Thompson v. Orange County Transportation Auth. CA4/3 ( 2021 )

Filed 10/6/21 Thompson v. Orange County Transportation Auth. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
HARVEY J. THOMPSON III,
Plaintiff and Appellant, G059301
v. (Super. Ct. No. 30-2019-01108804)
ORANGE COUNTY OPINION
TRANSPORTATION AUTHORITY et
al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, William
D. Claster, Judge. Affirmed.
McGrane, William McGrane and Matthew Sepuya; Jenkins Mulligan &
Gabriel and Daniel J. Mulligan for Plaintiff and Appellant.
Woodruff, Spradlin & Smart, M. Lois Bobak and Patrick M. Desmond;
Best Best & Krieger and Scott William Ditfurth; Lewis Brisbois Bisgaard & Smith and
Stephen Heald Turner for Defendants and Respondents.
INTRODUCTION
Section 31490 of the Streets & Highways Code was enacted in 2010 to
protect the “personally identifiable information” of motorists using toll roads. (Id. at
subd. (a).)1 The multi-part statute details some of the ways the Legislature sought to
accomplish this goal: for instance, by requiring transportation agencies to develop
privacy policies, purge old consumer data, and largely refrain from marketing “products
or services” to nonsubscribers. (Id. at subd. (k).) But there is only one place in the
statute providing a remedy if it is violated: subdivision (q). This subdivision allows “a
person whose personally identifiable information has been knowingly sold or otherwise
provided in violation of” section 31490 to bring an action to recover, “[i]n addition to any
other remedies provided by law,” either a $2,500 penalty per violation or actual damages.
(Id. at subd. (q)(1).)
Today we hold there can be no right of action under section 31490,
subdivision (q) for placing a nonsubscriber’s name and address on the envelope of a letter
already required by law to be mailed (even when the letter itself contains marketing
language violating subdivision (k) of the statute). We therefore affirm the trial court’s
ruling sustaining without leave to amend a demurrer against a purported class action
complaint founded on such a theory.
FACTS
Appellant Harvey J. Thompson III must have been quite surprised one day
in late 2018 when he received a notice of toll evasion from the 91 Express Lanes
connecting Orange and Riverside Counties in Southern California. The 91 Express Lanes
1 All statutory references are to the Streets & Highways Code unless otherwise indicated.
2
are jointly owned by two tolling authorities, respondents Orange County Transportation
Authority (OCTA) and Riverside County Transportation Commission (RCTC). OCTA
and RCTC employed a third-party contractor, respondent Cofiroute USA, LLC (CUSA)
to operate the toll lanes.
The notice stated Thompson had been on the lanes on November 26, 2018
without a valid FasTrak® account. The problem with this assertion is that Thompson
lives in Northern California and had been “nowhere near” the 91 Express Lanes on said
date.
He protested the notice, and on January 4, 2019, received a letter entitled
“Results of Administrative Investigation” issued under Vehicle Code sections 23302 et
seq. and 40250 et seq. As its title would suggest, the letter informed Thompson of the
outcome of an administrative investigation completed at his request. OCTA and RCTC
were dismissing the notice of toll evasion violation for which he had been cited.
Thompson was offered “sincere apologi[es]” for the “inconvenience.” The letter closed
with an invitation: “If you do not have a FasTrak® account, we would be happy to
establish an account for you.” Thompson was given the website and phone number to
utilize if he wished to establish an account.
Thompson did not wish to establish an account. Quite to the contrary, he
served RCTC and OCTA with class action damage claims, alleging the letter illegally
solicited his business in violation of section 31490. RCTC and OCTA denied his claims,
and he filed a class action lawsuit against both entities as well as CUSA in October 2019
for declaratory relief and “penal fines.” 2
The respondents immediately filed the first of what would be two
demurrers, arguing, amongst other things, that the letter did not give rise to a cause of
action under section 31490 because there was no improper disclosure of personally
2 Thompson has since dismissed the declaratory relief cause of action.
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identifiable information to a third party.3 The trial court ultimately sustained their
demurrer to the second amended complaint without leave to amend, finding the claim
was untimely and failed to state a cause of action.
DISCUSSION
Thompson appeals the trial court ruling in both respects. We find he did
not state a cause of action under section 31490.
To resolve this appeal, we need only construe section 31490 in connection
with another relevant provision, Vehicle Code section 40255. Our review is de novo, not
just because “[w]e exercise our independent judgment to determine whether a cause of
action has been stated as a matter of law” on demurrer (see Serra Canyon Co. v.
California Coastal Com. (2004) 120 Cal.App.4th 663, 667), but also because the issue is
one of statutory construction. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.)
“Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna–Med,
Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386.) We must look
to the statute’s words and give them ‘their usual and ordinary meaning.’ (DaFonte v.
Up–Right, Inc. (1992) 2 Cal.4th 593, 601.) ‘The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.’ (Green v. State of California
(2007) 42 Cal.4th 254, 260; see also Gattuso v. Harte–Hanks Shoppers, Inc. (2007) 42
Cal.4th 554, 567.)” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381,
387-388 (Imperial).) “Where more than one statutory construction is arguably possible,
our ‘policy has long been to favor the construction that leads to the more reasonable
result.’ (Webster v. Superior Court (1988) 46 Cal.3d 338, 343.) This policy derives
3 The demurrers were also based on procedural flaws in the complaint. Respondents argued
Thompson’s claim for declaratory relief was not a present controversy and that his lawsuit was time-barred because
it was brought more than six months from the denial of his government claims. Since we hold the demurrer was
properly sustained on the merits, we do not address these issues. We also deny all requests for judicial notice, since
the items for which the parties seek judicial notice are relevant to the timeliness issue only.
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largely from the presumption that the Legislature intends reasonable results consistent
with the apparent purpose of the legislation. [Citation.] Thus, our task is to select the
construction that comports most closely with the Legislature’s apparent intent, with a
view to promoting rather than defeating the statutes’ general purpose, and to avoid a
construction that would lead to unreasonable, impractical, or arbitrary results.
[Citations.]” (Imperial, supra, 47 Cal.4th at p. 388.) Moreover, where two statutes relate
to the same subject matter and share the same purpose or object, they “should be
harmonized.” (See United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4
Cal.5th 1082, 1090.)
In 1995, the Legislature added Article 4 to Division 17, Chapter 1 of the
Vehicle Code, beginning with section 40250. Article 4 created a procedure by which toll
evasion violations could be handled in a civil and administrative capacity.4 (See Veh.
Code, § 23302.5, subd. (b).) Under Vehicle Code section 40254, if a vehicle evades tolls,
the agency authorized to collect them is required to send the registered owner of the
offending vehicle a notice of toll evasion. If the owner wishes to contest the violation,
the procedure for doing so is set forth in Vehicle Code section 40255. Once a notice of
toll evasion is contested, the toll agency must investigate. (Id. at subd. (a)(1).) If the
agency finds the violation did not occur or the contestant was not responsible for it, it
must cancel the violation and make an official record of having done so. (Ibid.) And
here is the most important part: The agency “shall mail the results of the investigation to
the person who contested the notice[.]” (Ibid.; italics added.)
Fifteen years after the creation of Article 4 of Division 17, Chapter 1 of the
Vehicle Code, section 31490 was added to Division 17, Chapter 8 of the Streets &
Highways Code dealing with electronic toll collection and electronic transit fare
collection systems. It was proposed because there was “a legitimate concern that
4 Prior to the existence of Article 4, toll evasion was a misdemeanor offense. (See Legis. Counsel’s
Dig., Assem. Bill No. 1223 (1995-1996 Reg. Sess.) Stats. 1995, ch. 739.)
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information originally collected for purposes of electronic toll collection or the provision
of travel information could be provided to other companies or organizations for
marketing purposes.” (Sen. Transportation & Housing Com., Analysis of Sen. Bill No.
1268 (2009-2010 Reg. Sess.) Apr. 5, 2010, p. 4. ) Section 31490 made it unlawful for a
transportation agency to “sell or otherwise provide to any other person or entity
personally identifiable information of” any subscriber, “[e]xcept as otherwise provided”
in the statute. (Id. at subd. (a).) Furthermore, section 31490, subdivision (k) of the
statute made it unlawful for a transportation agency to “use a nonsubscriber’s personally
identifiable information obtained” through its toll collection systems “to market products
or services to that nonsubscriber” except in a notice of toll evasion. (Id. at subd. (k).) “In
addition to any other remedies provided by law, a person whose personally identifiable
information has been knowingly sold or otherwise provided in violation of this section
may bring an action” for penalties and attorney fees and costs. (Id. at subd. (q).)
Thompson contends he is entitled to statutory penalties, attorney fees, and
costs because he was a nonsubscriber and his personally identifiable information – name
and address, to be exact – was “otherwise provided” to the United States Postal Service
(USPS) to deliver the letter containing an invitation for him to join the FasTrak®
program. (See § 31490, subds. (k) & (q).)
The language of section 31490, subdivision (q) is somewhat ambiguous.
The relevant dictionary definition for the word “provide” is “to supply for use.”
(Webster’s 3d New Internat. Dict. (1981) p. 1827.) In the most technical sense, then,
Thompson’s name and address were indeed supplied to USPS for use. But, as the trial
court correctly observed, the term “provided” must be construed in the context in which it
is used, keeping in mind the Legislature’s purpose in enacting the statute. (See Ameri-
Medical Corp. v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1274.)
Section 31490, subdivision (q) allows penalties where personally identifiable information
is “knowingly sold or otherwise provided in violation of” the statute. (Ibid.; italics
6
added.) In enacting section 31490, the Legislature aimed to prevent the disclosure of
personal information to third parties for marketing purposes; hence, the prohibition on
knowingly selling such information. Disclosure of Thompson’s information to the USPS
for purposes of sending him an official letter is not a marketing purpose, and thus does
not fall within the class of conduct the statute was designed to prohibit.
We are also mindful of our duty to construe statutes, if possible, to avoid
absurd results. (See Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d
142, 153.) Vehicle Code section 40255 required respondents to mail the letter to
Thompson, and the letter contained the results of the administrative investigation they
had to perform.5 Unless USPS personnel opened the envelope – a proposition for which
we have no allegation or evidence – it would have no way of knowing that the letter also
contained arguably illegal marketing language under section 31490, subdivision (k) or
that Thompson was a nonsubscriber. Adoption of Thompson’s construction of section
31490, subdivision (q) would thus require us to penalize respondents for merely mailing
the letter; that is, carrying out a duty they were required by law to perform. We do not
believe the Legislature intended section 31490, subdivision (q) to operate in such a
manner.
5 Despite respondents raising it in their brief, Thompson has not addressed Vehicle Code section
40255, or how it and section 31490 should be reconciled.
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DISPOSITION
The dismissal is affirmed. Respondents to recover their costs on appeal.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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