Jones v. Skullcandy, Inc.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JULIE JONES, individually and on behalf
of similarly situated individuals,
Plaintiffs,
v.
SKULLCANDY, INC.,
Defendant.
Case No.: 25-CV-1759 JLS (BLM)
ORDER DENYING DEFENDANT
SKULLCANDY, INC.’S MOTION TO
DISMISS PLAINTIFF’S
COMPLAINT
(ECF No. 2)
Presently 	before 	the 	Court 	is 	Defendant 	Skullcandy, 	Inc.’s 	(“Skullcandy” 	or
“Defendant”) Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 2). Also before
the Court is Plaintiff Julie Jones’s Opposition to Motion to Dismiss (“Opp’n,” ECF No. 10),
and Skullcandy’s Reply in Support of Motion to Dismiss Plaintiff’s Complaint (“Reply,”
ECF No. 11). After reviewing Plaintiff’s Complaint (“Compl.,” ECF No. 1-2, Ex. A), the
Parties’ arguments, and the relevant law, the Court DENIES Skullcandy’s Motion (ECF
No. 2).
BACKGROUND
Defendant 	owns 	and 	operates 	an 	e-commerce 	website, 	Skullcandy.com 	(the
“Website”), selling headphones and audio equipment. Compl. ¶¶ 1–2. Plaintiff, a purchaser
of Skullcandy earbuds and a Website user, id. ¶ 119, alleges that Defendant “chose to install
certain invisible code including the Meta Pixel, Google DoubleClick[,] and Google
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Analytics (the ‘Tracking Technologies’), which capture users’ [personally identifiable
information] and communications with the Website and transmit[s] this data to Meta
Platforms, Inc. (‘Meta’ or ‘Facebook’) and Alphabet, Inc. (‘Google’),” id. ¶ 4. 	Plaintiff
alleges that Defendant’s Tracking Technologies “allow third parties like Google and
Facebook to secretly monitor browsing activity of unsuspecting customers who use
Defendant’s Website to review and purchase Skullcandy products.” 	Id. ¶ 5. 	Plaintiff
concludes that by failing to obtain consent for these actions, Defendant has violated the
wiretapping and eavesdropping prohibitions in the California Invasion of Privacy Act
(“CIPA”)–§§ 631 and 632–and has been unjustly enriched. Id. ¶ 8; Cal. Penal Code §§ 631,
632.
I. 	California Invasion of Privacy Act
“CIPA was enacted to protect Californians’ privacy rights.” 	Fregosa v. Mashable,
Inc., No. 25-CV-1094-CRB, 2025 WL 2886399, at *2 (N.D. Cal. Oct. 9, 2025) (citing Cal.
Penal Code § 630). 	“CIPA . . . broadly prohibits different forms of wiretapping and
communication interception.” 	Saedi v. SPD Swiss Precision Diagnostics GmbH, No. 24-
CV-6525-WLH-E, 2025 WL 1141168, at *8 (C.D. Cal. Feb. 27, 2025). 	“Section 631 is
analogous to the Wiretap Act . . . and prohibits surreptitious eavesdropping.” 	Zarif v.
Hwareh.com, Inc., 789 F. Supp. 3d 880, 896 (S.D. Cal. 2025) (citing Cal. Penal Code §
631(a)). CIPA § 631(a) creates four avenues for relief:
(1) where a person “by means of any machine, instrument, or
contrivance, or in any other manner, intentionally taps, or makes
any unauthorized connection . . . with any telegraph or telephone
wire, line, cable, or instrument”;
(2) where a person “willfully and without consent of all parties
to the communication, or in any unauthorized manner, reads, or
attempts to read, or to learn the contents or meaning of any
message, report, or communication while the same is in transit”;
(3) where a person “uses, or attempts to use, in any manner, or
for any purpose, or to communicate in any way, any information
so obtained”; and
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(4) where a person “aids, agrees with, employs, or conspires with
any person or persons to unlawfully do, or permit, or cause to be
done any of the acts or things mentioned above.”
Riganian v. LiveRamp Holdings, Inc., 791 F. Supp. 3d 1075, 1091 (N.D. Cal. 2025)
(quoting Javier v. Assurance IQ, LLC, 649 F. Supp. 3d 891, 897 (N.D. Cal. 2023)). In sum,
§ 631(a) details “three distinct and mutually independent patterns of conduct: intentional
wiretapping, willfully attempting to learn the contents or meaning of a communication in
transit over a wire, and attempting to use or communicate information obtained as a result
of engaging in either of the previous two activities.”1 Tavernetti v. Superior Ct., 22 Cal. 3d
187, 192 (1978). The fourth clause of § 631(a) penalizes anyone who aids or abets “any of
the aforementioned prohibited acts.” Saedi, 2025 WL 1141168, at *8.
While historically § 631(a) applied to phone lines, courts have extended its reach to
include “new technologies,” including internet communications. See Matera v. Google Inc.,
No. 15-CV-4062-LHK, 2016 WL 8200619, at *21 (N.D. Cal. Aug. 12, 2016) (considering
the plain language of § 631, the legislative intent underlying CIPA to protect privacy, and
the California Supreme Court’s approach to applying statutes to new technologies and
concluding that § 631 applies to new technologies like email); Javier v. Assurance IQ, LLC,
No. 21-16351, 2022 WL 1744107, at *1 (9th Cir. May 31, 2022) (“Though written in terms
of wiretapping, Section 631(a) applies to Internet communications.”).
CIPA § 632(a) prohibits, “without the consent of all parties to a confidential
communication,” the use of “an electronic amplifying or recording device to eavesdrop
upon or record the confidential communication.” Cal. Penal Code § 632(a); see also Javier,
2022 WL 1744107, at *2 (“Section 632 ‘prohibits . . . a party . . . from recording [or
eavesdropping upon] a conversation without first informing all parties to the conversation
1 Plaintiff states in her Opposition that she “does not allege that the first or third predicate act described in
Cal. Penal Code. § 631(a) applies.” Opp’n at 26 n.5. Therefore, Plaintiff only alleges that Defendant aided
and abetted a third party “willfully attempting to learn the contents or meaning of a communication in
transit over a wire.” Tavernetti, 22 Cal. 3d at 192.
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that the conversation is being recorded.’” (quoting Kearney v. Salomon Smith Barney, Inc.,
39 Cal. 4th 95, 117 (2006)).
Further, § 637.2 states that,
(a) Any person who has been injured by a violation of [§§ 631
or 632] may bring an action against the person who committed
the violation for the greater of the following amounts:
(1) Five thousand dollars ($5,000) per violation.
(2) Three times the amount of actual damages, if any,
sustained by the plaintiff.
Plaintiff seeks statutory damages pursuant to § 637.2 for violations of §§ 631(a) and
632(a). Compl. ¶¶ 151, 160.
II. 	Tracking Technologies
Plaintiff alleges that Defendant uses multiple different forms of Tracking Technology
including the Meta Pixel, Facebook’s Conversions Application Programming Interface
(“CAPI”), and Google Analytics. Compl. ¶¶ 33, 39, 50. Plaintiff alleges that these Tracking
Technologies “pair event data and intercepted communications with users’ social media
identities,” by transmitting to third parties complete URLs which “disclos[e] the exact pages
that a customer visited and the order in which she visited them” as well as what a customer
purchases or adds to their cart. Id. ¶¶ 66–68. The user’s personally identifiable information
and 	browsing 	and 	purchase 	history 	are 	then 	used 	“to 	target 	users 	with 	specific
advertisements based on personal information that was intercepted without the user’s
knowledge or consent.” Id. ¶ 85.
A. Meta
Meta “surveils user activity both on and off its site” to bolster its advertising revenue
by using tools such as the Meta Pixel. Id. ¶¶ 28, 33. “The Meta Pixel ‘tracks the [webpage
users] and the types of actions they take.’” 	Id. ¶ 33 (internal citation omitted). 	“When a
user accesses a website hosting the Meta Pixel,” the software instructs the user’s browser
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to send a message to Meta’s servers containing the original GET request2 “along with
additional data that the Pixel is configured to collect” without “alerting the individual that
this is happening.” 	Id. ¶¶ 35, 38. 	“The user’s communications to the Website are
transmitted to Meta together with cookies and other unique identifiers that Meta can use to
match the communications to individuals who have a Facebook account, including the
c_user ID cookie which contains the user’s unique Facebook ID.” 	Id. ¶ 44. 	Meta’s
advertisers then use this data “to apply highly specific filters and parameters for their
targeted advertisements” to “reach people who have already shown interest in their business,
whether they’re loyal customers or people who have visited their app or visited their
website.” Id. ¶ 28 (cleaned up). These advertisers “can target existing customers directly,
and 	can 	also 	build 	‘Lookalike 	Audiences,’ 	which 	leverage 	information 	such 	as
demographics, interest, and behavior from your source audience to find new people who
share similar qualities, capturing this data by manually uploading contact information for
customers, or by utilizing Meta’s ‘Business Tools.’” Id. ¶ 29. Meta’s Business Tools tracks
“when a user visits a webpage,” that webpage’s URL and metadata, and “what content a
visitor views, adds to cart or purchases.” Id. ¶¶ 30–32.
Defendant has also allegedly implemented Meta Pixel’s “Advanced Matching”
feature “which allows website owners to send hashed customer data including [personally
identifiable information] (such as email addresses, phone numbers, and names) directly to
Meta through the Pixel’s code when users take specific actions on the website, such as
filling out a form with their personal information.” 	Id. ¶ 45. 	Plaintiff alleges that this
addition to the Meta Pixel allows Meta to “collect and transmit additional personally
identifiable information” beyond the standard Pixel collection, resulting in “significantly
2 A GET request is a type of HTTP Request. 	Compl. ¶ 34 n.14. 	“An HTTP Request is an electronic
communication a website visitor sends from his device’s browser to the website’s server.” Id. “The GET
request serves two purposes: it first tells the website what information is being requested and then instructs
the website to send the information back to the user. 	The GET request also transmits a referrer header
containing the personally-identifiable URL information.” Calhoun v. Google, LLC, 113 F.4th 1141, 1144
n.2 (9th Cir. 2024) (citing In re Facebook, 956 F.3d at 607).
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increasing the invasiveness of its tracking.” Id. ¶ 47.
Plaintiff also alleges that Defendant has installed Facebook’s CAPI on its website
servers. Id. ¶ 39. CAPI “is located on the website owner’s servers and is not a bug planted
onto the website User’s browser,” allowing website owners to “circumvent any ad blocks
or other denials of consent by the User that would prevent Pixel from sending website users’
data and communications to Facebook directly.” 	Id. ¶ 40. 	CAPI “links collected data
points” to a dataset ID that are processed like the events processed by the Meta Pixel. 	Id.
¶ 41.
B. Google
Plaintiff further alleges that Defendant has installed Google Analytics—“a leading
web analytics service that website owners use to understand user behavior, measure traffic,
and optimize site performance.” Id. ¶ 50. Google Analytics, once a website owner embeds
it into their webpage, “gathers insights about user interactions, such as page views, session
duration, and conversations, which can be leveraged for advertising and other marketing
activities.” Id. ¶ 51.
Defendant has also integrated “Google’s DoubleClick technology into its Website”—
which as first party trackers are able to bypass many consumer privacy controls such as
cookies blockers. 	Id. ¶¶ 55, 93. “Websites that install DoubleClick can correlate website
activity with Google’s vast repository of user data, including search history, YouTube
viewing 	patterns, 	and 	activities 	on 	other 	websites 	that 	use 	Google’s 	advertising
technologies.” 	Id. 	¶ 	58. 	When 	a 	user 	visits 	Defendant’s 	website, 	DoubleClick
“automatically assigns that user to specific advertising segments based on the products they
view, creating a detailed profile of their audio equipment preferences and their spending
habits,” which Plaintiff argues, “effectively authoriz[es] Google to maintain persistent
surveillance of Website visitors’ activities and connect those activities to Google’s vast
repository of user data.” Id. ¶ 60. Like the Meta Pixel, “the user’s communications to the
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website are transmitted to Google together with cookies3 and other unique identifiers that
Google can use to match the communications to individuals who use Google’s services.”
Id. ¶ 62. 	This “extensive tracking of user-identifiable data occurs in real time and is
automated through each user’s browser interactions with the Website.” Id. ¶ 100.
III. 	Plaintiff Julie Jones
Plaintiff is a resident of San Diego, California, who has had an account with Facebook
since 2007 and an account with Google since 2021—using the same name and email address
as her Skullcandy account. 	Id. ¶¶ 115–17. 	On February 7, 2025, Plaintiff accessed the
website and purchased headphones. Id. ¶ 119. Plaintiff alleges that she did not consent to
the disclosure of her personally identifiable information, that Defendant did not attempt to
obtain Plaintiff’s consent, that Defendant did not provide Plaintiff with an opportunity to
opt out of Defendant’s “data sharing scheme,” and that Defendant “never clearly and
conspicuously notified her” it was sharing her data with third parties. 	Id. ¶¶ 125–28.
Plaintiff alleges that Defendant has “received, retained, and benefitted from Plaintiff’s and
Class 	Members’ personal 	data” such 	as “[d]etailed browsing 	histories and product
preferences,” “[s]hopping cart contents and purchase behavior,” “[p]ersonally identifiable
information including names, email addresses, and Facebook/Google account identifiers,”
“[r]eal-time behavioral data showing consumer interests and purchasing patterns,” and
“[d]emographic and psychographic profiles that enable targeted marketing.” 	Id. ¶ 165.
Plaintiff alleges that Defendant has monetized this data by enhancing its advertising,
consumer targeting, and conversion rates. Id. ¶ 166.
/ / /
/ / /
/ / /
3 “Cookies are small text files sent by a website’s server to a user’s web browser and stored locally on the
user’s device which can be used to track, e.g., a user’s browsing and visit history, website interactions, user
input data, shopping behavior, session information, and more.” Walsh v. Dollar Tree Stores, Inc., No. 25-
CV-1601-SVK, 2025 WL 2939229, at *2 (N.D. Cal. Oct. 16, 2025) (internal quotation marks and citations
omitted).
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LEGAL STANDARD
I. 	Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and thus have an obligation to dismiss
claims for which they lack subject matter jurisdiction. 	Demarest v. United States,
718 F.2d 964, 	965–66 	(9th Cir. 	1983). 	The 	burden 	of 	establishing 	subject 	matter
jurisdiction is on the party asserting jurisdiction. 	Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). 	When a party files a 12(b)(1) motion, “there is a
presumption of a lack of jurisdiction until the plaintiff affirmatively proves otherwise.”
Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 (D. Ariz. 1996).
Under Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the
defense that the complaint lacks subject matter jurisdiction via a facial or factual attack. See
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, such as the one here,
“the challenger asserts that the allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction.” 	Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). 	A court resolves a facial attack as it would a Rule 12(b)(6) motion:
“Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the
plaintiff’s favor, the court determines whether the allegations are sufficient . . . to invoke
the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
II. 	Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the
defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To
survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	A claim is
facially plausible when the facts pled “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim
must be probable, but there must be “more than a sheer possibility that a defendant has acted
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unlawfully.” 	Id. 	Facts “‘merely consistent with’ a defendant’s liability” fall short of a
plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557).
Though 	this 	plausibility 	standard 	“does 	not 	require 	‘detailed 	factual
allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” 	Id. (quoting Twombly, 550 U.S. at 555). 	In other words, a
complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” 	Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). 	Put
differently, “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
Review under Rule 12(b)(6) requires a context-specific analysis involving the
Court’s “judicial experience and common sense.” 	Iqbal, 556 U.S. at 679. 	In performing
that analysis, “a district court must accept as true all facts alleged in the complaint, and draw
all reasonable inferences in favor of the plaintiff.” 	Wi-LAN Inc. v. LG Elecs., Inc.,
382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). 	“[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” 	Iqbal, 556 U.S.
at 679 (second alternation in original). 	If a complaint does not survive Rule 12(b)(6), a
court grants leave to amend unless it determines that no modified contention “consistent
with the challenged pleading could . . . possibly cure the deficiency.” 	Schreiber Distrib.
Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
DISCUSSION
On July 16, 2025, Defendant filed the current Motion moving for dismissal on several
grounds. Specifically, Defendant argues: (1) Plaintiff does not have standing because she
has failed to allege any cognizable harm; (2) Plaintiff fails to establish personal jurisdiction
over Skullcandy; (3) venue is improper in the Southern District of California, and (4)
Plaintiff fails to state a claim under CIPA and for unjust enrichment. 	Mot. at 2–4. 	The
Court addresses each argument in turn.
/ / /
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I. 	Standing
Defendant argues that Plaintiff does not have standing because she “fails to allege
any harm—physical, economic, or otherwise—resulting from her use of the Website.” Mot.
at 22. The Court disagrees.
“Article III of the Constitution confines the federal judicial power to the resolution
of ‘Cases’ and ‘Controversies.’” 	TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).
To establish standing, a plaintiff must show “(i) that he suffered an injury in fact that is
concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). At the pleading stage, “the
plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” 	Spokeo, Inc. v.
Robbins, 578 U.S. 330, 338 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
“Various intangible harms can . . . be concrete.” TransUnion LLC, 594 U.S. at 425.
“Chief among them are injuries with a close relationship to harms traditionally recognized
as providing a basis for lawsuits in American courts.” Id. (citing Spokeo, Inc., 578 U.S. at
340–41). The Ninth Circuit has found that “[t]he harms protected by [CIPA] bear a ‘close
relationship’ to ones that have ‘traditionally been regarded as providing a basis for a
lawsuit.’” 	Campbell v Facebook, 951 F.3d 1106, 1117 (9th Cir. 2020) (quoting Spokeo,
Inc., 578 U.S. at 340–41). 	Thus, CIPA “codif[ies] a substantive right to privacy, the
violation of which gives rise to a concrete injury sufficient to confer standing.” 	In re
Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020) (citing Campbell,
951 F.3d at 1117).
Here, Plaintiff has “adequately alleged an invasion of a legally protected interest that
is concrete and particularized.” 	Id. 	Plaintiff alleges that Defendant, through use of the
Tracking Technologies, has “received, retained, and benefitted from Plaintiff’s and Class
Members’ personal data” such as “[d]etailed browsing histories and product preferences,”
“[s]hopping cart contents and purchase behavior,” “[p]ersonally identifiable information
including names, email addresses, and Facebook/Google account identifiers,” “[r]eal-time
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behavioral data showing consumer interests and purchasing patterns,” and “[d]emographic
and psychographic profiles that enable targeted marketing.” 	Compl. ¶ 165. 	This is
sufficient to allege that Defendant’s “tracking and collection practices would cause harm or
a material risk of harm to their interest in controlling their personal information.” 	In re
Facebook, 956 F.3d at 598 (finding standing where the information collected “would
allegedly reveal an individual’s likes, dislikes, interests, and habits over a significant
amount of time, without affording users a meaningful opportunity to control or prevent the
unauthorized exploration of their private lives”); Shah v. MyFitnessPal, Inc., 25-CV-4430-
PCP, 2026 WL 216334, at *3 (N.D. Cal. Jan. 27, 2026) (finding standing where third parties
“surreptitiously obtained” a wide range of information about the plaintiffs, including their
“browsing history, visit history, [and] website interactions”); Krzyzek v. Openx Techs., Inc.,
No. 25-CV-5588-SI, 2026 WL 206855, at *3 (N.D. Cal. Jan. 27, 2026) (finding standing
where the defendant allegedly “compiled detailed user profiles” by collecting cookies, IP
addresses, email addresses, and “information regarding the users’ activity on the websites
and communications with the websites”); Casillas v. Six Flags Ent. Corp., No. 25-CV-
6824-CBM-PD, 2025 WL 3684543, at *9 (C.D. Cal. Dec. 15, 2025) (finding standing where
plaintiff’s “personal content information was tracked and collected, ‘including search
queries,’ ‘products searched for,’ ‘user interests,’ and ‘browsing habits’”); Pemberton v.
Rest. Brands Int’l, Inc., No. 25-CV-3647-JSC, 2025 WL 3268404, at *3–4 (N.D. Cal. Nov.
24, 2025 (same).
Therefore, Plaintiff has adequately alleged standing, and Defendant’s Motion is
denied insofar as it argues a lack of standing.
II. 	Personal Jurisdiction
Defendant next argues that Plaintiff has failed to establish personal jurisdiction over
Skullcandy under Rule 12(b)(2). Mot. at 17.
A. General Principles
Federal Rule of Civil Procedure 12(b)(2) allows for a responding party to move for
an action to be dismissed due to a lack of personal jurisdiction. “A court’s power to exercise
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jurisdiction over a party is limited by both statutory and constitutional considerations.” In
re Packaged Seafood Prods. Antitrust Litig., 338 F. Supp. 3d 1118, 1135 (S.D. Cal. 2018).
In this case, those considerations are one and the same. 	See Daimler AG v. Bauman,
571 U.S. 117, 125 (2014) (“California’s long-arm statute allows the exercise of personal
jurisdiction to the full extent permissible under the U.S. Constitution.”).
The Due Process Clause of the Fourteenth Amendment requires that a defendant
“have certain minimum contacts with [a forum state] such that the maintenance of the suit
does not offend ‘traditional notions of fair play and substantial justice.’” 	Int’l Shoe Co. v.
Washington, Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 	Courts have personal jurisdiction over a
party where they have either general or specific jurisdiction. 	See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). 	Specific jurisdiction relies on an
“‘affiliatio[n] between the forum and the underlying controversy,’ principally, activity or
an occurrence that takes place in the forum State and is therefore subject to the State’s
regulation.” Id. (citations omitted). Furthermore, specific jurisdiction is more limited than
general jurisdiction as it “is confined to adjudication of issues deriving from, or connected
with, the very controversy that establishes jurisdiction.” 	Id. (internal quotation omitted).
Only specific jurisdiction is at issue here. See Opp’n at 12; Reply at 2.
Plaintiff has the burden of establishing that jurisdiction is proper. 	CollegeSource,
Inc. v. AcademyOne Inc., 653 F.3d 1066, 1073 (9th Cir. 2011). “Where . . . the defendant’s
motion is based on written materials rather than an evidentiary hearing, the plaintiff need
only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.”
Yamashita v. LG Chem, Ltd., 62 F.4th 496, 502 (9th Cir. 2023) (quoting CollegeSource,
653 F.3d at 1073).
/ / /
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B. Specific Jurisdiction
In order to determine whether specific jurisdiction may be exercised over a non-
resident defendant, courts in the Ninth Circuit turn to the following three prong test:
(1) The 	non-resident 	defendant 	must 	purposefully 	direct 	his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he purposefully
avails himself of the privileges of 	conducting 	activities in the
forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates 	to the
defendant’s forum-related activities; and (3) the exercise of
jurisdiction must comport with fair play and substantial justice,
i.e. it must be reasonable.
Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (citations omitted). 	The
burden of satisfying the first two prongs belongs to Plaintiff, and “if the plaintiff fails to
satisfy either of these prongs, personal jurisdiction is not established in the forum State.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (citation
omitted) (cleaned up). “If the plaintiff succeeds in satisfying both of the first two prongs,
the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of
jurisdiction would not be reasonable.” 	Id. (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476–78 (2006)).
1. Purposeful Direction
A purposeful direction analysis is generally used in suits where “claims require[] an
intentional tortious or ‘tort-like’ act.” 	Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th
1085, 1091 (9th Cir. 2023) (citing Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 979 (9th
Cir. 2021)). 	A showing “that a defendant [purposefully] directed [its] conduct toward a
forum state . . . usually consists of evidence of the defendant’s actions outside the forum
state that are directed at the forum, such as the distribution in the forum state of goods
originating elsewhere.” 	Schwarzenegger, 374 F.3d at 803 (emphasis added). 	When
conducting a purposeful direction analysis, courts take into consideration the Calder
“effects” test, which requires a plaintiff to establish that the defendant: “(1) committed an
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intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant
knows is likely to be suffered in the forum state.” 	Id. (citing Dole Food Co., 303 F.3d at
1111); see also Calder v. Jones, 465 U.S. 783 (1984).
a. 	Intentional Act
“The first component of the Calder effects test requires an intentional act by the
defendant.” Zarif, 789 F. Supp. 3d at 888 (citing Ayla, 11 F.4th at 980). “This requirement
is met when the defendant acts ‘with an intent to perform an actual, physical act in the real
world, rather than an intent to accomplish a result or consequence of that act.’” Id. (quoting
AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1209 (9th Cir. 2020)). Operating a website
and selling physical products to the forum’s residents are both intentional acts. 	Id. (citing
Herbal Brands, 72 F.4th at 1091).
As Plaintiff contends, “Defendant operates its website to market and sell[] its
products, and it sold Plaintiff a pair of earbuds while she resided in San Diego, California.”
Opp’n at 13. 	Plaintiff further contends that Defendant intentionally “aided, agreed with,
employed, permitted, or otherwise enabled Google and Meta” to install and use the Tracking
Technologies to track user’s data, including users in California. 	Compl. ¶¶ 13; 147.
Defendant does not contest that this prong is satisfied. 	See Mot. at 19. 	Accordingly, the
intentional act prong is satisfied. 	See Zarif, 789 F. Supp. 3d at 888 (finding this prong
satisfied under similar facts).
b. Express Aiming
The second component of the Calder effects tests requires the plaintiff to allege a
defendant “expressly aimed” its intentional act at the forum. Ayla, 11 F.4th at 980. In the
Ninth Circuit opinion considering this issue, Briskin v. Shopify, Inc., 135 F.4th 739 (9th Cir.
2025), personal jurisdiction was found over a company that was alleged to “target California
consumers to extract, collect, maintain, distribute, and exploit for its own profit, not only
. . . California consumers’ payment information . . . but also all of the other personal
identifying information that it extracts from the software it permanently installs on their
devices without their knowledge or consent.” Briskin, 135 F.4th at 755–76.
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The Ninth Circuit, reconsidering the issue en banc, found that this prong is satisfied
when an interactive internet platform “deliberately reache[s] out beyond its home state by
knowingly installing tracking software onto unsuspecting Californians’ [devices] so that it
could later sell the data it obtained, in a manner that [is] neither ‘random, isolated, [n]or
fortuitous,’” id. at 759–60 (quoting Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592
U.S. 351, 359 (2021)), and “even if that platform cultivates a ‘nationwide audience[] for
commercial gain,’” id. at 758 (quoting Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d
1218, 1230 (9th Cir. 2011)). 	The court reasoned that “[p]re-internet, there would be no
doubt that the California courts would have specific personal jurisdiction over a third party
who physically entered a Californian’s home by deceptive means to take personal
information from the Californian’s files for its own commercial gain.” 	Id. at 756 (citation
omitted).
The court rejected the contention that the company did “not expressly aim its conduct
at California because it operates nationwide and thus is agnostic as to the location in which
it data-mines the consumers’ personal identifying information.” 	Id. at 757. 	Rather, “the
Supreme Court has considered and rejected the argument that because a nationwide
company is everywhere, it is jurisdictionally nowhere except in its principal place of
business and state of incorporation.” 	Id. (citing Ford Motor Co., 592 U.S. at 355, 363).
The court held that “an interactive platform ‘expressly aims’ its wrongful conduct toward a
forum state when its contacts are its ‘own choice and not random, isolated, or fortuitous.’”
Id. (quoting Ford Motor Co., 592 U.S. at 359). The court further “held that expressly aiming
does not require a nationwide interactive website to have a ‘forum-specific focus’ or
‘differential targeting.’” Doe v. Call-On Doc, Inc., No. 24-CV-2095-GPC (KSC), 2025 WL
1677632, at *8 (S.D. Cal. June 13, 2025) (quoting Briskin, 135 F.4th at 757–58).
Defendant argues that “[t]he mere facts that Plaintiff resides in California, accessed
Skullcandy’s website, and sustained alleged privacy injuries is not enough to show
Skullcandy expressly aimed claim-related conduct at California.” Mot. at 19. Defendant
then states that “California courts have routinely declined to extend personal jurisdiction to
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privacy claims when the allegations merely concern the browsing and use of a website.” Id.
However, the cases Defendant cites for this assertion all rely on Briskin v. Shopify, Inc., 87
F.4th 404 (9th Cir. 2023), which has since been vacated and granted rehearing en banc,
resulting in Briskin v. Shopify, Inc., 135 F.4th 739 (9th Cir. 2025), discussed above. 	See
Briskin v. Shopify, Inc., 101 F.4th 706, 706 (9th Cir. 2024) (“Upon the vote of a majority of
nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal
Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion is
vacated.”); Zarif, 789 F. Supp. 3d at 890 (“[T]he Ninth Circuit vacated its opinion in Briskin
and granted a rehearing en banc.”). 	Thus, Defendant fails to adequately address the new
framework established in Briskin v. Shopify, Inc., 135 F.4th 739 (9th Cir. 2025), and instead
argues that Plaintiff has failed to establish Skullcandy has a “California-specific focus,”
which is no longer required. See Briskin, 135 F.4th at 757–58.
The Court finds, like the court in Briskin, that Skullcandy “expressly aimed its
conduct at California through its extraction, maintenance, and commercial distribution of
the California consumers’ personal data in violation of California laws.” Id. at 756. Even
though Meta and Google “allegedly conducted the interception, processing and assembly
of data for use in advertising services,” Plaintiff alleges that Skullcandy intentionally aided
and 	assisted 	them 	in 	intercepting 	Plaintiff’s 	data 	“by 	intentionally 	embedding 	and
configuring their data processing platforms onto Defendant’s [W]ebsite.” 	Call-On Doc,
Inc., 2025 WL 1677632, at *8; Thomas v. Papa John’s Int’l, Inc., No. 24-3557, 2025 WL
1704437, at *1 (9th Cir. June 18, 2025) (finding that Papa John’s expressly aimed its
conduct at California because plaintiff alleged that it “use[d] its website to intentionally
collect information that invades the privacy of users, knowing that any alleged harm will be
suffered in California”). 	Therefore, the Court rejects Defendant’s argument that there
cannot be personal jurisdiction over Skullcandy because “Plaintiff does not allege that
Skullcandy collects data directly.” Mot. at 18.
Further, Plaintiff alleges that Defendant “chose to install certain invisible code
including 	[the 	Tracking 	Technologies]” 	to 	“secretly 	monitor 	browsing 	activity 	of
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unsuspecting customers who use Defendant’s Website.” Compl. ¶¶ 4–5. Plaintiff alleges
that Defendant has “received, retained, and benefitted from Plaintiff’s and Class Members’
personal data” such as “[d]etailed browsing histories and product preferences,” “[s]hopping
cart contents and purchase behavior,” “[p]ersonally identifiable information including
names, email addresses, and Facebook/Google account identifiers,” “[r]eal-time behavioral
data showing consumer interests and purchasing patterns,” and “[d]emographic and
psychographic profiles that enable targeted marketing.” Id. ¶ 165. Plaintiff further alleges
that Defendant has monetized this data by enhancing its advertising, consumer targeting,
and conversion rates. Id. ¶ 166.
Plaintiff also “alleges she purchased earbuds from Defendant,” “suffered harm while
in 	California,” and 	that 	“Defendant’s 	online business 	was 	purposefully 	directed 	at
California and California residents.” Opp’n at 15; Compl. ¶ 13. Plaintiff also argues that
Defendant conceded its Website reaches California Residents, and that the Website “is
accessed by users throughout California and the United States,” resulting in Defendant
doing “considerable business through its Website in California.” Opp’n at 15 (first citing
Compl. ¶¶ 9, 115, 119, 127; and then citing Almeida Decl., ¶ 6); Compl. ¶ 11.
At the pleading stage, it is plausible that Defendant was aware that the Tracking
Technologies would collect data of California residents due to its previous history of online
sales in California and the fact that Defendant’s Privacy Policy includes a section referring
to “California Privacy Rights” and does not refer to the privacy laws of any other state.4
See Opp’n at 13 n.2; Mot., Ex. C at 60; see also Gabrielli v. Motorola Mobility LLC, No.
24-CV-9533-JST, 2025 WL 1939957, at *8 (N.D. Cal. July 14, 2025) (finding purposeful
4 The Court takes Judicial Notice of Defendant’s Privacy Policy and Terms of Service (ECF No. 2, Exs. B,
C). Courts may take judicial notice of “publicly accessible websites whose accuracy and authenticity are
not subject to dispute.” In re Facebook, Inc. Sec. Litig., 477 F. Supp. 3d 980, 1008 (N.D. Cal. 2020), rev’d
in part on other grounds, 84 F.4th 944 (9th Cir. 2023) (citing Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998–99 (9th Cir. 2010)). Defendant’s Privacy Policy and Terms of Service are publicly available on
Defendant’s Website, and their authenticity is not subject to dispute. Therefore, Defendant’s Request for
Judicial Notice (ECF No. 2-3) is GRANTED in this regard.
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direction where defendant’s website specifically identified California privacy law and
claimed to comply with it—without specifically mentioning the laws of any other state).
Further, Defendant cannot hide behind the fact that it is a national company or that
Defendant does not have a “California-specific focus.” 	See Briskin, 135 F.4th at 756
(rejecting differential targeting and the argument that a company who operates nationwide
can only be subject to personal jurisdiction where its principal place of business and state
of incorporation are located). 	Based on Plaintiff’s allegations, Defendant intentionally
allowed the installation of the Tracking Technologies, making the collection of Plaintiff’s
data in California not “random, isolated, or fortuitous.” Id. at 758 (quoting Ford Motor Co.,
592 U.S. at 359).
Therefore, following other courts in this Circuit, the Court “concludes that Plaintiff
has made a prima facie showing that Defendant knowingly and intentionally embedded and
configured [the Tracking Technologies] on its [W]ebsite and expressly aimed its conduct at
California by assisting them in the targeting of Plaintiff’s device for its own personal gain.”
Call-On Doc, Inc., 2025 WL 1677632, at *8; Hassid v. Alex and Ani, LLC, No. CV 25-679
FMO (JCX), 2026 WL 160535, at *5 (C.D. Cal. Jan. 20, 2026) (finding plaintiff had
sufficiently alleged that defendant’s website, which had installed a software that tracked
device and browser, geographic, and URL information, “appeals to, and profits from, an
audience in California” and is “used to collect information intentionally from users,
knowing that privacy harms will be suffered in California”); Mikulsky v. Bloomingdale’s,
LLC, No. 24-3564, 2025 WL 1718225, at *1 (9th Cir. June 20, 2025) (same).
c. 	Causing Harm
The third component of the Calder effects test requires that “[a] defendant causes
harm in a particular forum when the ‘bad acts’ that form the basis of the plaintiff’s complaint
occur in that forum.” Will Co. v. Lee, 47 F.4th 917, 926 (9th Cir. 2022), overruled on other
grounds by, Briskin v. Shopify, Inc., 135 F.4th 739 (9th Cir. 2025). As the Court explained
in its standing analysis, taking Plaintiff’s allegations as true, Defendant intentionally
installed the Tracking Technologies to collect Plaintiff’s data and, thus, caused a privacy
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harm forming the basis of Plaintiff’s Complaint. 	See Gabrielli, 2025 WL 1939957, at *7
(finding a concrete injury for standing and therefore finding the third element satisfied).
Therefore, the Court finds that Plaintiff has satisfied the first element and sufficiently
alleged that Defendant purposefully directed its contacts into California.
2. Relatedness
“The second requirement for specific jurisdiction is that [P]laintiff’s claims ‘must
arise out of or relate to . . . [D]efendant’s contacts’ with the forum State.” Briskin, 135 F.4th
at 760 (quoting Ford Motor Co., 592 U.S. at 359). The Court finds that, as discussed above,
Plaintiff’s claim arises out of Defendant’s contacts with California through its Website’s
use of the Tracking Technologies. 	See Hassid, 2026 WL 160535, at *5. 	Plaintiff would
not have suffered an alleged privacy injury had Defendant not contracted with Meta and
Google to install the Tracking Technologies on its Website to collect her data while she
accessed the website in California. See, e.g., id. (“Plaintiff’s claim arises out of, or relates
to, defendant’s contacts with California through its Website. Plaintiff would not have
suffered an invasion of privacy had defendant not contracted with TikTok to install TikTok
Software on its Website to collect and send [P]laintiff’s private information to TikTok in
California.”); 	Briskin, 	135 	F.4th 	at 	760 	(“Shopify’s 	installation 	of 	software 	onto
unsuspecting Californians’ devices and extracting personal data from them is the kind of
contact that would tend to cause privacy injuries.”); Casillas, 2025 WL 3684543, at *4
(“However, as discussed above, the Court finds Defendant purposefully directed its actions
via its Website toward California, and Plaintiff’s claims are based on privacy violations
when consumers visited Defendant’s Website and their data was collected without their
consent.”).
Therefore, this prong is satisfied because Plaintiff’s injury arises out of her contact
with Defendant’s Website, and Plaintiff alleges the kind of injury “that would ‘tend to be
caused’” by Defendant’s “contacts with California merchants and consumers.” Briskin, 135
F.4th at 760 (quoting Yamashita, 62 F.4th at 505).
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3. Reasonableness
Because Plaintiff has satisfied the first two prongs, the burden shifts to Defendant to
“present 	a 	compelling 	case” 	that 	the 	exercise 	of 	jurisdiction 	is 	not 	reasonable.
Schwarzenegger, 374 F.3d at 802 (citing Burger King Corp., 471 U.S. at 476–78). 	“The
principles governing the exercise of jurisdiction over an out-of-state party ‘derive from and
reflect two sets of values—treating defendants fairly and protecting interstate federalism.’”
Briskin, 135 F.4th at 761 (internal quotation marks omitted) (quoting Ford Motor Co., 592
U.S. at 360). The Ninth Circuit has developed a seven-factor balancing test to determine
the reasonableness of asserting personal jurisdiction. Id. The factors are:
(1) the extent of the defendant’s purposeful interjection into the
forum 	state’s 	affairs; 	(2) 	the 	burden 	on 	the 	defendant 	of
defending in the forum; (3) the extent of conflict with the
sovereignty of the defendant’s state; (4) the forum state’s interest
in 	adjudicating 	the 	dispute; 	(5) 	the 	most 	efficient 	judicial
resolution of the controversy; (6) the importance of the forum to
the plaintiff’s interest in convenient and effective relief; and (7)
the existence of an alternative forum.
Id. (quoting Herbal Brands, 72 F.4th at 1096).
As to the first factor, the Court has already concluded that Defendant has purposefully
directed its contacts into California. 	See id. (finding the first factor weighed in favor of
reasonableness because the court already concluded that “the extent of [defendant’s]
purposeful 	direction 	of 	its 	regular 	business 	activities 	supports 	specific 	personal
jurisdiction”).
As to the second factor, Defendant argues that there would be an undue burden
litigating in California because Defendant’s “executive offices are located outside of
California.” 	Mot. at 21. 	While making a corporation litigate away from its home could
constitute a burden, Defendant did not provide specific facts showing this burden, or address
how progress and transportation have made foreign tribunals less burdensome. See Abbey
v. Pennsylvania State Univ., No. 24-CV-1217-FWS-AGR, 2024 WL 5413159, at *10 (C.D.
Cal. Nov. 13, 2024); Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir. 1988).
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This factor weighs in favor of exercising jurisdiction.
The Parties agree that the third factor is neutral. See Mot. at 21; Opp’n at 18.
As to the fourth factor, “California maintains a strong interest in providing an
effective means of redress for its residents tortiously injured.” 	Sinatra, 854 F.2d at 1200.
Further, “there is no doubt that the California Legislature, in enacting CIPA, intended ‘to
protect the right of privacy of the people of this state from what it perceived as a serious
threat to the free exercise of personal liberties that cannot be tolerated in a free and civilized
society.’” In re Meta Pixel Tax Filing Cases, 793 F. Supp. 3d 1147, 1153 (N.D. Cal. 2025)
(quoting Flanagan v. Flanagan, 27 Cal. 4th 766, 775 (2002)). Therefore, this factor weighs
in favor of exercising jurisdiction.
As to the fifth and sixth factors, the evidence will be located both in Utah and
California. Plaintiff lives in California, and Defendant is incorporated in Delaware and has
its principal place of business in Utah. Compl. ¶ 10. “The site where the injury occurred
and where evidence is located usually will be the most efficient forum.” 	Tuazon v. R.J.
Reynolds Tobacco Co., 433 F.3d 1163, 1176 (9th Cir. 2006) (citation omitted). Therefore,
these factors slightly weigh in favor of exercising jurisdiction.
As to the seventh factor, Defendant argues that Utah is an alternative forum. 	Mot.
at 21. 	However, 	as 	Plaintiff 	correctly 	states, 	“it 	is 	not 	enough 	that 	[Defendant]
demonstrate[s] that some other forum is more reasonable than California, [Defendant] must
show a due process violation; it must show that jurisdiction in California would make the
litigation ‘so gravely difficult and inconvenient that a party unfairly is at a severe
disadvantage in comparison to [its] opponent.’” Sher v. Johnson, 911 F.2d 1357, 1365 (9th
Cir. 1990) (quoting Burger King Corp., 471 U.S. at 478). 	Defendant has not made that
showing.
Therefore, Defendant has not met its burden to demonstrate that the exercise of
jurisdiction is not reasonable. 	Accordingly, Defendant’s Motion is denied insofar as it
argues a lack of personal jurisdiction.
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III. 	Venue
Defendant next argues that dismissal of this suit is proper on forum non conveniens
grounds, that venue is improper under Rule 12(b)(3) and 28 U.S.C. § 1406, and that, in the
alternative, venue is more convenient in Utah under 28 U.S.C. § 1404(a). Mot. at 32–35.
Plaintiff is correct that forum non conveniens is inapplicable to the current situation because
“the doctrine of forum non conveniens survives in federal court only when the alternative
forum is in a foreign country.” Ravelo Monegro v. Rosa, 211 F.3d 509, 513 (9th Cir. 2000)
(emphasis added). 	“Section 1404(a) thus serves as a statutory substitute for forum non
conveniens in federal court when the alternative forum is within the territory of the United
States.” Id. at 512–13 (emphasis added). Therefore, the Court will consider whether venue
should be dismissed/transferred as improper under 28 U.S.C. 1406 or transferred to a more
convenient forum under 28 U.S.C. § 1404(a).
A. 28 U.S.C. § 1406
Venue is proper in a judicial district in which (1) “any defendant resides, if all
defendants are residents of the State in which the district is located” or (2) “a substantial
part of the events or omissions giving rise to the claim occurred.” 	28 U.S.C. § 1391(b).
“The district court of a district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.” 28 U.S.C. § 1406(a). A substantial part
of the events giving rise to the Complaint does not require most of the events to happen in
the district or that the events in the district in question predominate, but rather is evaluated
based on the entire set of events with a focus on the defendant’s actions. Sapan v. Dynamic
Network Factory, Inc., No. 13-cv-1966-MMA (WVG), 2013 WL 12094829, at *3 (S.D.
Cal. Nov. 25, 2013) (citing San Francisco Residence Club, Inc. v. Leader Bulso & Nolan,
PLC, No. C–13–0844 EMC, 2013 WL 2050884, at *5 (N.D. Cal. May 14, 2013)).
A party may move to dismiss an action for improper venue pursuant to Federal Rule
of 	Civil 	Procedure 	12(b)(3). 	Once 	challenged, 	the 	plaintiff 	bears 	the 	burden 	of
demonstrating that the venue is proper. 	Piedmont Label Co. v. Sun Garden Packing Co.,
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598 F.2d 491, 496 (9th Cir. 1979). When evaluating a motion pursuant to Rule 12(b)(3),
the Court need not accept the pleadings as true and may consider facts beyond the pleadings.
Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004). However, the court
must “draw all reasonable inferences and resolve all factual conflicts in favor of the non-
moving party.” 	Sapan, 2013 WL 12094829, at *2 (citing Doe 1 v. AOL LLC, 552 F.3d
1077, 1081 (9th Cir. 2009)). 	Whether the case is to be transferred to a proper venue or
dismissed is a matter within the discretion of the district court. 	King v. Russell, 963 F.2d
1301, 1304 (9th Cir. 1992). The interest of justice typically favors transfer, so plaintiffs are
not prevented from bringing their claims due to technicalities. 	Goldlawr, Inc. v. Heiman,
369 U.S. 463, 467 (1962); see also Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096,
1103 (C.D. Cal. 2001).
Here, the Court finds that venue is proper in the Southern District of California. As
discussed above, a substantial amount of the events underlying this action took place in the
Southern District of California. 	Plaintiff lives in the Southern District of California and
accessed Defendant’s Website to purchase earbuds to ship to her home in this District.
Compl. ¶¶ 14, 119. The alleged collection of Plaintiff’s data by the Tracking Technologies
took place in the Southern District of California, and Plaintiff’s information was disclosed
to companies with a headquarters in California. See Opp’n at 31. Therefore, the Court finds
that “a substantial part of the events or omissions giving rise to the claim occurred” in the
Southern District of California, making venue proper. Because the Court finds venue proper
under 28 U.S.C. § 1406, the Court need not address Plaintiff’s argument concerning 28
U.S.C. § 1441(a). See Opp’n at 30–31.
B. 28 U.S.C. § 1404(a)
“For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district . . . where it might have been brought . . . .”
28 U.S.C. § 1404(a). “Section 1404 ‘place[s] discretion on the district court to adjudicate
motions 	for 	transfer 	according 	to 	an 	individualized, 	case-by-case 	consideration 	of
convenience and fairness.’” 	Greenley v. Kochava, Inc., 684 F. Supp. 3d 1024, 1041 (S.D.
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Cal. 2023) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). “District
courts employ a two-step framework to resolve a transfer motion.” Id. First, the court must
consider whether the plaintiff could have originally brought the action in the proposed
transferee forum. See Hoffman v. Blaski, 363 U.S. 335, 344 (1960). Second, the court then
weighs several factors “based in convenience and fairness.” 	Greenley, 684 F. Supp. 3d at
1041 (citing Stewart Org., 487 U.S. at 29).
The Parties do not dispute that this action could have been brought in Utah. 	“The
phrase where an action ‘could have been brought’ is interpreted to mean that the proposed
transferee court would have subject matter jurisdiction, proper venue, and personal
jurisdiction.” Peregrine Semiconductor Corp. v. RF Micro Devices, Inc., No. 12-CV-911-
IEG WMC, 2012 WL 2068728, at *2 (S.D. Cal. June 8, 2012) (citation omitted). The Court
finds that this action could be brought in Utah because Defendant’s principal place of
business in located in Utah, making it subject to general personal jurisdiction and venue in
Utah, and the Utah District Court would have subject matter jurisdiction based on the Class
Action Fairness Act. 	See 28 U.S.C. § 1332(d)(2) (providing subject matter jurisdiction in
this matter); Daimler, 571 U.S. at 137 (“With respect to a corporation, the place of
incorporation and principal place of business are paradigm bases for general jurisdiction.”
(internal citation omitted) (cleaned up)); 28 U.S.C. § 1391(b)(1) (defining venue as proper
in a judicial district in which any defendant resides if all defendants are residents of that
state).
Thus, the Court turns to the convenience and fairness factors. District courts consider
the following factors when deciding a transfer motion:
(1) the plaintiff’s choice of forum, (2) convenience of the parties,
(3) convenience of the witnesses, (4) ease of access to the
evidence, (5) familiarity of each forum with the applicable law,
(6) feasibility of consolidation of other claims, (7) any local
interest in the controversy, and (8) relative court congestion and
time to trial in each forum.
Greenley, 684 F. Supp. 3d at 1041 (citing Jones v. GNC Franchising, Inc., 211 F.2d 495,
498–99 (9th Cir. 2000)).
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First, “a court may afford ‘great weight’ to the plaintiff’s choice of forum, especially
‘when the plaintiff has chosen to file the lawsuit in its home forum.’” 	Id. (quoting Lou v.
Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)). However, deference to the plaintiff’s choice
is reduced when an individual represents a class. 	Lou, 834 F.2d at 739 (citation omitted).
Defendant argues that Plaintiff’s choice of forum should be afforded little weight because
Plaintiff has engaged in forum shopping and represents a class. Mot. at 37 (citing Williams
v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001) (“If there is any indication that
plaintiff’s choice of forum is the result of forum shopping, plaintiff’s choice will be
accorded little deference.”)). Defendant’s only evidence of alleged forum shopping is that
Plaintiff initially filed her claims in the District of Utah, voluntarily dismissed those claims,
then re-filed this matter in the Superior Court for the State of California, County of San
Diego, before being removed to the Southern District of California.5 Id.
The Court finds that this factor weighs in favor of Plaintiff. The Southern District of
California is Plaintiff’s home forum, and while Plaintiff does represent a class, all the
proposed class members are residents of California, not Utah, and the injury took place in
the Southern District of California. 	See Greenley, 684 F. Supp. 3d at 1042 (finding this
factor weighed in favor of plaintiff when plaintiff and all the putative class members lived
in California and a substantial part of the injury occurred in the forum). The Court is not
convinced that Defendant has raised strong evidence of forum shopping, as simply refiling
in one’s home forum is unpersuasive evidence of forum shopping. 	See Enger v. Allstate
Ins. Co., No. 16-CV-136-JSW, 2016 WL 10829363, at *2 (N.D. Cal. Apr. 5, 2016) (finding
the refiling of a lawsuit in a plaintiff’s home forum “insufficient to support a strong
inference of forum shopping”). Therefore, this factor weighs against transfer.
/ / /
5 The Court takes Judicial Notice of Plaintiff’s previous suit against Skullcandy filed in the District of Utah,
Jones v. Skullcandy, Inc., 2:25-cv-00184 (D. Utah, Compl. Filed March 11, 2025). “Judicial notice of court
records is routinely accepted.” Mendez v. Optio Sols., LLC, 219 F. Supp. 3d 1012, 1014 (S.D. Cal. 2016)
(quoting Rowland v. Paris L.V., No. 13-CV-02630-GPC-DHB, 2014 WL 769393, at *3 (S.D. Cal. Feb. 25,
2014)). Therefore, Defendant’s Request for Judicial Notice (ECF No. 2-3) is GRANTED in this regard.
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Regarding the second factor, the convenience of the parties, the Court agrees with
Plaintiff that transfer would “merely shift rather than eliminate the inconvenience.” Decker
Coal Co. v. Commonwealth Edison, Co., 805 F.2d 834, 843 (9th Cir. 1985); Amazon.com
v. Cendant Corp., 404 F. Supp. 2d 1256, 1260 (W.D. Wash. Dec. 13, 2005) (“As to the
relative convenience to the parties, the Court may not transfer a case simply to shift the
burden from one party to another.”). Therefore, this factor weighs against transfer.
Regarding the third factor, convenience of the witnesses, “[t]he convenience of the
witnesses, particularly non-party witnesses, is often the most important factor.” Doe v. Epic
Games, Inc., 435 F. Supp. 3d 1024, 1042 (N.D. Cal. 2020) (citation omitted). 	“In
determining the convenience of the witnesses, the Court must examine the materiality and
importance of the anticipated witnesses’ testimony and then determine their accessibility
and convenience to the forum.” Gherebi v. Bush, 352 F.3d 1278, 1304 n.33 (9th Cir. 2003),
vacated on other grounds, 542 U.S. 952 (2004). 	In “establishing inconvenience to
witnesses, the moving party must name the witnesses, state their location, and explain their
testimony and its relevance.” Imran v. Vital Pharms., Inc., No. 18-CV-5758-JST, 2019 WL
1509180 at *4 (N.D. Cal. Apr. 5, 2019) (citation omitted). “Further, not all witnesses are
treated equal: ‘[I]n balancing the convenience of the witnesses, primary consideration is
given to third part[ies], as opposed to employee witnesses.’” Greenley, 684 F. Supp. 3d at
1043 (quoting Hawkins v. Gerber Prod. Co., 924 F. Supp. 2d 1208, 1215 (S.D. Cal. 2013)).
The Court finds that Defendant has not met its burden. Defendant fails to name any
witnesses or what their testimony would be—stating only that “the majority of material
witnesses and evidence are located in Utah,” which “concern activities and business
decisions that occurred or were made in Utah.” 	See Mot. at 38–39. 	Plaintiff states that
Plaintiff will call “numerous non-party witnesses employed in California” employed by
Facebook and Google. Opp’n at 33–34. Therefore, this factor weighs against transfer.
Regarding the fourth 	factor, ease of access to the evidence, “in the age of
electronically stored information, the ease of access to evidence is neutral because much of
the evidence in this case will be electronic documents, which are relatively easy to obtain
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in any district.” 	Simpson Strong-Tie Co., Inc. v. Oz-Post Int’l, LLC, No. 18-CV-1188-
WHO, 2018 WL 3956430, at *8 (N.D. Cal. Aug. 17, 2018) (citation omitted).
Regarding the fifth factor, familiarity of each forum with the applicable law, Plaintiff
alleges violations of California law. 	Although the District of Utah is competent to apply
California law, “[a] California district court is more familiar with California law than district
courts in other states.” 	In re Ferrero Litig., 768 F. Supp. 2d 1074, 1081 (S.D. Cal. 2011).
Therefore, 	this 	factor 	weighs 	against 	transfer—especially 	given 	the 	complexity 	of
California privacy laws. 	See Greenley, 684 F. Supp. 3d at 1044 (noting that California’s
“data privacy statutory regime” is complex).
The sixth factor, feasibility of consolidation of other claims, is neutral because there
are no related cases in another district with which this case could be consolidated. 	See
Opp’n at 34.
Regarding the seventh factor, California’s interest in the controversy, the Court has
already discussed at length this case’s connection with California. 	“California has a
demonstrated interest in the privacy of its residents.” 	Greenley, 684 F. Supp. 3d at 1044.
Therefore, this factor weighs against transfer.
Regarding the eighth factor, relative court congestion and time to trial in each forum,
the Court finds this factor insignificant, and therefore, neutral. See Greenley, 684 F. Supp.
3d at 1044 (finding the relative court congestion and time of trial in each forum did not
“significantly move the needle”).
Therefore, in balancing the factors, the factors heavily weigh against transfer.
Defendant’s Motion is denied insofar as it argues the District of Utah is a more convenient
forum under 28 U.S.C. § 1404(a). 	Accordingly, Defendant’s Motion is denied as to
Defendant’s arguments regarding venue.
/ / /
/ / /
/ / /
/ / /
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IV. 	Failure to State a Claim
Defendant next argues that Plaintiff has failed to state a claim under Rule 12(b)(6)
because: (1) Plaintiff consented to any activity alleged; (2) CIPA § 631 is inapplicable
because Plaintiff fails to allege that the relevant information was acquired in transit; (3)
CIPA § 632 is inapplicable because Defendant was a party to the conversation and the
conversations were not confidential; (4) Plaintiff does not have a reasonable expectation of
privacy as a “tester” Plaintiff; (5) CIPA does not apply to “extraterritorial conduct”; and (6)
there is no standalone cause of action for unjust enrichment in California. 	See generally
Mot. The Court considers each argument in turn.
A. Consent
Defendant argues that “Plaintiff’s consent to Skullcandy’s Terms of Service and
Privacy Policy negates the applicability of either CIPA statute as a matter of law.” 	Mot.
at 24. Defendant concludes that the “express disclosures” in the Terms of Service, Privacy
Policy, and Cookie Policy (the “Terms”) located via hyperlink on the Website are sufficient
“to put a reasonable person, including Plaintiff, on notice” that the data collected “may be
shared with third parties” to “promote site functionality and for marketing.” 	Id. at 25.
Plaintiff 	argues 	that 	she 	did 	not 	consent 	to 	Defendant’s 	recording 	“because 	the
inconspicuous hyperlinks buried at the bottom of the Website in small font fail to constitute
valid consent under CIPA” and the “vague references to data sharing lack the specificity
required for knowing consent.” Opp’n at 22.
“For there to be knowing consent to the terms of a contract under California law,
there ‘must be actual or constructive notice of the agreement and the parties must manifest
mutual assent.’” 	L.B. v. LinkedIn Corp., No. 24-CV-6832-EJD, 2025 WL 2899514, at *8
(N.D. Cal. Oct. 10, 2025) (quoting Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 512–
13 (9th Cir. 2023)). 	“The ‘principle of knowing consent’ required to establish contract
formation applies with particular force to contracts formed online.” Id. (quoting Berman v.
Freedom Fin. Network, LLC, 30 F.4th 849, 855–56 (9th Cir. 2022)). 	“Contracts formed
online are classified ‘by the way in which the user purportedly gives their assent to be bound
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by the associated terms’ and generally fall on a spectrum ranging from ‘clickwrap’ to
‘browsewrap.’” Id. at 9 (quoting Keebaugh v. Warner Bros. Ent. Inc., 100 F.4th 1005, 1014
(9th Cir. 2014)). Clickwrap agreements are those “in which a website presents users with
specified contractual terms on a pop-up screen and users must check a box explicitly stating
‘I agree’ in order to proceed.” Berman, 30 F.4th at 856 (citing Nguyen v. Barnes & Noble
Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014)). Browsewrap agreements are agreements “in
which a website offers terms that are disclosed only through a hyperlink[,] and the user
supposedly manifests assent to those terms simply by continuing to use the website.”
Berman, 30 F.4th at 856 (citing Nguyen, 763 F.3d at 1176). “Courts are more reluctant to
enforce browsewrap agreements because consumers are frequently left unaware that
contractual terms were even offered, much less that continued use of the website will be
deemed to manifest acceptance of those terms.” Id. (citing Nguyen, 763 F.3d at 1178).
“Unless the website operator can show that a consumer has actual knowledge of the
agreement, an enforceable contract will be found based on an inquiry notice theory only if:
(1) the website provides reasonably conspicuous notice of the terms to which the consumer
will be bound; and (2) the consumer takes some action, such as clicking a button or checking
a box, that unambiguously manifests his or her assent to those terms.” Berman, 30 F.4th at
856 (first citing Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017); and then citing
Nguyen, 763 F.3d at 1173). To be conspicuous, “a notice must be displayed in a font size
and format such that the court can fairly assume that a reasonably prudent Internet user
would have seen it.” Id. (first citing Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 30
(2d Cir. 2002); and then citing 	Nguyen, 763 F.3d at 1177). 	Courts consider “the
conspicuousness and placement of the ‘Terms of Use’ hyperlink, other notices given to
users of the terms of use, and the website’s general design.” Nguyen, 763 F.3d at 1177.
The Court finds that the Terms at issue are browsewrap because the Privacy Policy
begins by stating, “By visiting the Site or using any of the Services, you consent to
Skullcandy’s collection, use, disclosure, transfer and storage of information relating to you
as set forth in this Privacy Policy,” and the images provided in the Complaint of the Website
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show a small link at the bottom of the Website homepage stating, “By using our site you
agree to our Cookie Policy.” ECF No. 2-2, Ex. C at 56; Compl. ¶ 109. Further, there are
no allegations that a Website-user must affirmatively agree to the Terms by clicking a button
to access the website. 	See generally Mot.; Opp’n at 23 (“Like other ‘browsewrap’
agreements, Defendant’s Terms do not require the user to manifest assent expressly.”).
Defendant does not argue that Plaintiff was on actual notice of the Terms—instead
arguing that “[i]t is enough that ‘a plaintiff is provided with an opportunity to review the
terms of service in the form of a hyperlink.’” Mot. at 26 (quoting Moretti v. Hertz Corp.,
No. C 13-02972 JSW, 2014 WL 1410432, at *2 (N.D. Cal. Apr. 11, 2014)). Plaintiff alleges
that “Skullcandy did not obtain the requisite consent” from Plaintiff or any of the class
members, and the only mention of the Terms are “a small, obscured link to a ‘Cookie Policy’
at the bottom of the page.” 	Compl. ¶¶ 102, 107. 	Plaintiff contends that “the link to the
Terms is presented in a font ‘considerably smaller than the font used in the surrounding
website elements’ and is overshadowed by ‘comparatively larger font used in all of the
surrounding text,’ thereby minimizing users’ awareness of the Privacy Policy link” and
failing to provide inquiry notice. 	Id. ¶ 110; see also Berman, 30 F.4th at 856. The Court
agrees.
“Where the link to a website’s terms of use is buried at the bottom of the page or
tucked away in obscure corners of the website where users are unlikely to see it, courts have
refused to enforce the browsewrap agreement.” 	Nguyen, 763 F.3d at 1177 (citation
omitted). 	Here, the Court finds that the link to the Terms is printed in a tiny font
“considerably smaller than the font used in the surrounding website elements” which
“naturally directs the user’s attention everywhere else.” Berman, 30 F.4th at 856–57. This
notice “is further deemphasized by the overall design of the webpage, in which other visual
elements draw the user’s attention away from the barely readable critical text”—thus,
“draw[ing] the user’s attention away from the most important part of the page.” Id. (citing
Nguyen, 763 F.3d at 1178 n.1). As seen in Plaintiff’s Complaint, the notice is in small white
font much smaller than the rest of the text on the Website and overshadowed by large
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photographs of Defendant’s products. Compl. ¶ 109.
“Because online providers have complete control over the design of their websites,
the onus must be on the website owners to put users on notice of the terms to which they
wish to bind consumers.” Berman, 30 F.4th at 857 (first citing Sellers v. JustAnswer LLC,
73 Cal. App. 5th 444, 465 (2021); and then citing Nguyen, 763 F.3d at 1179) (cleaned up).
The Court finds that Defendant has failed to put Website users on inquiry notice of the
Terms. 	Therefore, Plaintiff and the class members adequately allege that they did not
consent to the Tracking Technologies. 	See Camplisson v. Adidas Am., Inc., No. 25-CV-
603-GPC-KSC, 2025 WL 3228949, at *9 (S.D. Cal. Nov. 18, 2025) (finding no consent
where the policy was in a hyperlink in the footer of the page); Rocha v. Urban Outfitters,
Inc., No. 23-CV-542-AMO, 2024 WL 393486, at *4–5 (N.D. Cal. Feb. 1, 2024) (finding no
inquiry notice where the notice was in small font and surrounded by other more important
information regarding a purchase); Valenzuela v. Keurig Green Mountain, Inc., 674 F.
Supp. 3d 751, 756–57 (N.D. Cal. 2023) (finding “merely hyperlinking to a privacy policy
at the bottom of a webpage” insufficient to establish consent under CIPA). 	Defendant’s
Motion is denied insofar as it argues Plaintiff’s consent bars her CIPA claims.
B. CIPA Section 631(a) is Inapplicable
Defendant argues that CIPA § 631 cannot apply to the conduct at issue because
Plaintiff fails to allege that a “third-party interceptor both attempted to read and learn the
contents of the communication and that it happened while in transit—not later.” 	Mot. at
28.6 Plaintiff alleges that “the Tracking Technologies embedded in Skullcandy’s Website
fire while the page is in use, causing Plaintiff’s browsing activity and text input on the
Website to be transmitted to Defendant and third parties simultaneously.” 	Opp’n at 26
(citing Compl. ¶¶ 70–75, 97).
6 Defendant makes other arguments surrounding the inapplicability of the first and third predicate acts of
CIPA § 631. 	Mot. at 27. 	These arguments are moot because Plaintiff states in her Opposition that she
“does not allege that the first or third predicate act described in Cal. Penal Code. § 631(a) applies.” Opp’n
at 26 n.5.
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Section 631(a) imposes liability where a person “willfully and without consent of all
parties . . . attempts to read, or to learn the contents or meaning of any message . . . while
the same is in transit,” and where a person aids this conduct. Cal. Penal Code § 631(a). “To
allege a predicate act under the second clause,” like Plaintiff does here, “a plaintiff must
allege the eavesdropping occurred ‘while the communication is in transit.’” R.C. v. Sussex
Publishers, LLC, No. 24-CV-2609-JSC, 2025 WL 948060, at *7 (N.D. Cal. Mar. 28, 2025)
(quoting Cal. Penal Code § 631(a)). 	“‘While’ is the key word here.” 	Valenzuela, 674 F.
Supp. 3d at 758.
Here, Plaintiff provides detailed explanations of how the Tracking Technologies
collect Plaintiff’s data in real time, including information about the pages the user views,
the items the user interacts with, and any potential purchase or checkout steps in real time.
See Compl. ¶¶ 69–100. 	Providing just one example, Plaintiff alleges that the “extensive
tracking of user-identifiable data occurs in real time and is automated through each user’s
browser interactions with the Website,” thus “every pageview or button click is tagged with
a persistent ID, ensuring that Google can systematically link each action to a specific user
profile.” Id. ¶ 100.
The Court finds that Plaintiff has provided sufficient information to allege that the
tracking takes place “while the communication is in transit.” See Semien v. PubMatic, Inc,
No. 25-CV-3164-SI, 2026 WL 216333, at *7–8 (N.D. Cal. Jan. 27, 2026) (finding sufficient
allegations including detailed descriptions of how the software at issue works to collect
URLs and other information in real time); Riganian, 791 F. Supp. 3d at 1092 (finding
specific descriptions of how the technology worked sufficient to allege the communication
was intercepted while in transit, as a true factual analysis of that issue was proper for
summary judgment—not a motion to dismiss); Krzyzek, 2026 WL 206855, at *7 (same); cf.
Valenzuela, 674 F. Supp. 3d at 758–59 (granting motion to dismiss as plaintiff only alleged
that the software intercepts and stores data “in real time” and did not “explain—even at a
high level—how such code might plausibly work”). 	Therefore, Defendant’s Motion is
denied in this regard.
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C. CIPA Section 632 is Inapplicable
Defendant next argues that CIPA § 632 is inapplicable to the alleged conduct because
Plaintiff fails to allege that the intercepted communications were confidential as required
under § 632.7 Mot. at 28–29. 	Plaintiff argues that she had “an objectively reasonable
expectation of confidentiality” that her “unique shopping habits” and other data would not
be in the hands of third parties and used to “create a unique advertising profile and a basis
for a slew of personally targeted ads.” Opp’n at 27–28.
“To state a claim under § 632, Plaintiff must show there was (1) an electronic
recording of (2) a confidential communication and (3) all parties did not consent.” Smith v.
YETI Coolers, LLC, 754 F. Supp. 3d 933, 943 (N.D. Cal. 2024) (citation omitted). Under
Section 632, a communication is confidential if “a party to that conversation has an
objectively 	reasonable 	expectation 	that 	the 	conversation 	is 	not 	being 	overheard 	or
recorded.” 	Flanagan, 	27 	Cal. 	4th 	at 	777. 	“Courts 	generally 	find 	that 	Internet
communications do not have an objectively reasonable expectation of confidentiality,
especially 	if 	those 	communications 	can 	be 	easily 	shared 	by 	the 	recipients 	of 	the
communications.” Yoon v. Meta Platforms, Inc., No. 24-CV-2612-NC, 2024 WL 5264041,
at *6 (N.D. Cal. Dec. 30, 2024) (citations omitted). 	“Plaintiffs must plead ‘something
unique about these particular internet communications’ to justify that they are confidential.”
Id. (citing In re Meta Pixel Healthcare Litig., 647 F. Supp. 3d 778, 799 (2022)). “[W]hile
there is no reasonable expectation of privacy over URLs that only reveal basic identification
information,” there is “over URLs that disclose ‘the particular document within a website
7 Defendant also argues that “[a] party to the communication is exempt from CIPA liability because ‘parties
to a communication cannot eavesdrop on their own conversation.’” Mot. at 28 (quoting Willaims v. What
If Holdings, LLC, No. C 22-3780 WHA, 2022 WL 17869285, at *2 (N.D. Cal. Dec. 22, 2022)). The Court
agrees with Plaintiff that this argument is irrelevant because Plaintiff is alleging that “Defendant aided and
enabled third parties to capture her communications.” Opp’n at 27; see also D’Angelo v. FCA US, LLC,
726 F. Supp. 3d 1179, 1201 (S.D. Cal. 2024) (rejecting same argument because “the Complaint alleges that
Defendant allows a third party to eavesdrop on its communications in real time, thereby ‘simultaneously
disseminating’ the chat communications ‘to an unannounced second auditor’” (cleaned up) (citation
omitted)).
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that a person views.’” 	Id. at *7 (quoting Brown v. Google LLC, 685 F. Supp. 3d 909, 941
(N.D. Cal. 2023)). Determining whether Plaintiff has a reasonable expectation of privacy
“is a ‘fact-intensive inquiry’ that is often too difficult to resolve at the pleadings stage.”
YETI Coolers, 754 F. Supp. 3d at 943 (quoting Brown, 685 F. Supp. 3d at 937).
Plaintiff alleges that Defendant allows third-parties to collect information such as
“[d]etailed browsing histories and product preferences,” “[s]hopping cart contents and
purchase 	behavior,” 	“[p]ersonally 	identifiable 	information 	including 	names, 	email
addresses, and Facebook/Google account identifiers,” “[r]eal-time behavioral data showing
consumer interests and purchasing patterns,” and “[d]emographic and psychographic
profiles that enable targeted marketing.” Id. ¶ 165.
At the pleading stage, the Court finds that Plaintiff has sufficiently alleged a
reasonable expectation that the immense amount of personally identifiable and browsing
data allegedly collected by the Tracking Technologies would not be shared with third
parties. See, e.g., YETI Coolers, 754 F. Supp. 3d at 943 (denying motion to dismiss where
plaintiff alleged that she reasonably expected that defendant would keep her personally
identifiable and credit card information private and not disclose it to third parties); Yoon,
2024 WL 5264041, at *7 (finding plausible allegations of confidentiality where defendant
used software to collect video viewing data without plaintiff’s consent); L.B., 2025 WL
2899514, at *18 (declining to decide what a reasonable expectation is at the pleading stage
and denying the motion to dismiss); Shah v. Capital One Fin. Corp., 768 F. Supp. 3d 1033,
1054 (N.D. Cal. 2025) (finding sufficient allegations for § 632 based on similar facts); Smith
v. Red Rock Shoes, Inc., 24-CV-6709-REL, 2025 WL 1085169, at *5 (N.D. Cal. Apr. 4,
2025) (finding a reasonable expectation of privacy where the privacy policy said nothing
about third parties collecting, storing, and analyzing a visitor’s browsing and purchase
history). Therefore, Defendant’s Motion is denied as to § 632.
/ / /
/ / /
/ / /
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D. No Expectation of Privacy
Defendant argues that Plaintiff fails to allege she had a reasonable expectation of
privacy because she was “actively seeking out privacy violations.” 	Mot. at 29 (quoting
Rodriguez v. Autotrader.com, Inc., No. 24-CV-8735-RGK-JC, 2025 WL 1085787, at *1
(C.D. Cal. Apr. 4, 2025)). 	Plaintiff argues that Defendant is again challenging standing,
and Defendant’s only evidence that Plaintiff is a “tester” is that she has brought other
privacy-related cases. Opp’n at 28.
The Court agrees with Plaintiff that Defendant makes another standing challenge
alleging that Plaintiff is a “tester.” 	Defendant only relies on 	Rodriguez, which is
distinguishable from the facts of this case. 2025 WL 1085787, at *1. Rodriguez concerned
a plaintiff who was a self-declared tester who attempted to establish standing based on
analogies to First Amendment and ADA testers. Id. Here, Plaintiff does not allege that she
is a tester but rather alleges that she accessed Defendant’s Website to browse—and
ultimately purchase—earbuds. Compl. ¶¶ 119–20. Therefore, considering the facts alleged
in the Complaint as true, Defendant has not demonstrated that Plaintiff lacks standing due
to being a “tester.” 	See, e.g., Gabrielli, 2025 WL 1939957, at *7 (denying this argument
because the plaintiff pled “that he is not a tester and that he visited [defendant’s] website to
‘browse information about [defendant’s] products’ and not to seek out privacy violations”);
cf. Rodriguez, 2025 WL 1085787, at *1 (finding no standing where there was no dispute
plaintiff was a tester).
E. CIPA Inapplicable to Extraterritorial Conduct
Defendant next argues that “Plaintiff fails to state any CIPA claim because she does
not factually allege that any of the activity alleged took place in California”; therefore, her
CIPA claims must fail because “[n]othing in CIPA displaces the ‘strong presumption
against the extraterritorial application of California law.’” Mot. at 30–31 (quoting Brackett
v. Am. Airlines Grp. Inc., No. 21-CV-2681-HSG, 2022 WL 282529, at *2 (N.D. Cal. Jan.
31, 2022)).
/ / /
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As discussed above, Plaintiff has sufficiently alleged that the “activity” underlying
this case took place in California. See Compl. ¶¶ 115–19, 150. Further, “there is no doubt
that the California Legislature, in enacting CIPA, intended ‘to protect the right of privacy
of the people of [California] from what it perceived as a serious threat to the free exercise
of personal liberties that cannot be tolerated in a free and civilized society.’” 	In re Meta
Pixel Tax Filing Cases, 793 F. Supp. 3d at 1153 (quoting Flanagan, 27 Cal. 4th at 775).
Plaintiff is a California resident, and the underlying collection of data took place while
Plaintiff was in California. 	See Zarif, 789 F. Supp. 3d at 898 (rejecting extraterritoriality
argument where plaintiff alleged she was a California resident and that the relevant
communications were sent while she was in California). 	Therefore, Defendant’s Motion
fails on this ground.
F. Unjust Enrichment
Defendant argues that, under California law, there is no separate standalone cause of
action for unjust enrichment, just a restitution claim. Mot. at 31. The case law on this issue
is not clean cut. 	See, e.g., Greenley, 684 F. Supp. 3d at 1044 (dismissing an unjust
enrichment claim with leave to amend because it is not a stand-alone cause of action);
Capital One Fin. Corp., 768 F. Supp. 3d at 1051 (“Both the Ninth Circuit and the California
Supreme Court have allowed independent claims for unjust enrichment to proceed.”);
Riganian, 791 F. Supp. 3d at 1094 (“California cases disagree as to whether unjust
enrichment is a standalone claim.”). “California courts may treat unjust enrichment claims
as a quasi-contract claim seeking restitution.” 	Saedi, 2025 WL 1141168, at *14 (quoting
Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295, 1307 (2011)). However, “[r]egardless of
whether the claim is labelled unjust enrichment or restitution, a plaintiff must allege the
same two elements: ‘receipt of a benefit and unjust retention of the benefit at the expense
of another.’” Riganian, 791 F. Supp. 3d at 1094 (quoting Lectrodryer v. SeoulBank, 77 Cal.
App. 4th 723, 726 (2000)).
Plaintiff argues that she sufficiently alleged restitution because she “plausibly
alleges Defendant benefitted from its fraudulent concealment violations of CIPA.” Opp’n
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at 29–30 (quoting Compl. ¶¶ 161–77). The Court agrees with Plaintiff. “[T]he essence of
unjust enrichment is the unjust retention of a benefit at the expense of another.” 	Sons v.
McManis, No. CIV F 8-840 AWI TAG, 2010 WL 3491514, at *7 (E.D. Cal. Sept. 3, 2010)
(citation omitted). Plaintiff alleges that Defendant has monetized the data collected by the
Tracking Technologies by enhancing its advertising, consumer targeting, and conversion
rates. Compl. ¶ 166.
Therefore, the Court follows others in this Circuit in finding that Plaintiff has
sufficiently stated a claim for unjust enrichment. 	See Riganian, 791 F. Supp. 3d at 1094
(finding plaintiff stated a claim for unjust enrichment where plaintiff alleged defendant
violated plaintiffs’ privacy rights and profited from the data collection); Lewis v. Magnite,
Inc., No. 25-CV-3448-MWC-SSCx, 2025 WL 3687546, at *14 (C.D. Cal. Dec. 4, 2025)
(holding that plaintiff stated a claim “because Defendant surreptitiously retained and
profited off Plaintiffs’ data”); Hart v. TWC Prod. & Tech. LLC, 526 F. Supp. 3d 592, 605
(N.D. Cal. 2021) (“[Plaintiff] has sufficiently pleaded a claim by alleging that [defendant]
unjustly benefited from the use of his location data.”); MyFitnessPal, 2026 WL 216334, at
*9 (finding allegations sufficient where plaintiff alleged “that the resulting data collection
was valuable because it enabled [defendant] to better market features and services, better
target advertisements and better profit from its understanding of users’ behaviors”).
Accordingly, Defendant’s Motion is denied insofar as it argues Plaintiff failed to state a
claim for unjust enrichment.
CONCLUSION
For the reasons above, the Court DENIES Defendant’s Motion to Dismiss Plaintiff’s
Complaint (“Mot.,” ECF No. 2). 	Defendant SHALL answer the Complaint within thirty
(30) days of the electronic docketing of this Order.
IT IS SO ORDERED.
Dated: March 12, 2026
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