California Court of Appeal

In plaintiff's suit against defendants, engaged in online marketing services, claiming violations of Business & Professions Code section 17529.5(a), which prohibits entities from advertising in a commercial electronic message that contains various types of deceptive content, trial court's grant of defendants' motion for summary judgment in ruling that the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) preempted plaintiff's section 17529.5 claims is reversed and remanded where: 1) plaintiff's section 17529.5 claims are not preempted by the CAN-SPAM Act; 2) plaintiff has raised a triable issue of fact regarding whether defendants violated section 17592.5, as plaintiff is not required to demonstrate that defendants sent or had knowledge of the offending emails and there are triable issue of facts with respect to whether the content of the emails violated section 17529.5 ; and 3) defendants are not entitled to summary adjudication as plaintiff may seek actual damages for any email it received within three years prior to the filing of the complaint and liquidated damages for any email received within one year prior to the filing of the complaint.

Appellate Information

• Decided 01/18/2011
• Published 01/19/2011

Judges

• ZELON

Court

• California Court of Appeal

Counsel

• For Appellant:
  
• Richard K. Willard, Daniel M. Kolkey