3:25-cv-01094•Fregosa v. Mashable Inc.
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3:25-CV-01094-CRB STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James G. Snell (Bar No. 173070) JSnell@perkinscoie.com Timothy M. Carter (Bar No. 335212) TCarter@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, California 94304-1212 Telephone: +1.650.838.4300 Facsimile: +1.650.838.4350 Mikella M. Hurley (Pro Hac Vice) MHurley@perkinscoie.com PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: +1.202.654.6200 Facsimile: +1.202.654.6211 Attorneys for Defendant MASHABLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAWN FREGOSA, individually and on behalf of all others similarly situated, Plaintiff, v. MASHABLE, INC., Defendant. Case No. 3:25-CV-01094-CRB STIPULATION TO STAY CASE PENDING RULING FROM CALIFORNIA COURT OF APPEALORDER Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 1 of 7
-1- 3:25-CV-01094-CRB STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Dawn Fregosa (“Plaintiff”) and Defendant Mashable, Inc. (“Mashable”), (together, the “Parties”), by and through their respective counsel, hereby jointly move this Court for an order staying this case pending a ruling from the California Court of Appeal, Second Appellate District, in Variety Media, LLC v. the Superior Court of Los Angeles County, Case No. B350578 (the “Variety Appeal”). The Parties stipulate as follows: WHEREAS, on May 5, 2025, Plaintiff filed her Second Amended Class Action Complaint (“SAC”) against Mashable asserting a single cause of action for violation of California Penal Code § 638.51. See ECF No. 30. WHEREAS, subject to certain exceptions, § 638.51 makes it unlawful to “install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.” Cal. Penal Code § 638.51(a). And § 638.50(b) defines a “pen register” as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication.” Id. at § 638.50(b). WHEREAS, Plaintiff alleges that Mashable violated § 638.51 by, “without Plaintiff’s prior consent and without a court order,” installing and/or using on its website certain technologies, described by Plaintiff as “Trackers,” that “capture…the…‘routing, addressing, or signaling information’” of website visitors.” ECF No. 30, ¶¶ 3, 4. WHEREAS, on June 4, 2025, Mashable filed its Motion to Dismiss. ECF No. 34. WHEREAS, on October 9, 2025, the Court issued a written Order denying Mashable’s Motion to Dismiss. ECF No. 53. WHEREAS, on November 10, 2025, Mashable filed its Motion to Certify this Court’s Order Denying Mashable’s Motion to Dismiss for Interlocutory Appeal and for an Order to Stay Proceedings (“Motion to Certify”). ECF No. 56. WHEREAS, Mashable filed its answer to Plaintiff’s SAC on December 8, 2025, and the Parties thereafter exchanged Initial Disclosures. WHEREAS, on January 23, 2026, the Court issued a written Order denying Mashable’s Motion to Certify. ECF No. 80. Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 2 of 7
-2- 3:25-CV-01094-CRB STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, On January 8, 2026, the California Court of Appeal, Second Appellate District, issued in the Variety Appeal an Order to Show Cause directing the plaintiff to demonstrate “why the relief sought in the petition should not be granted.” The Court of Appeal instructed plaintiff to respond by February 9, 2026, and Variety to file its reply fifteen days thereafter. WHEREAS, the issues raised in the Variety Appeal are dispositive as to whether Plaintiff can bring claims against Mashable in this case. Specifically, the defendant in the Variety Appeal has argued that “Section 638.51 was never intended to regulate online tracking technologies . . . [particularly] in the context of routine, automated software deployed on commercial websites that allows operators of those sites to collect nonpersonal information about the visitors to those websites.” WHEREAS, in its Order denying Mashable’s Motion to Certify, this Court held that “[t]he question of whether CIPA’s pen register prohibition applies to the software on Mashable’s website is . . . controlling” and noted that “[i]f Mashable’s argument on applicability is correct, then [Plaintiff] could lose.” ECF No. 80 at 2. WHEREAS, because no other appellate court—whether in the Ninth Circuit or California Courts of Appeal—has issued a decision on the issue raised in the Variety Appeal and because the Court of Appeal’s forthcoming decision in the Variety Appeal will either dispose of or significantly streamline the issues in this case, the Parties have met and conferred and have agreed to stay this case pending a ruling in the Variety Appeal. NOW, THEREFORE, the Parties hereby jointly stipulate to stay and request the Court enter the concurrently filed proposed order staying the case pending a decision for the Court of Appeal in the Variety Appeal. IT IS SO STIPULATED. Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 3 of 7
-3- 3:25-CV-01094-CRB STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: February 18, 2026 PERKINS COIE LLP By: /s/ James G. Snell James G. Snell Mikella M. Hurley Timothy M. Carter Attorneys for Defendant MASHABLE, INC. Dated: February 18, 2026 BURSOR & FISHER, P.A. By: /s/ Philip L. Fraietta L. Timothy Fisher Joshua R. Wilner Philip L. Fraietta Max S. Roberts Attorneys for Plaintiff DAWN FREGOSA Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 4 of 7
-4- 3:25-CV-01094-CRB STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTESTATION Pursuant to L.R. 5-1(i)(3), I attest that each of the other signatories has concurred in the filing of this document. /s/ James G. Snell James G. Snell Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 5 of 7
3:25-CV-01094-CRB [PROPOSED] ORDER GRANTING STIPULATION STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James G. Snell (Bar No. 173070) JSnell@perkinscoie.com Timothy M. Carter (Bar No. 335212) TCarter@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, California 94304-1212 Telephone: +1.650.838.4300 Facsimile: +1.650.838.4350 Mikella M. Hurley (Pro Hac Vice) MHurley@perkinscoie.com PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: +1.202.654.6200 Facsimile: +1.202.654.6211 Attorneys for Defendant MASHABLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAWN FREGOSA, individually and on behalf of all others similarly situated, Plaintiff, v. MASHABLE, INC., Defendant. Case No. 3:25-CV-01094-CRB [PROPOSED] ORDER GRANTING STIPULATION TO STAY CASE PENDING RULING FROM CALIFORNIA COURT OF APPEAL Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 6 of 7
-1- 3:25-CV-01094-CRB [PROPOSED] ORDER GRANTING STIPULATION TO STAY CASE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER IT IS HEREBY ORDERED that for good cause shown, the Parties’ Stipulation to Stay Case Pending Ruling from California Court of Appeal is GRANTED. IT IS SO ORDERED. Dated:_______________________ _________________________________ HON. CHARLES R. BREYER UNITED STATES DISTRICT JUDGE February 19, 2026 Case 3:25-cv-01094-CRB Document 82 Filed 02/19/26 Page 7 of 7
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