The opinion
Filed 9/16/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
APRIL KAY MOORE, et al., B310859
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV19196)
v.
CENTRELAKE MEDICAL GROUP,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kenneth R. Freeman, Judge. Affirmed
in part and reversed in part.
Wilshire Law Firm, Bobby Saadian, Justin F. Marquez,
Thiago M. Coelho, Robert J. Dart and Jessica Behmanesh for
Plaintiffs and Appellants.
Baker & Hostetler, Paul Karlsgodt, Matthew D.
Pearson and Teresa C. Chow for Defendant and Respondent.
_____________________________________________
INTRODUCTION
Appellants April Kay Moore, Kimberly Joy, and Yvette
McKinley are patients at medical facilities operated by
respondent Centrelake Medical Group. In reliance on
Centrelake’s allegedly false representations that it employed
reasonable safeguards for patients’ personal identifying
information (PII), appellants entered into contracts with
Centrelake. Their contracts allegedly incorporated a privacy
policy, in which Centrelake promised to maintain adequate
data security practices to protect appellants’ PII from
unauthorized access by third parties. In early 2019,
Centrelake suffered a data breach, in which appellants’ PII
was allegedly stolen by hackers and disseminated into the
public domain. In April 2019, Centrelake issued a notice of
the data breach, acknowledging that patient records and
data might have been taken, and encouraging patients to
protect themselves from identity theft or fraud, including by
monitoring their credit and financial accounts. Appellants
spent time on such monitoring, and appellant McKinley
purchased credit and identity monitoring services.
2
In June 2019, appellants brought this action against
Centrelake on behalf of themselves and a putative class of
patients affected by the data breach. The complaint
contained causes of action for breach of contract, negligence,
and violations of the Unfair Competition Law (UCL),
Business and Professions Code section 17200 et seq.
Appellants alleged they suffered several injuries as a result
of Centrelake’s failure to maintain adequate data security,
including: (1) overpayments for Centrelake’s services, which
did not include the adequate data security for which they
had bargained; (2) time and money spent on credit
monitoring and other measures to mitigate risks posed by
the data breach; and (3) deprivation of some portion of the
value of their PII.
Centrelake demurred, arguing that appellants had
failed to adequately plead any cognizable injury, and that
their negligence claim was barred by the economic loss rule.
Appellants opposed the demurrer. In a footnote to their
opposition brief, and at the hearing on the demurrer,
appellants requested leave to amend their complaint to add
allegations of future harm, viz., future costs to be incurred
retaking medical tests in order to replace medical records
that had been lost in the data breach. The trial court
sustained the demurrer to all claims without leave to amend,
concluding: (1) appellants had failed to adequately plead any
injury sufficient to support either (a) standing to bring their
UCL claim, or (b) the damages elements of their contract
and negligence claims; and (2) appellants’ negligence claim
3
was barred by the economic loss rule. The court entered a
judgment dismissing all claims.
On appeal, appellants contend the court erred in
sustaining the demurrer with respect to each of their claims,
and abused its discretion in denying their request for leave
to amend. We conclude appellants adequately alleged UCL
standing and contract damages under their benefit-of-the-
bargain theory, and appellant McKinley, who purchased
monitoring services, did the same under appellants’
monitoring-costs theory. However, appellants have not
shown the court erred in dismissing their negligence claim
under the economic loss rule; nor have they shown the court
abused its discretion in denying their request for leave to
amend. Accordingly, we affirm the judgment with respect to
the dismissal of appellants’ negligence claim without leave to
amend, but reverse with respect to appellants’ UCL and
contract claims. For guidance on remand, we address
appellants’ lost-value-of-PII theory, and conclude they failed
to adequately plead it as a basis for either UCL standing or
contract damages.
PROCEEDINGS BELOW
A. Appellants’ Complaint
In June 2019, appellants filed the complaint in this
action on behalf of themselves and a putative class of all
California residents whose PII was compromised as a result
of Centrelake’s early 2019 data breach. The facts stated in
this subsection are taken from the complaint’s factual
4
allegations, which we presume to be true for purposes of
reviewing the trial court’s ruling on Centrelake’s demurrer.
1. The Data Breach
Centrelake is a medical provider operating eight
medical facilities in southern California. Prior to January 9,
2019, appellants became patients of Centrelake. Centrelake
“made repeated promises and representations” to appellants
“that it would protect its patients’ PII from disclosure to
unauthorized third parties.” Each appellant signed a
contract with Centrelake that incorporated a contractually
binding privacy policy, viz., Centrelake’s Notice of Privacy
Practices (attached to the complaint as an exhibit), in which
Centrelake promised to take appropriate steps to attempt to
safeguard any medical or other personal information
provided to it. Centrelake also published its Notice of
Privacy Practices to the public on its website. However, the
Notice of Privacy Practices contained false statements
concerning data security.
Centrelake failed to implement reasonable security
practices to protect appellants’ PII. As a result, from
January 9 to February 19, 2019, Centrelake suffered a data
breach, during which appellants’ PII was “stolen” (in other
words, “acquired” or “harvested”) by hackers, and
“disseminat[ed] into the public domain.” The stolen PII
included contact information (names, addresses, and phone
numbers), Social Security numbers, driver’s license
information, and medical information (services performed,
5
diagnosis information, health insurance information,
referring provider information, medical record number, and
dates of service).
In April 2019, Centrelake issued a Notice of Data
Breach (attached to the complaint as an exhibit). The Notice
stated that “suspicious activity” began on Centrelake’s
network on January 9, 2019 and continued for over a month
until, on February 19, Centrelake discovered that a hacker
had infected Centrelake’s system with a virus that
prohibited its access to its files. Centrelake announced that
its ongoing investigation had yet to uncover any evidence
that the hacker viewed or took patient information, or any
indication that such information had been misused.
However, Centrelake acknowledged that the hacker might
have gained access to patient records and data. Centrelake
encouraged affected individuals to “remain vigilant against
incidents of identity theft and fraud” by regularly reviewing
their credit reports, financial account statements, and
explanations of benefits for suspicious activity. Centrelake
provided a toll-free phone line staffed with individuals
familiar with the data breach, and invited calls from
patients with questions regarding how to protect themselves
from “potential harm resulting from this incident,” including
how to place fraud alerts on the patients’ credit files.
2. Causes of Action
Appellants’ first and second causes of action were for
breach of contract and breach of the covenant of good faith
6
and fair dealing (contract claims). 1 Appellants alleged
Centrelake breached its contracts with them by (1) failing to
“implement and maintain reasonable security procedures to
protect Plaintiffs’ and Class Members’ PII from
unauthorized access, destruction, use, modification, or
disclosure”; and (2) failing to prevent unauthorized third
parties from obtaining such access.
Appellants’ third and fourth causes of action were for
“negligence per se” and negligence. 2 Appellants alleged:
(1) Centrelake entered into a “‘special relationship’” with
appellants “when [Centrelake] contracted with [them] for
medical services and obtained their PII from them”;
(2) Centrelake owed appellants a duty of care in protecting
their PII, because inadequate data security practices would
foreseeably cause them harm; and (3) Centrelake breached
that duty by adopting inadequate safeguards to protect their
PII.
1
The parties and the trial court analyzed the contract claims
together. (See Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th
905, 929 (Sheen) [“‘The remedy for breach of [the implied]
covenant [of good faith and fair dealing] is generally limited to
contract damages’”].) We do the same.
2
Appellants expressly do not challenge the trial court’s
conclusion that their purported cause of action for negligence per
se failed to state a claim, as negligence per se is not an
independent cause of action, but rather an evidentiary doctrine
applied in negligence actions. We need not further address the
negligence per se claim.
7
Appellants’ fifth and final cause of action was for
violations of the UCL. Appellants alleged Centrelake
violated the Health Insurance Portability and Accountability
Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.) and the
public policy expressed therein, rendering its business
practices both unlawful and unfair, by (1) failing to
“implement and maintain reasonable security procedures to
protect Plaintiffs’ and Class Members’ PII from
unauthorized access, destruction, use, modification, or
disclosure”; and (2) failing to prevent unauthorized third
parties from obtaining such access. Appellants further
alleged Centrelake’s business practices were fraudulent
“because they involved representations to the public which
[we]re likely to deceive,” including false statements
concerning data security in its Notice of Privacy Practices.
Appellants sought compensatory damages, restitution,
and injunctive relief requiring Centrelake to implement
reasonable data security practices.
3. Alleged Injuries
Appellants alleged they suffered several injuries.
First, appellants alleged they overpaid for Centrelake’s
medical services, in that they paid for but did not receive
reasonable and adequate security for their PII. In other
words, appellants “paid more for [Centrelake]’s services than
they [otherwise] would have paid” had they known their PII
would not be protected. Relatedly, appellants “relied on
[Centrelake]’s [privacy] representations in entering into
8
contracts with Defendants for medical services, which they
would not have entered had they known their PII would be
unprotected.”
Second, appellants alleged they suffered
“[a]scertainable losses in the form of out-of-pocket expenses
and the value of their time reasonably incurred to remedy or
mitigate the effects of the data breach.” As a result of
Centrelake’s failure to implement adequate data security,
the data breach placed appellants at risk of suffering
identity theft and fraud, and they were “forced to adopt
costly and time-consuming preventive and remediating
efforts.” All appellants were required to spend time, inter
alia, monitoring their credit reports and accounts for
unauthorized activity. In addition, appellant McKinley
purchased credit and personal identity monitoring services,
as a “reasonable and necessary” prophylactic measure.
Although appellants Moore and Joy had not made such
purchases, they would be forced to do so in the future.
Finally, appellants alleged they suffered
“[a]scertainable losses in the form of deprivation of the value
of their PII, for which there is a well-established national
and international market.” In general terms, appellants
alleged that hackers and other criminals value stolen PII,
and that some legitimate businesses pay users for PII.
Appellants did not allege they ever had received payment for
their PII, or expected to do so in the future.
9
B. Centrelake’s Demurrer
In August 2020, Centrelake demurred to the
complaint. It challenged each of appellants’ causes of action
on the ground that appellants failed to allege any cognizable
3
injury. With respect to appellants’ allegations that they
overpaid for Centrelake’s services in reliance on its
representations concerning data security, Centrelake argued
this benefit-of-the-bargain theory was too “‘flimsy’” to
establish cognizable injury, as appellants paid for and
received medical services, which they did not allege were
deficient. Further, Centrelake challenged appellants’
reliance on costs incurred in monitoring their credit, arguing
their monitoring-costs theory was deficient because (1) mere
time spent monitoring credit was not cognizable;
(2) appellants Moore and Joy had not purchased monitoring
3
Neither in the trial court nor in its appellate brief did
Centrelake contend that appellants failed to adequately plead the
existence of enforceable contracts incorporating its Notice of
Privacy Practices. At oral argument, Centrelake argued for the
first time that appellants failed to adequately plead consideration
for such contracts, because Centrelake was required to issue its
Notice of Privacy Practices under HIPAA and one of its
implementing regulations (45 C.F.R. § 164.520). Centrelake has
forfeited this untimely argument. (See In re I.C. (2018) 4 Cal.5th
869, 888, fn. 5 [respondent forfeited argument raised for first
time at oral argument “by failing to raise it in a timely manner”];
J & A Mash & Barrel, LLC v. Superior Court of Fresno County
(2022) 74 Cal.App.5th 1, 32, fn. 9 [“‘“[C]ontentions raised for the
first time at oral argument are disfavored and may be rejected
solely on the ground of their untimeliness”’”].)
10
services, instead merely alleging they expected to do so in
the future; and (3) although appellant McKinley had
purchased monitoring services, her purchase was prompted
by mere risks of identity theft and fraud, not by any actual
occurrence of such crimes. Finally, Centrelake argued
appellants’ theory that the data breach diminished the value
of their PII was insufficient to establish cognizable harm,
because appellants did not allege they ever intended to sell
their PII or were foreclosed from using it in a value-for-value
transaction.
Centrelake challenged appellants’ negligence cause of
action on the additional ground that it was barred by the
economic loss rule, which generally bars recovery in
negligence for purely economic losses, meaning financial
harm unaccompanied by personal injury or property
damage. (See Sheen, supra, 12 Cal.5th at 922.) Anticipating
appellants’ contention that the rule did not apply because
the parties entered into a special relationship, Centrelake
argued this special-relationship exception was inapplicable
because, inter alia, appellants alleged their relationship with
Centrelake was contractual.
In September 2020, appellants opposed the demurrer.
Appellants argued they had adequately pled cognizable
injuries under benefit-of-the-bargain, monitoring-costs, and
lost-value-of-PII theories. Appellants further argued the
economic loss rule did not bar their negligence claim because
(1) the parties entered into a special relationship;
(2) appellants’ time spent monitoring their credit and
11
identities was a non-economic loss; and (3) independent of
the parties’ contracts, Centrelake had a duty under HIPAA
to protect appellants’ PII. 4 In a footnote, appellants
referenced purported allegations (not included in their
complaint) that they “lost access to medical records due to
the encryption of their data,” and added: “To the extent that
the Court finds that this theory is not adequately alleged in
the Complaint, Plaintiffs respectfully request leave to
amend.”
In reply, Centrelake generally repeated the arguments
in its initial brief. In addition, Centrelake argued appellants
alleged no facts to “support the proposition” that their PII
was taken by the hackers. Centrelake asserted: “[This case]
is not even a data-breach case. It is a ransomware-attack
case where criminals unlawfully encrypted Centrelake’s data
and refused to de-encrypt it absent a fee.”
4
Appellants also argued Centrelake had an independent
duty under Civil Code section 1798.81.5 and the Federal Trade
Commission Act (15 U.S.C. § 41 et seq.). On appeal, appellants
do not mention either statute, instead relying solely on HIPAA.
We note that where HIPAA applies, Civil Code section 1798.81.5
does not. (See Civ. Code, § 1798.81.5, subd. (e)(3) [“The
provisions of this section do not apply to . . . [a] covered entity
governed by the medical privacy and security rules issued . . .
pursuant to [HIPAA]”].)
12
C. Hearing and Ruling
In October 2020, the trial court held a hearing on
Centrelake’s demurrer. Centrelake argued appellants’ lost-
value-of-PII and benefit-of-the-bargain theories were
insufficient to plead cognizable injury. In support of these
arguments, Centrelake asserted the complaint did not allege
the hackers obtained patients’ PII, as opposed to merely
encrypting it. In response, appellants observed their
complaint did, in fact, allege the hackers obtained their PII,
and argued the court was required to accept this allegation
as true in ruling on Centrelake’s demurrer. Appellants’
counsel also elaborated on their request for leave to amend:
“[A]fter the complaint was filed, we found out that the
plaintiffs no longer had access to their records. So that
means that in the future they will have to have those same
tests done again and they will have to pay for it. That future
harm is the cost of the additional records for [sic] which they
lost. [¶] So we ask simply for leave to amend as to the future
risk of harm . . . .” The court took the matter under
submission.
In November 2020, the court issued an order
sustaining Centrelake’s demurrer to all appellants’ claims
without leave to amend.5 The court concluded appellants
failed to adequately plead a loss of money or property, as
5
The court did not address appellants’ request for leave to
amend their complaint to add allegations concerning a future
need to retake medical tests.
13
required to establish standing to bring their UCL claim, or
cognizable damages, as required to state their contract and
negligence claims. Appearing to accept Centrelake’s
characterization of the complaint as alleging mere
encryption of PII in a ransomware attack, the court stated
the complaint contained “no allegation that the security
breach has, in fact, resulted in a dissemination of the PII.”
Relying on this characterization, the court deemed
appellants’ benefit-of-the-bargain theory insufficient:
“Plaintiffs allege only that there was a security breach
stemming from the Ransomware Attack. Without more,
such as an allegation . . . that there was actual
misappropriation of the PII, the benefit of the bargain theory
fails. [¶] Plaintiffs have not made that allegation and
cannot, based on the allegations on the face of the
complaint.” The court further rejected appellants’
monitoring-costs theory, reasoning that “‘general allegations
of lost time are too speculative to constitute cognizable
injury,’” and that even appellant McKinley’s completed
purchase of monitoring services did not constitute present
injury, because it was made in response to a mere future risk
of harm. Finally, the court rejected appellants’ lost-value-of-
PII theory, reasoning that (1) such a theory had been
rejected in federal cases, including In re Jetblue Airways
Corp. Privacy Litigation (E.D.N.Y. 2005) 379 F.Supp.2d 299
(Jetblue); and (2) to the extent other federal cases approved
such a theory, they were distinguishable, because appellants
14
did not allege Centrelake voluntarily disclosed their PII or
that their PII had been misused.
The court additionally concluded appellants’ negligence
claim was barred by the economic loss rule, because
appellants sought recovery for financial losses
unaccompanied by personal injury or property damage. The
court rejected appellants’ reliance on the special-relationship
exception to the rule, reasoning that appellants did not
allege any “third party relationship” with Centrelake, but
instead alleged they and Centrelake were “in direct
contractual privity.” In concluding the rule barred
appellants’ recovery of their asserted damages for lost time,
the court declined to follow Bass v. Facebook, Inc. (N.D. Cal.
2019) 394 F.Supp.3d 1024 (Bass), on which appellants relied,
instead following two cases it deemed better reasoned. (See
Dugas v. Starwood Hotels & Resorts Worldwide, Inc. (S.D.
Cal., Nov. 3, 2016, No. 3:16-CV-00014-GPC-BLM) 2016 U.S.
Dist. LEXIS 152838, *36-*37 (Dugas) [economic loss rule
barred recovery of lost-time damages]; Castillo v. Seagate
Technology, LLC (N.D. Cal., Sept. 14, 2016, No. 16-CV-
01958-RS) 2016 U.S. Dist. LEXIS 187428, at *5, *17-*20
[same].)
In January 2021, the court entered a judgment
dismissing all appellants’ claims. Appellants timely
appealed.
15
DISCUSSION
“On appeal from a judgment of dismissal after a
demurrer is sustained without leave to amend, appellate
courts assume the truth of all facts properly pleaded by the
plaintiff-appellant and may also consider matters subject to
judicial notice, [but] ‘not contentions, deductions, or
conclusions of fact or law.’ [Citations.] [¶] Likewise, the
reviewing court . . . considers all evidentiary facts found in
recitals of exhibits attached to the complaint [citation].”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs
(The Rutter Group 2021) ¶ 8:136.) “Appellate courts will
examine the complaint’s factual allegations to ‘determine de
novo whether the complaint states facts sufficient to state a
cause of action under any possible legal theory.’” (Ibid.) “If
facts appearing in exhibits to a complaint conflict with the
allegations of the complaint, . . . the appellate court will
accept as true the factual contents of the exhibits rather
than the factual allegations of the complaint. [Citations.]
[¶] However, where the exhibits are ambiguous and can be
construed as suggested by plaintiff, the court must accept
plaintiff’s construction.” (Id. at ¶ 8:136.1a.)
Applying these standards, we reject Centrelake’s
continued attempts on appeal to mischaracterize appellants’
complaint as failing to allege that appellants’ PII was
obtained by any third party. In fact, the complaint alleged
that “unauthorized individuals gained access to and
harvested” appellants’ PII, that “patient information was
stolen,” and that the stolen PII was “disseminat[ed] into the
16
public domain.” These allegations were consistent with
Centrelake’s Notice of Data Breach, attached as an exhibit.
Although the Notice of Data Breach stated Centrelake’s
ongoing investigation had yet to uncover evidence that
patients’ PII had been taken, the Notice also acknowledged
that a hacker had gained access to Centrelake’s servers
containing patients’ PII over a month earlier, and that the
hacker might have accessed patient records and data.
Indeed, that is precisely why Centrelake encouraged
patients to remain vigilant against identity theft and fraud,
and established a hotline to assist them in doing so.
Accordingly, in reviewing the ruling on Centrelake’s
demurrer below, we accept as true appellants’ allegations
that their PII was stolen and publicly disseminated. (See
Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs,
supra, ¶¶ 8:136, 8:136.1a.)
A. Appellants Adequately Pled a UCL Claim
Appellants contend the trial court erred in sustaining
Centrelake’s demurrer to their UCL claim on the basis of the
court’s conclusion they failed to allege a loss of money or
property, as required to plead UCL standing. We agree.
1. Principles
A private plaintiff has standing to bring a UCL claim if
the plaintiff “has suffered injury in fact and has lost money
or property as a result of the unfair competition.” (Bus.
& Prof. Code, § 17204.) In other words, the plaintiff must
17
have suffered a “loss or deprivation of money or property
sufficient to qualify as injury in fact, i.e., economic injury
. . . .” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th
310, 322 (Kwikset).) The UCL incorporates the meaning of
injury in fact as a requirement for Article III standing to sue
in federal court, under which it suffices to allege “‘“some
specific, ‘identifiable trifle’ of injury.”’” (Id. at 322, 324; see
also id. at 325 [“If a party has alleged or proven a personal,
individualized loss of money or property in any nontrivial
amount, he or she has also alleged or proven injury in fact”].)
“There are innumerable ways in which economic injury from
unfair competition may be shown. A plaintiff may
(1) surrender in a transaction more, or acquire in a
transaction less, than he or she otherwise would have; (2)
have a present or future property interest diminished; (3) be
deprived of money or property to which he or she has a
cognizable claim; or (4) be required to enter into a
transaction, costing money or property, that would otherwise
have been unnecessary.” (Id. at 323.)
2. Benefit of the Bargain
We conclude appellants adequately pled UCL standing
under their benefit-of-the-bargain theory. “[A] ‘benefit of the
bargain’ approach to establishing UCL standing is rooted in
the California Supreme Court’s recognition that a plaintiff
may demonstrate economic injury from unfair competition
by establishing he or she ‘surrender[ed] in a transaction
more, or acquire[d] in a transaction less, than he or she
18
otherwise would have.’” (Cappello v. Walmart Inc. (N.D. Cal.
2019) 394 F.Supp.3d 1015, 1019-1020, quoting Kwikset,
supra, 51 Cal.4th at 323; see also Kwikset, at 332 [plaintiffs
adequately pled UCL standing, where plaintiffs alleged
“[t]hey bargained for locksets that were made in the United
States” but “got ones that were not,” and thus did not receive
the benefit of their bargain].) Here, appellants alleged they
relied on Centrelake’s false representations and promises
concerning data security in entering contracts with
Centrelake and accepting its pricing terms, paying more
than they would have had they known the truth that
Centrelake had not implemented and would not maintain
adequate data security practices. We conclude these
allegations adequately pled UCL standing under Kwikset.
(See Kwikset, at 330 [plaintiffs alleged they selected locksets
for purchase in part because locksets were mislabeled as
made in USA: “because of the misrepresentation the
consumer (allegedly) was made to part with more money
than he or she otherwise would have been willing to expend
. . . . That increment, the extra money paid, is economic
injury and affords the consumer standing to sue”].) Indeed,
many federal courts, applying Kwikset in the context of data-
breach litigation, have held plaintiffs adequately pled UCL
standing under similar benefit-of-the-bargain theories. (See,
e.g., In re Solara Medical Supplies, LLC Customer Data
Security Breach Litigation (S.D. Cal., May 7, 2020, No. 3:19-
CV-2284-H-KSC) 2020 U.S. Dist. LEXIS 80736, at *4, *27
(Solara) [“Plaintiffs have all pled that ‘they acquired less in
19
their transactions with [medical supplier] than they would
have if [supplier] had sufficiently protected their Personal
Information.’ [Citation.] These allegations are enough to
establish standing for purposes of the UCL”]; In re Marriott
International, Inc., Customer Data Security Breach
Litigation (D. Md. 2020) 440 F.Supp.3d 447, 492 [“Plaintiffs
allege that ‘had consumers known the truth about
Defendants’ data security practices -- that they did not
adequately protect and store their data -- they would not
have stayed at a Marriott Property, purchased products or
services at a Marriott Property, and/or would have paid less.’
[Citation.] This is sufficient to establish standing for the
UCL claim”].)6
6
We find these cases more persuasive than the federal cases
on which Centrelake relies, which did not cite Kwikset. (See
Fernandez v. Leidos, Inc. (E.D. Cal. 2015) 127 F.Supp.3d 1078,
1089 [plaintiff failed to adequately plead UCL standing, where
plaintiff alleged defendant contracted with plaintiff’s employer to
provide data security, but defendant left data tapes containing
plaintiff’s PII unattended in car, allowing PII to be stolen];
Estrada v. Johnson & Johnson (E.D. Cal., Mar. 26, 2015, No.
2:14-CV-01051-TLN-EFB) 2015 U.S. Dist. LEXIS 39581, *12-*13
[same, where plaintiff alleged defendant failed to warn her that
defendant’s talc-based baby powder would increase her risk of
ovarian cancer]; Dozier v. Walmart Inc. (C.D. Cal., Mar. 5, 2021,
No. CV20-05286-AB(PVCX)) 2021 U.S. Dist. LEXIS 76852, at *4-
*5, *12-*16 [same, where plaintiff alleged retailer from which he
bought new tires failed to comply with federal regulation
requiring it to facilitate registration of tires with manufacturer].)
20
We disagree with the trial court’s conclusion that
appellants’ benefit-of-the-bargain theory failed because
appellants did not allege “actual misappropriation of the
PII.” As explained above, at this stage of the litigation, we
are required to accept as true appellants’ allegations that
their PII was stolen and disseminated into the public
domain. In any event, appellants’ economic injury allegedly
occurred at the time Centrelake unlawfully caused them to
pay more than they otherwise would have. (See Kwikset,
supra, 51 Cal.4th at 334 [“in the eyes of the law, a buyer
forced to pay more than he or she would have is harmed at
the moment of purchase”].) This alleged injury was not
contingent upon any subsequent misappropriation of
appellants’ PII.
We also disagree with Centrelake’s contention that
appellants’ benefit-of-the-bargain theory fails because data
security was at most “incidental” to appellants’ bargain for
medical services. To the contrary, appellants alleged that
data security was sufficiently material to them that had they
known the truth of the matter, they would not have entered
into contracts for medical services with Centrelake, or would
not have accepted Centrelake’s pricing terms. Such
materiality is to be expected in light of the sensitive and
confidential nature of the information appellants entrusted
to Centrelake, including medical diagnoses and services
performed, as well as Social Security numbers, driver’s
license numbers, and health insurance information. Few
prospective patients would entrust such information -- and
21
pay full market prices -- to a medical provider known to be
careless with it. Indeed, the Legislature has acted to protect
patients’ expectations that their information will be kept
confidential and secure. (See Civ. Code, § 56.101, subds.
(a)-(b) [requiring health care providers to maintain medical
information in manner that preserves its confidentiality, and
electronic medical records systems to protect and preserve
integrity of electronic medical information]; cf. Kwikset,
supra, 51 Cal.4th at 333 [by prohibiting fraudulent made-in-
America representations, Legislature made clear that
products’ American origin “is precisely the sort of
consideration reasonable people can and do attach
importance to in their purchasing decisions”].) Moreover, “as
‘materiality is generally a question of fact’ [citation], it is not
7
a basis on which to decide this case on demurrer.” (Kwikset,
at 333.)
7
Centrelake argues that under Kwikset, even a material
misrepresentation cannot support a UCL claim unless the
misrepresentation was “relate[d] to the product” purchased by the
plaintiff. Under this reading of Kwikset, Centrelake suggests, its
alleged misrepresentations concerning data security did not
support appellants’ UCL standing because its misrepresentations
did not “describe[] its medical services.” Centrelake identifies no
support for this reading of Kwikset in the opinion itself, and we
discern none. At oral argument, Centrelake argued for the first
time that Kwikset is distinguishable because Centrelake’s Notice
of Privacy Practices was required under HIPAA. As noted above,
Centrelake forfeited its untimely arguments concerning this
(Fn. is continued on the next page.)
22
Centrelake’s reliance on Irwin v. Jimmy John’s
Franchise, LLC (C.D. Ill. 2016) 175 F.Supp.3d 1064 is
misplaced. There, the plaintiff used debit and credit cards to
purchase food at Jimmy John’s restaurant, which suffered a
data breach potentially exposing the plaintiff’s financial
information to unauthorized third parties, prompting the
plaintiff to sue Jimmy John’s in federal court on behalf of
herself and a putative class of affected consumers. (Id. at
1068.) In the portion of the opinion on which Centrelake
relies, the court dismissed the plaintiff’s unjust enrichment
claim under Arizona and Illinois law, reasoning: “[Plaintiff]
paid for food products. She did not pay for a side order of
data security and protection; it was merely incident to her
food purchase . . . .” (Id. at 1071-1072.) But in a separate,
more relevant portion of the opinion, the court held the
plaintiff had adequately pled a claim under an Arizona
consumer-protection statute similar to the UCL, by alleging
the restaurant induced her and other consumers to make
purchases in reliance on the restaurant’s deceptive
indications that their financial information would be secure.
(See id. at 1072-1073.) Thus, to the extent this case is
relevant to appellants’ UCL claim, it supports their benefit-
of-the-bargain theory. We conclude appellants adequately
pled that theory as a basis for UCL standing.
HIPAA requirement. (See, e.g., In re I.C., supra, 4 Cal.5th at
888.)
23
3. Monitoring Costs
We further conclude appellant McKinley adequately
pled UCL standing under appellants’ monitoring-costs
theory. Under Kwikset, economic injury may be shown
where, as a result of the defendant’s unlawful conduct, the
plaintiff is “required to enter into a transaction, costing
money or property, that would otherwise have been
unnecessary.” (Kwikset, supra, 51 Cal.4th at 323.) Here,
McKinley alleged just that: because of Centrelake’s unlawful
failure to implement adequate data security, which resulted
in the theft of McKinley’s PII and an attendant risk of
identity theft and fraud, she was forced to purchase credit
and identity monitoring services as a reasonable and
necessary prophylactic measure. We conclude these
allegations adequately pled economic injury under Kwikset.
(See, e.g., Huynh v. Quora, Inc. (N.D. Cal. 2020) 508
F.Supp.3d 633, 659-661 [plaintiff raised triable issue of fact
regarding UCL standing by presenting evidence that
defendant’s challenged conduct compelled her to spend
money on credit monitoring services: “payments toward
enhanced credit monitoring that arise from a data breach
and that are not reimbursed . . . ‘constitute economic injury,
sufficient to confer UCL standing’” (collecting cases applying
Kwikset)]; accord, Witriol v. LexisNexis Grp. (N.D. Cal. Feb.
10, 2006) No. C05-02392 MJJ, 2006 U.S. Dist. LEXIS 26670,
at *18-*19 [plaintiff adequately pled UCL standing by
alleging he incurred costs monitoring and repairing credit
after defendants released his PII to third parties without
24
authorization]; cf. Ghazarian v. Magellan Health, Inc. (2020)
53 Cal.App.5th 171, 193 [reversing summary judgment for
defendant on UCL claim: “Due to the wrongful denial of
their insurance claim, plaintiffs retained and paid an
attorney to assist them with the IMR process. This is
sufficient to establish standing under the UCL. . . . The
transaction would have been unnecessary without
8
defendants’ conduct”].)
Centrelake argues McKinley’s purchase of monitoring
services was unreasonable and unnecessary, relying on
factors articulated by our Supreme Court in a toxic tort case,
for assessing the reasonableness and necessity of medical
monitoring. (See Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 1009.) Centrelake does not attempt to
reconcile this argument with its own Notice of Data Breach,
which encouraged patients to remain vigilant against
identity theft and fraud, including by monitoring their credit
and financial accounts. (See Huynh v. Quora, Inc., supra,
508 F.Supp.3d at 652-653 [jury could reasonably find
plaintiff’s purchase of credit monitoring services in wake of
data breach was reasonable and necessary, where
8
Again, Centrelake relies on federal cases that did not cite
Kwikset. (See Ruiz v. Gap, Inc. (N.D. Cal. 2009) 622 F.Supp.2d
908, 914; Gardner v. Health Net, Inc. (C.D. Cal., Aug. 12, 2010,
No. CV 10-2140 PA (CWX)) 2010 U.S. Dist. LEXIS 157448, at
*11; Storm v. Paytime, Inc. (M.D. Pa. 2015) 90 F.Supp.3d 359,
367; In re SuperValu, Inc. (D. Minn. Jan. 7, 2016, No. 14-MD-
2586 ADM/TNL) 2016 U.S.Dist.LEXIS 2592, at *19--*20.)
25
defendant’s notice of data breach could reasonably be
interpreted to indicate “the severity of the Data Breach, and
therefore the threat of identity theft or fraud, was still
unknown”].) Moreover, appellants alleged McKinley’s
purchase was reasonable and necessary. Nothing in the
record permits us to decree these allegations untrue, as a
matter of law, at this early stage of the litigation. (See
Schmitt v. SN Servicing Corp. (N.D.Cal. Aug. 9, 2021, No.
21-cv-03355-WHO) 2021 U.S.Dist. LEXIS 149252, at *25
[“To the extent that [defendant] factually disputes whether
plaintiffs’ credit monitoring costs were ‘required’ or
‘necessary,’ that cannot be resolved at this [motion to
dismiss] stage”]; cf. Potter v. Firestone Tire & Rubber Co.,
supra, at 1009 [medical-monitoring factors are to be applied
by trier of fact on basis of competent medical testimony];
Ruiz v. Gap, Inc., supra, 622 F.Supp.2d at 914 [granting
defendants summary judgment on plaintiff’s negligence
claim, where plaintiff sought to recover costs of credit
monitoring, but had not “presented evidence sufficient to
overcome the kind of evidentiary burdens that apply in
medical monitoring cases” (italics added)].)
We need not decide whether appellants Moore and Joy,
who did not allege they had purchased monitoring services,
adequately pled UCL standing under their monitoring-costs
theory. As explained above, they adequately pled UCL
standing under their benefit-of-the-bargain theory.
26
B. Appellants Adequately Pled Contract Claims
Appellants contend the trial court erred in sustaining
Centrelake’s demurrer to their contract claims based on the
court’s conclusion that they failed to adequately plead any
cognizable contract damages. We agree.
1. Principles
“Contract damages compensate a plaintiff for its lost
expectation interest. This is described as the benefit of the
bargain that full performance would have brought.’” (New
West Charter Middle School v. Los Angeles Unified School
Dist. (2010) 187 Cal.App.4th 831, 844 (New West); accord, 24
Williston on Contracts (4th ed. 2022) § 64:3.) “Contractual
damages are of two types -- general damages (sometimes
called direct damages) and special damages (sometimes
called consequential damages).” (Lewis Jorge Construction
Management, Inc. v. Pomona Unified School Dist. (2004) 34
Cal.4th 960, 968 (Lewis Jorge).) “General damages are often
characterized as those that flow directly and necessarily
from a breach of contract, or that are a natural result of a
breach.” (Ibid.) General damages “‘are based on the value of
the performance itself, not on the value of some consequence
that performance may produce.’” (Id. at 971; see also 24
Williston on Contracts, supra, § 64:3 [“When the promisor
fails to perform as promised, the promisee becomes entitled
to damages designed to compensate him or her for . . . the
loss . . . [of] the value to the promisee of the promise that
was broken”].)
27
“Special damages . . . represent loss that ‘occurred by
reason of injuries following from’ the breach.” (Lewis Jorge,
supra, 34 Cal.4th at 969; see also 24 Williston on Contracts,
supra, § 64:16 [“Consequential damages are those damages
that do not flow directly and immediately from the breach,
but only from some of the consequences or results of the
breach”].) “Special damages for breach of contract are
limited to losses that were either actually foreseen [citation]
or were ‘reasonably foreseeable’ when the contract was
formed.” (Lewis Jorge, at 970.) Foreseeability is an issue of
fact. (Ash v. North American Title Co. (2014) 223
Cal.App.4th 1258, 1268; cf. Lewis Jorge, at 977 [relying on
trial evidence in holding contractor’s lost profits were neither
foreseen nor foreseeable].)
2. Benefit of the Bargain
We conclude appellants adequately pled general
damages under their benefit-of-the-bargain theory.
Centrelake allegedly made and breached a contractually
binding promise to take appropriate steps to secure
appellants’ PII. General damages for this alleged breach
include the value to appellants of the promised data security
(i.e., performance itself). (See Lewis Jorge, 34 Cal.4th at
968; New West, supra, 187 Cal.App.4th at 844 [proper
measure of damages for school district’s breach of promise to
allow charter school to co-locate with another school was
value of promised co-location, minus costs charter school
would have incurred in co-locating]; cf. In re Adobe Systems,
28
Inc. Privacy Litigation (N.D. Cal. 2014) 66 F.Supp.3d 1197,
1224 [plaintiffs adequately pled UCL standing, where
plaintiffs alleged they spent more on Adobe products than
they would have had they known Adobe was not providing
reasonable data security as it represented it was: “It is
. . . plausible that a company’s reasonable security practices
reduce the risk of theft of customer’s personal data and thus
that a company’s security practices have economic value”].)
Indeed, federal cases applying California law have allowed
plaintiffs to seek contract damages for the lost value of
promised data security or privacy. (See In re Anthem, Inc.
Data Breach Litigation (N.D. Cal., May 27, 2016, No. 15-MD-
02617-LHK), 2016 U.S. Dist. LEXIS 70594, *123-*128
[plaintiffs adequately pled contract damages, where
plaintiffs alleged defendants deprived them of “‘the
difference in value between what Plaintiffs should have
received from Defendants when they enrolled in and/or
purchased insurance from Defendants that Defendants
represented, contractually and otherwise, would be protected
by reasonable data security, and Defendants’ partial,
defective, and deficient performance by failing to provide
reasonable and adequate data security’” (citing New West, at
844)]; Svenson v. Google Inc. (N.D. Cal., Apr. 1, 2015, No. 13-
CV-04080-BLF) 2015 U.S. Dist. LEXIS 43902, *12-*15
[same, where plaintiff alleged Google’s payment-processing
service was “worth quantifiably less” as a result of Google’s
breach of its promise not to share plaintiff’s personal
information with app vendor]; cf. In re Marriott
29
International, Inc., Customer Data Security Breach
Litigation, supra, 440 F.Supp.3d at 465-466, 494-495 [same,
addressing data-breach contract claims under Maryland,
New York, and Oregon law].)
In challenging appellants’ benefit-of-the-bargain theory
as applied to their contract claims, Centrelake makes the
same argument we have rejected with respect to the UCL
claim, viz., that data security was at most “incidental” to the
parties’ bargains. As explained above, we are unpersuaded.
Centrelake does not address appellants’ allegation that
Centrelake’s promises to maintain adequate data security
were incorporated into their contracts. Nor does Centrelake
cite any authority -- state or federal -- addressing contract
damages under California law.
We reject Centrelake’s further argument that
appellants’ benefit-of-the-bargain theory is fatally
“implausible” because appellants did not allege “how, or even
whether, the cost of data protection varied among
Centrelake clientele.” Although appellants may be required
to address such variations among the members of their
putative class at later stages of the litigation, their failure to
address them in the complaint is not fatal to their claims at
the pleading stage. Again, Centrelake cites no California
authority. The federal cases it cites are distinguishable.
(See In re Target Corp. Data Sec. Breach Litigation (D.
Minn. 2014) 66 F.Supp.3d 1154, 1178 (In re Target) [unjust
enrichment claim against retailer was fatally implausible,
where plaintiffs alleged they paid for data security when
30
purchasing goods with payment cards, but retailer charged
same prices to customers who paid with cash and thus had
no need for data security]; Gordon v. Chipotle Mexican Grill,
Inc. (D. Colo., Aug. 1, 2018, No. 17-CV-1415-CMA-MLC)
2018 U.S. Dist. LEXIS 129928, *9-*10 [following In re
Target; plaintiffs’ allegations that restaurant’s purchase
prices incorporated charges for data security were too
implausible to support Article III standing, because cash
customers paid same prices], report and recommendation
adopted in part, rejected in part (D. Colo. 2018) 344
F.Supp.3d 1231.) Indeed, In re Target distinguished a case
decided on allegations similar to appellants’. (See Resnick v.
AvMed, Inc. (11th Cir. 2012) 693 F.3d 1317, 1328 (Resnick)
[plaintiffs adequately pled unjust enrichment claim against
health care plan, from which laptops containing plaintiffs’
PII had been stolen, by alleging their health insurance
premiums incorporated payments for data security that
health care plan did not provide]; In re Target, supra, 66
F.Supp.3d at 1178 [deeming Resnick “not on point” because
in Resnick, all members of health care plan -- unlike
retailer’s cash customers -- shared their PII in their relevant
transactions, and therefore paid for adequate data security].)
We conclude appellants’ allegations sufficed to plead general
contract damages under their benefit-of-the-bargain theory.
3. Monitoring Costs
We further conclude appellant McKinley adequately
pled special contract damages under appellants’ monitoring-
31
costs theory. McKinley’s financial loss in purchasing credit
and identity monitoring services did not flow directly from
Centrelake’s alleged breach of contract (failure to provide
promised data security), but did flow from an alleged
consequence thereof (the data breach). (See Lewis Jorge,
supra, 34 Cal.4th at 969.) Further, McKinley’s purchase
may well have been foreseeable. Indeed, Centrelake’s Notice
of Data Breach encouraged patients to monitor their credit
and financial accounts to protect against harm resulting
from the breach; Centrelake might have foreseen that
McKinley would pay for assistance in doing so. In any event,
foreseeability is an issue of fact. (Ash v. North American
Title Co., supra, 223 Cal.App.4th at 1268.) Centrelake does
not argue otherwise, instead contending McKinley’s
purchase was unreasonable and unnecessary. For the
reasons explained in our UCL analysis above, we reject that
contention at this early stage of the litigation. Similarly, for
reasons explained above, we need not decide whether
appellants Moore and Joy adequately pled contract damages
under their monitoring-costs theory.
C. Appellants Fail to Show the Court Erred in
Dismissing Their Negligence Claim Without
Leave to Amend
Appellants contend the trial court erred in sustaining
Centrelake’s demurrer to appellants’ negligence claim under
the economic loss rule, because: (1) the parties entered a
special relationship, as established by an analysis of six
32
factors first articulated in Biakanja v. Irving (1958) 49
Cal.2d 647, 650 (Biakanja); (2) independent of the parties’
contracts, Centrelake had a duty to protect appellants’ PII;
and (3) appellants’ asserted damages for lost time are non-
economic losses. Appellants further contend the court
abused its discretion in denying their request for leave to
amend their complaint. We address each contention in turn.
1. Economic Loss Rule
“The [economic loss] rule itself is deceptively easy to
state: In general, there is no recovery in tort for negligently
inflicted ‘purely economic losses,’ meaning financial harm
unaccompanied by physical or property damage.” (Sheen,
supra, 12 Cal.5th at 922; see also id. at 915 [defining
economic losses as “pecuniary losses unaccompanied by
property damage or personal injury”]; Southern California
Gas Leak Cases (2019) 7 Cal.5th 391, 398 [economic loss is
“shorthand for ‘pecuniary or commercial loss that does not
arise from actionable physical, emotional or reputational
injury to persons or physical injury to property’”].) The
economic loss rule applies, inter alia, where the parties are
in contractual privity and the plaintiff’s claim arises from
the contract (in other words, the claim is not independent of
the contract). (Sheen, at 923 [“Not all tort claims for
monetary losses between contractual parties are barred by
the economic loss rule. But such claims are barred when
they arise from -- or are not independent of -- the parties’
underlying contracts”].) In such circumstances, there is no
33
need to analyze the Biakanja special-relationship factors.
(Sheen, at 915, 942.)
We conclude appellants have failed to show error in the
trial court’s application of the economic loss rule. As the
court observed, appellants alleged they and Centrelake were
“in direct contractual privity.” Further, appellants have
failed to show their claim is independent of their contracts
with Centrelake. Appellants provided their PII to
Centrelake pursuant to the contracts establishing their
provider-patient relationships, and appellants’ asserted
injuries arose from Centrelake’s failure to provide data
security allegedly promised in their contracts. Appellants
identify only one potential source of an independent duty,
viz., a federal regulation implementing HIPAA. But the sole
California authority on which they rely did not address an
independent duty of care under any statute (much less
HIPAA), instead addressing the evidentiary doctrine of
negligence per se, which concerns standards of care. (See
Satterlee v. Orange Glenn School Dist. Of San Diego
County (1947) 29 Cal.2d 581, 567-590 [under negligence per
se doctrine, standard of care may be prescribed by statute,
but “liability is also dependent upon proof that a duty was
owed to persons in the class of the plaintiff”]; 6 Witkin,
Summary of Cal. Law (11th ed. 2022) Torts, § 1004 [“It is the
tort of negligence, and not the violation of the statute itself,
that entitles a plaintiff [asserting negligence per se] to
recover damages. Either the courts or the Legislature must
have created a duty of care. The presumption of negligence
34
created by [California’s statute codifying the negligence per
se doctrine] concerns the standard of care, rather than the
duty of care”].) 9 In their reply brief, appellants make no
mention of HIPAA, instead relying on a federal case
concluding the economic loss rule did not bar a claim of
negligent misrepresentation. (See Whittington v.
KidsEmbrace, LLC (C.D. Cal., July 19, 2021, No. CV 21-
1830-JFW(JPRX)) 2021 U.S. Dist. LEXIS 138713, at
*16-*18.) That case is inapposite, as negligent
9
Similarly, appellants’ out-of-state authorities do not
support their reliance on HIPAA, except perhaps as a basis for
applying the evidentiary doctrine of negligence per se. (See Tuck
v. City of Gardiner Police Department (D. Me., Feb. 13, 2019, No.
1:18-CV-00212-JDL) 2019 U.S. Dist. LEXIS 23180, at *9 [noting
defendant medical provider did not dispute plaintiff’s contention
that defendant had duty to ensure privacy of patients’ medical
information], citing Bonney v. Stephens Memorial Hosp. (Me.
2011) 17 A.3d 123, 128 [stating, in dicta, HIPAA standards “may
be admissible to establish the standard of care associated with a
state tort claim” (italics added)]; Acosta v. Byrum (N.C. Ct. App.
2006) 180 N.C.App. 562, 571-572 (Acosta) [trial court erred in
purporting to dismiss HIPAA cause of action, where complaint
included no such cause of action, and plaintiff merely cited
HIPAA as “evidence of the appropriate standard of care”]; Ilene
N. Moore et al., Confidentiality and Privacy in Health Care from
the Patient's Perspective: Does HIPAA Help? (2007) 17 Health
Matrix 215, 230-231 [citing Acosta for proposition that HIPAA
regulations have been used as “evidence of standards in state tort
actions”].)
35
misrepresentation is a tort “‘separate and distinct’” from
negligence. 10 (Sheen, supra, 12 Cal.5th at 943.)
We reject appellants’ contention that their asserted
lost-time damages are non-economic losses and therefore
exempt from the economic loss rule. Appellants’ complaint
alleged they suffered “[a]scertainable losses in the form of
. . . the value of their time,” implicitly referring to their
time’s financial value. Appellants do not claim these
financial losses were accompanied by any personal injury or
property damage. Accordingly, appellants fail to show the
trial court erred in concluding these losses were economic.
(See Sheen, supra, 12 Cal.5th at 915, 922; Castillo v. Seagate
Technology, LLC, supra, 2016 U.S. Dist. LEXIS 187428, *5,
*17-*20 [concluding plaintiffs’ expenditures of “considerable
time and effort” were economic losses]; Dugas, supra, 2016
U.S. Dist. LEXIS 152838, at *36-*37 [concluding plaintiff’s
“time spent and loss of productivity” were economic
11
losses].)
10
Because the parties are in contractual privity and
appellants have failed to show their claim is independent of the
parties’ contracts, we need not address the parties’ arguments
concerning the existence of a special relationship under the
Biakanja factors. (See Sheen, at 915, 942.) We note that
appellants’ complaint alleged the parties entered into a special
relationship “when they contracted” for medical services.
11
Appellants misrepresent Dugas, asserting it “clearly holds
that loss of time is compensable,” but citing its discussion of
(Fn. is continued on the next page.)
36
We are not persuaded by the cases on which appellants
rely. The sole California case they cite is inapposite. (See
Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 667 [trial
court did not erroneously permit double recovery in
malicious prosecution action, where court instructed jury it
could award plaintiff damages for both lost earnings and lost
time during plaintiff’s underlying incarceration].) As the
trial court did, we decline to follow Bass, supra, 394
F.Supp.3d 1024, the leading federal case on which appellants
rely. (See, e.g., Solara, supra, 2020 U.S. Dist. LEXIS 80736,
at *11 [following Bass on this issue].) In Bass, the court
concluded the economic loss rule did not bar a negligence
claim arising from a data breach, because the plaintiff
alleged a non-economic loss, viz., time spent sorting through
phishing emails. (Bass, at 1039.) But Bass neither
articulated any reasoning for concluding the plaintiff’s lost-
time damages were non-economic, nor cited any authority for
this conclusion. In fact, this conclusion was undermined by
the very authority Bass cited in determining that the
plaintiff’s lost time was an injury in fact. (See Bass, at 1035
[“loss of time establishes injury in fact,” because “‘the value
of one’s own time needed to set things straight is a loss from
an opportunity-cost perspective’” (quoting Dieffenbach v.
Barnes & Noble, Inc. (7th Cir. 2018) 887 F.3d 826, 828
(Dieffenbach))]; Dieffenbach, at 828-829 [where hackers stole
Article III standing. (See Dugas, supra, 2016 U.S. Dist. LEXIS
152838, at *18-*20.)
37
plaintiff’s payment card information from retailer, plaintiff’s
resulting loss of time sorting matters with police and bank
was loss, “at least in economic terms,” under California
authority indicating “significant time and paperwork costs
incurred to rectify violations . . . can qualify as economic
losses” (italics added)]; cf. Perdue v. Hy-Vee, Inc. (C.D. Ill.
2020) 455 F.Supp.3d 749, 761 [following Dieffenbach;
plaintiffs’ losses of time in wake of data breach were
economic losses, which plaintiffs were barred from
recovering under Illinois economic loss rule].) We conclude
appellants have failed to show the trial court erred in
applying the economic loss rule to sustain Centrelake’s
demurrer to appellants’ negligence claim.
2. Proposed Amendment
“Review of the trial court’s failure to grant leave to
amend is conducted under the abuse of discretion standard.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs,
supra, ¶ 8:136.2.) “The plaintiff-appellant has the burden of
demonstrating abuse of discretion by showing how the
complaint can be amended to state a cause of action.” (Id. at
¶ 8:136.3; accord, Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2022) Ch. 7(I)-A ¶
7:130 [“It is not up to the judge to figure out how the
complaint can be amended to state a cause of action. Rather,
the burden is on plaintiff to show in what manner plaintiff
can amend the complaint, and how that amendment will
change the legal effect of the pleading”].) Although “such
38
showing may be made in the first instance to the appellate
court,” the plaintiff-appellant “must still offer details on how
the amendment would cure the defects.” (Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶
7:130.)
We conclude appellants have failed to show the trial
court abused its discretion in sustaining Centrelake’s
demurrer to their negligence claim without leave to amend.
Appellants fault the court for failing to allow them to add
allegations of a future need to retake medical tests, asserting
that “[e]ven if Plaintiffs’ other damages theories were
deficient, an amendment to the Complaint fully alleging this
new theory would clearly cure the defect.” They do not
specify any defect, much less explain how the proposed
amendment would cure it. Nor do they attempt to explain
how the proposed amendment might enable their negligence
claim to overcome the economic loss rule. Accordingly, they
have forfeited any such argument. (See People v. Guzman
(2019) 8 Cal.5th 673, 683, fn. 7 [appellant forfeited due
process claim by failing to “develop the argument”]; In re
Phoenix H. (2009) 47 Cal.4th 835, 845 [“‘“Contentions
supported neither by argument nor by citation of authority
are deemed to be without foundation and to have been
abandoned”’”].) We conclude appellants have failed to show
an abuse of discretion in the court’s dismissal of their
negligence claim without leave to amend. (See Eisenberg et
al., Cal. Practice Guide: Civil Appeals & Writs, supra,
39
¶ 8:136.3; Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial, supra, ¶ 7:130.)
D. Guidance on Remand
As explained above, although appellants have failed to
show error in the trial court’s dismissal of their negligence
claim without leave to amend, we have concluded the court
erred in sustaining Centrelake’s demurrer to appellants’
UCL and contract claims. Accordingly, we will affirm the
judgment with respect to the negligence claim, reverse with
respect to the UCL and contract claims, and remand for
further proceedings on the latter claims. To provide
guidance to the court and the parties on remand, we address
appellants’ allegations that the data breach deprived them of
some portion of the value of their PII. We conclude
appellants failed to adequately plead their lost-value-of-PII
theory as a basis for either UCL standing or an award of
contract damages.
First, we conclude appellants’ lost-value-of-PII theory,
as pled, is insufficient to support UCL standing. We need
not accept as true appellants’ allegation that they suffered
“[a]scertainable losses in the form of deprivation of the value
of their PII,” as this constitutes a conclusion or deduction,
unsupported by any properly pled facts. (See Eisenberg et
al., Cal. Practice Guide: Civil Appeals & Writs, supra,
¶ 8:136.) Appellants properly pled only that their PII was
stolen and disseminated, and that a market for it existed.
They did not allege they ever attempted or intended to
40
participate in this market, or otherwise to derive economic
value from their PII. Nor did they allege that any
prospective purchaser of their PII might learn that their PII
had been stolen in this data breach and, as a result, refuse to
enter into a transaction with them, or insist on less favorable
terms. In the absence of any such allegation, appellants
failed to adequately plead that they lost money or property
in the form of the value of their PII. (See, e.g., In re Google
Inc. Cookie Placement Consumer Privacy Litigation (3d Cir.
2015) 806 F.3d 125, 149, 152 [affirming dismissal of UCL
claim against Google, where plaintiffs alleged Google
allowed defendant advertisers to circumvent plaintiffs’
cookie blockers and track plaintiffs’ internet-history
information in contravention of Google’s own public
statements: “when it comes to showing ‘loss,’ the plaintiffs’
argument lacks traction. They allege no facts suggesting
that they ever participated or intended to participate in the
market they identify, or that the defendants prevented them
from capturing the full value of their internet usage
information for themselves”]; Bass, supra, 394 F.Supp.3d at
1040 [“That the information has external value, but no
economic value to plaintiff, cannot serve to establish that
plaintiff has personally lost money or property”]; cf.
Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986,
989, 994 [plaintiff failed to adequately plead UCL standing,
where plaintiff alleged retailer obtained plaintiff’s zip code
under false pretenses and, using zip code, paid third party
for license to use plaintiff’s address: “The fact that the
41
address had value to [the retailer], such that the retailer
paid [the third party] a license fee for its use, does not mean
that its value to plaintiff was diminished in any way”];
Archer v. United Rentals, Inc. (2011) 195 Cal.App.4th 807,
816 [same, where plaintiffs claimed retailers unlawfully
collected and recorded their PII as condition to accepting
credit card payments].)
We further conclude appellants’ lost-value-of-PII
theory, as pled, is insufficient to support an award of
contract damages. We find persuasive Jetblue, supra, 379
F.Supp.2d 299, on which the trial court relied. There, the
plaintiffs alleged they made reservations to fly with JetBlue
airline, in reliance on JetBlue’s contractual promises not to
share their PII with third parties, but JetBlue breached the
contracts by sharing their PII with a federal government
subcontractor. (Id. at 324-325.) At a hearing on JetBlue’s
motion to dismiss, the plaintiffs requested leave to amend
their complaint’s contract claim to allege they were deprived
of the economic value of their PII. (Id. at 326.) Denying this
request, the court dismissed the contract claim. (Id. at 326-
327.) The court explained that the proposed damages theory
“ignore[d] the nature of the contract asserted,” under which
appellants had no expectation interest in the economic value
of their PII: “Plaintiffs may well have expected that in
return for providing their personal information to JetBlue
and paying the purchase price, they would obtain a ticket for
air travel and the promise that their personal information
would be safeguarded consistent with the terms of the
42
privacy policy. They had no reason to expect that they would
be compensated for the ‘value’ of their personal information.
In addition, there is absolutely no support for the proposition
that the personal information of an individual JetBlue
passenger had any value for which that passenger could
have expected to be compensated. It strains credulity to
believe that, had JetBlue not provided [plaintiffs’] data en
masse to [the subcontractor], [the subcontractor] would have
gone to each individual JetBlue passenger and compensated
him or her for access to his or her personal information.” 12
(Id. at 327.) Although Jetblue applied New York contract
law, its focus on the expectations of the parties is consistent
with California law. (See New West, supra, 187 Cal.App.4th
at 844.) Jetblue is also consistent with other federal cases,
including Pruchnicki v. Envision Healthcare Corporation
(9th Cir. 2021) 845 Fed.Appx. 613 (Pruchnicki). There, the
Ninth Circuit affirmed dismissal of a breach of contract
claim where, despite studies showing PII “may have value in
general,” the plaintiff failed to adequately allege that as a
result of a data breach, her PII “actually lost value.” (Id. at
614-615, citing In re Google, Inc. Privacy Policy
Litigation (N.D. Cal., July 15, 2015, No. 5:12-CV-001382-
PSG) 2015 U.S. Dist. LEXIS 92736, at *18, fn. 63; see also
12
In purporting to distinguish Jetblue, appellants ignore its
holding on the contract claim, instead citing its separate holding
concerning a claim of trespass to chattels. (See Jetblue, supra,
379 F.Supp.2d at 328.)
43
LaCourt v. Specific Media, Inc. (C.D. Cal., Apr. 28, 2011, No.
SACV 10-1256 GW (JCGX)) 2011 U.S. Dist. LEXIS 50543, at
*3-*4, *11-*12 [plaintiffs failed to adequately plead Article
III standing, where plaintiffs alleged defendant’s
unauthorized collection and use of plaintiffs’ internet-history
information deprived them of its economic value, but did not
allege they personally “ascribed an economic value” to such
information or were “foreclosed from entering into a ‘value-
for-value exchange’ as a result of [defendant’s] alleged
conduct”].)
We find these cases, including the Ninth Circuit’s
recent decision in Pruchnicki, more persuasive than an older
Ninth Circuit case on which appellants rely. (See In re
Facebook Privacy Litigation (9th Cir. 2014) 572 Fed.Appx.
494, 494 (Facebook Privacy) [district court erred in
dismissing breach of contract claims for failure to adequately
plead damages: “Plaintiffs allege that the information
disclosed by Facebook [to third-party advertisers] can be
used to obtain personal information about plaintiffs, and
that they were harmed . . . by losing the sales value of that
information. In the absence of any applicable contravening
state law, these allegations are sufficient to show the
element of damages for their breach of contract and fraud
claims”].) In relying on the purported absence of
contravening state law, Facebook Privacy put the cart before
the horse -- damages are not recoverable unless authorized
by law. The scant California authority cited by Facebook
Privacy did not address the value of PII, much less any
44
deprivation thereof. (See Gautier v. General Tel. Co. (1965)
234 Cal.App.2d 302, 305-306 [trial court properly sustained
demurrer to plaintiffs’ claim that defendant telephone
company breached contract by refusing to transfer calls];
Lazar v. Superior Court (1996) 12 Cal.4th 631, 637, 648-649
[trial court erred in sustaining demurrer to plaintiff’s claim
that defendant fraudulently induced him to leave former job
for new job in another state].) We find Facebook Privacy
13
unpersuasive.
13
Accordingly, we are unpersuaded by appellants’ reliance on
federal district court cases that followed Facebook Privacy on this
issue. (See, e.g., Calhoun v. Google LLC (N.D. Cal. 2021) 526
F.Supp.3d 605, 636 (Calhoun) [following Facebook Privacy and
three district court cases that had followed it, including two
earlier cases decided by same judge, in holding plaintiffs
adequately pled UCL standing by alleging Google collected
information from them without authorization, diminishing
information’s property value].) In their appellate reply brief,
appellants misrepresent Calhoun, asserting “the court held
broadly that loss of privacy in personal information is a legally
recognized injury . . . .” In fact, Calhoun addressed a loss of
privacy -- as opposed to a loss of property value -- only in holding
the plaintiffs had adequately pled an intrusion-upon-seclusion
claim (one variety of the tort of invasion of privacy). (See id. at
629-631.) In any event, appellants forfeited any contention that
“‘privacy harm’ . . . itself adequately demonstrates damages,” by
failing to raise such a contention before the trial court or in their
opening appellate brief. (See People v. Morales (2020) 10 Cal.5th
76, 98 [finding argument “doubly forfeited” by appellant’s failure
to object in trial court or raise issue in opening appellate brief].)
45
Many other cases on which appellants rely are
inapposite. (See Fraley v. Facebook, Inc. (N.D. Cal. 2011)
830 F.Supp.2d 785, 791-792, 798-799, 811 [distinguishing
Jetblue, where plaintiffs alleged Facebook misappropriated
their names and likenesses by using them in commercial
endorsements, but did not allege “that their personal
information ha[d] inherent economic value and that the
mere disclosure of such data constitute[d] a loss of money or
property”]; CTC Real Estate Services v. Lepe (2006) 140
Cal.App.4th 856, 858-861 [trial court erred in denying
identity-theft victim’s unopposed claim for recovery of
remaining proceeds of the theft, on unjust enrichment
theory]; KNB Enterprises v. Matthews (2000) 78 Cal.App.4th
362, 364-365 [federal copyright law did not preempt
statutory claims based on defendant’s misappropriation of
photography models’ right of publicity]; In re Facebook, Inc.
Internet Tracking Litigation (9th Cir. 2020) 956 F.3d 589,
610-611 (Facebook Tracking) [affirming dismissal of contract
claim, where plaintiffs failed to adequately plead existence of
contract].) In the portion of Facebook Tracking on which
appellants rely, the court held the plaintiffs had Article III
standing to bring certain claims not at issue here, based on
Facebook’s unauthorized collection and use of the plaintiffs’
internet-history information, which the court recognized had
value to Facebook. (Facebook Tracking, 956 F.3d at 599-
601.) But the court did not suggest the plaintiffs suffered
any corresponding loss of value -- on the contrary, it relied
on unjust enrichment law, under which each plaintiff had a
46
stake in Facebook’s profits “regardless of whether . . . the
individual’s data [wa]s made less valuable.” (Id. at 600.)
Here, in contrast, appellants rely on a theory that
Centrelake made their PII less valuable to them. We
conclude they did not adequately plead this theory as a basis
for either UCL standing or contract damages.
47
DISPOSITION
The judgment is affirmed with respect to the dismissal
of appellants’ negligence claim without leave to amend. The
judgment is otherwise reversed. The matter is remanded for
further proceedings consistent with this opinion. Appellants
are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
48