www.timothywalton.com/fergusonvfriendfinders.html
Conru, a California resident, and 50 doe defendants (jointly, respondents). Specifically, Ferguson alleged that "the subject lines of the email messages failed to begin with the characters 'ADV:'; In his second cause of action, Ferguson alleged respondents were liable for trespass for taking possession and control of plaintiffs' "computer processors, hard drives, Random Access Memory and Internet email accounts" without plaintiffs' consent by sending the unsolicited commercial e-mail advertising. Citing these same reasons, Ferguson alleged a fourth cause of action for unlawful advertising practices. Proceedings in the Lower Court Respondents filed their demurrer to the complaint on March 3. They argued that Ferguson failed to state a cause of action for negligence, that sending unsolicited email cannot constitute a trespass as a matter of law, and that Ferguson's third and fourth causes of action for unfair business practices and unlawful advertising practices were flawed in several respects. A hearing on respondents' demurrer was held on March 30. At that hearing, the trial court indicated that Ferguson had failed to state a cause of action for negligence because respondents' conduct was intentional, and that Ferguson could not prove that plaintiffs were actually damaged by the alleged trespass. After taking the matter under submission, obtaining additional briefing on this discrete issue, and holding a second hearing on May 18, the court issued an order on June 7.
The statute applies equally to in-state and out-of-state actors who do business in California and transmit unsolicited commercial e-mail (UCE) to a California resident, via equipment located in California. In Healy, the United States Supreme Court struck down provisions of a Connecticut statute that required out-of-state shippers of beer to affirm that their posted prices for products sold to Connecticut wholesalers were no higher than the prices at which those products were sold in States bordering Connecticut. The Healy Court found that Connecticut's price affirmation statute violated the dormant Commerce Clause because it discriminated against brewers and shippers of beer engaged in interstate commerce and it directly controlled commerce occurring wholly outside the State. Third, to determine whether a statute impermissibly controls commerce outside the State, a court should evaluate the practical effect of the statute by considering "the consequences of the statute itself . It expressly applies only when UCE is sent to a California resident by means of an electronic-mail service provider who has equipment in the State. It regulates individuals and entities who do business in California, utilize equipment located in California and send UCE to California residents. The equipment used by electronic-mail service providers does have a geographic location. And e-mail recipients are people or businesses who function in the real world and have a geographic residence. In that case, the court found that a state law making it a crime to use a computer to disseminate obscene materials to a minor violated the dormant Commerce Clause. The statute at issue in Pataki applied to all Internet activity and the court's comments about the absence of geographic sensitivity were made it that context. It regulates e-mail users who send UCE to California residents via equipment located in California. Respondents argue that, even if e-mail recipients do have geographic residences, it is simply not possible for senders of UCE to determine the residency of any particular e-mail recipient. Second, the record does not support respondents' claim that it is impossible to determine the geographic residence of a UCE recipient. Both the Attorney General and Ferguson dispute this contention. They suggest that lists of e-mail addresses sorted by geographic residence exist already or can be created and utilized by senders of UCE. Respondents have offered no evidence supporting a contrary conclusion.
It also regulates the content of UCE sent to State residents by imposing truthfulness and disclosure requirements on UCE senders. Like traditional paper "junk" mail, UCE can be annoying and waste time. But courts and commentators have acknowledged that UCE causes many additional problems. Internet Service Providers (ISPs), incur significant business related costs accommodating bulk e-mail advertising and dealing with the problems it creates. ISPs attempt to defray those costs by charging higher fees to their customers. Individuals who receive UCE can experience increased Internet access fees because of the time required to sort, read, discard and attempt to prevent future sending of UCE. If the individual undertakes this process at work, his or her employer suffers the financial consequences of the wasted time. Such deceptive tactics increase the already significant costs that UCE imposes on Internet users. Likewise, e-mail recipients cannot easily identify unwanted UCE or promptly or effectively contact senders of such messages to request that future mailings not be sent. Furthermore, by using fraudulent domain names and return e-mail addresses, senders misdirect responses to their messages to innocent third parties who can suffer serious economic consequences. Among other things, the Washington statute prohibits deceptive subject line descriptions and misrepresentation of the sender's identity. Deceptive UCE can be difficult if not impossible to identify without opening the message itself. Having to take that extra step can be more than a waste of time and money. Studies indicate that UCE often contains offensive subject matter, is a favored method for pursuing questionable if not fraudulent business schemes, and has been successfully used to spread harmful computer viruses. Adequacy of Ferguson's Complaint We next consider whether the complaint allegations support the four causes of action that Ferguson attempted to allege. Standard of review When a judgment is based on an order sustaining a demurrer without leave to amend, the appellant can establish error by showing either that the demurrer was erroneously sustained or that sustaining the demurrer without leave to amend was an abuse of discretion. For purposes of our review, we assume those allegations to be true. Trespass In his second cause of action, Ferguson attempted to state a claim for trespass. As respondents concede, some courts have found that sending UCE can constitute a trespass to chattel. But Ferguson did not allege facts that would establish that respondents caused a tangible physical intrusion upon plaintiffs' property or that respondents' conduct caused actual physical damage to plaintiffs' property. Thus, in its present form, the complaint does not allege a cause of action for trespass to chattel. However, Ferguson contends that he could allege sufficient facts to support this claim if given the opportunity to amend his complaint. Ferguson maintains that receiving an e-mail has a physical effect on computer hardware and that downloading e-mail and then deleting it by a process called "fragmentation" causes actual physical damage to a computer system. Respondents dispute the factual underpinnings of this argument. They also argue that cases recognizing a trespass to chattel theory relating to unwanted UCE are factually distinguishable because of the quantity of UCE involved. The parties' factual disputes are simply not relevant at this stage in the litigation. Nor are they sound grounds for sustaining the trial court's demurrer ruling. To the contrary, in light of Ferguson's articulated theory of actual physical damage, the trial court should have granted him the opportunity to amend this cause of action to attempt to state a claim for trespass to chattel. Negligence Ferguson's first cause of action purported to state a claim for negligence. The elements of a cause of action for negligence are: " a legal duty to use due care; However, Ferguson did not allege any facts that would give rise to such a duty. On appeal, Ferguson maintains he alleged facts to satisfy this element by invoking the presumption of negligence that can arise when a s...
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