to bring an action to recover, “[i]n addition to any other remedies provided by law,” either a $2,500 penalty per violation or actual damages. (Id. at subd. (q)(1).) Today we hold there can be no right of action under section 31490, subdivision (q) for placing a nonsubscriber’s name and address on the envelope of a letter already required by law to be mailed (even when the letter itself contains marketing language violating subdivision (k) of the statute). We therefore affirm the trial court’s ruling sustaining without leave to amend a demurrer against a purported class action complaint founded on such a theory. FACTS Appellant Harvey J. Thompson III must have been quite surprised one day in late 2018 when he received a notice of toll evasion from the 91 Express Lanes connecting Orange and Riverside Counties in Southern California. The 91 Express Lanes