HYPERTOUCH, INC., v.VALUECLICK, INC










Filed 1/18/11





CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

HYPERTOUCH, INC., Plaintiff and Appellant, v. VALUECLICK, INC. et al., Defendants and Respondents.

B218603 (Los Angeles County Super. Ct. No. LC081000)

STORY CONTINUE FROM PART I….


Second, other provisions of the CAN-SPAM Act use the word “deceptive” in association with section 45 of the Federal Trade Commission Act, which is much broader than common law fraud. For example, 15 U.S.C. section 7704, subdivision (a)(2) prohibits the use of “deceptive subject headings,” which is defined as a subject heading that “would be likely to mislead a recipient . . . consistent with the criteria used in enforcement of section [45 of the FTC Act].” Similarly, 15 U.S.C. section 7707, subdivision (a)(1) clarifies that the CAN-SPAM Act does not affect the Federal Trade Commission’s “authority to bring enforcement actions under the FTC Act for materially false or deceptive representations.” Unlike common law fraud, to establish liability for deceptive statements under the FTC Act “[n]either proof of consumer reliance nor consumer injury is necessary to establish a . . . violation.” (F.T.C. v. Freecom Communications, Inc. (10th Cir. 2005) 401 F.3d 1192, 1203.) “[I]ntent to deceive” is also not required. (F.T.C. v. World Travel Vacation Brokers, Inc. (7th Cir. 1988) 861 F.2d 1020, 1029.) The fact that other provisions of the CAN-SPAM Act “direct[] that the word ‘deceptive” should be understood not as referencing common-law fraud . . . but rather deception as utilized in the FTC Act” (Consumerbargaingiveaways, supra, 622 F.Supp.2d at p. 942), is a strong indication that the word “deception” in the preemption clause was not intended to refer to common law fraud. (See People v. Crowson (1983) 33 Cal.3d 623, 633 [“It is . . . generally ‘presumed, in the absence of anything in the statute to the contrary, that a repeated phrase or word in a statute is used in the same sense throughout.” [overruled on other grounds by People v. Guerro (1988) 44 Cal.3d 343]].)
Reading the phrase “falsity or deception” as encompassing something broader than common law fraud also finds support in the legislative history. The Senate Report accompanying the legislation stated that the CAN-SPAM Act would “supersede State and local statutes . . . that expressly regulate the use of e-mail to send commercial messages except for statutes . . . that target fraud or deception in such e-mail. . . . a State law prohibiting fraudulent or deceptive headers, subject lines, or content in commercial e‑mail would not be preempted.” (S. REP. 108-102, S. Rep. No. 102, 108TH Cong., 1ST Sess. 2003, 2003 WL 21680759, 2004 U.S.C.C.A.N. 2348 (emphasis added).) The Report further explains that although the purpose of the CAN-SPAM Act was to impose a single national standard on commercial e-mail content, the savings clause in the preemption provision reflected the Legislature’s belief “Statutes that prohibit fraud and deception in e-mail do not raise the same concern, because they target behavior that a legitimate business trying to comply with relevant laws would not be engaging in anyway.” (Ibid. (emphasis added).) Thus, in three separate instances, the Report refers disjunctively to state law claims predicated on “fraud or deception.” The Legislature’s use of the “term ‘deception’ would be redundant (if not misleading) if Congress meant to limit state regulation solely to common law fraud.” (Subscriberbase, supra, 2010 U.S. Dist. LEXIS 33645 at p. *35.)
Finally, a review of the state laws in effect at the time Congress enacted CAN-SPAM provides further support that the federal statute did not intend to “save” only those claims that were predicated on common law fraud. (See Hoang v. Reunion.com, Inc. (N.D. Cal. March 31, 2010, No. C-08-3518 MMC) 2010 U.S. Dist. LEXIS 34466, *17 (Reunion.com).) Before the CAN-SPAM Act was passed, section 17529.5 was one of several state statutes in existence that imposed liability for the use of deceptive commercial e-mails regardless of whether the recipient actually relied on, or was damaged by, those misrepresentations. (See id. at p. *16-*17 [citing Minnesota and Washington state statutes]; see also Kan. Stat. § 50-6, 107, subds. (c)(1)(A) & (B); Ariz. Rev. Stat., § 44-1372.01, subdivision (a)(2).) Generally, when interpreting a statute, courts “presume that Congress is aware of the legal context in which it is legislating.” (Abrego v. Dow Chem. Co. (9th Cir. 2006) 443 F.3d 676, 684; see also Albernaz v. United States (1981) 450 U.S. 333, 341 [“Congress is ‘predominantly a lawyer’s body,’ [citation], and it is appropriate for us ‘to assume that our elected representatives . . . know the law.’ [Citation.]”].) We therefore must assume that, at the time the CAN-SPAM Act was passed, Congress was aware that many states imposed liability for deceptive commercial e-mails without requiring reliance or other elements of common law fraud. Despite this knowledge, Congress chose not to use the word fraud in the savings provision, thereby suggesting that it intended the phrase “falsity or deception” to have a broader application.
1. Permitting state law claims that lack elements of common law fraud does not undermine the CAN-SPAM Act’s national standard

Respondents argue that, regardless of the actual language of the preemption clause, permitting claims for misleading or deceptive statements in a commercial e-mail without requiring a plaintiff to establish scienter, reliance and proximate damages would frustrate the CAN-SPAM Act’s central purpose, which was to impose a “national standard” for the content of commercial e-mails. (See generally, Virtumundo, supra, 575 F.3d at p. 1063 [“We are compelled to adopt a reading of the preemption clause that conforms with the statute’s structure as a whole and the stated legislative purpose”].)
We agree that the CAN-SPAM Act was intended to establish uniform standards for the content of commercial e-mail. The substantive provisions of the Act make clear that this “uniform standard” includes prohibitions on the use of “materially false or materially misleading header information,” as well as deceptive subject lines that are likely to mislead the recipient of a commercial e-mail. (Virtumundo, supra, 575 F.3d at p. 1062 [“the CAN-SPAM Act prohibits only deceptive subject line headings or materially false or materially misleading header information. [Citation.] Significantly, Congress intended this standard to regulate commercial e-mail messaging practices ‘on a nationwide basis.’ [Citation.]”]; see also 15 U.S.C., § 7704, subds. (a)(1),(2).) The justification for the CAN-SPAM Act’s preemptive effect, in turn, is to prevent state and local lawmakers from “manipulat[ing] that standard” by broadening the scope of e-mail content that might subject a defendant to liability. (Virtumundo, supra, 575 F.3d at p. 1063.)
The fact that California imposes liability for e-mails containing deceptive header information without requiring the traditional elements of fraud does not alter the “uniform standard” applicable to the content of commercial e-mails. The elements of reliance and damages, for example, have nothing to do with the content of an e-mail. Whether those elements are present in any case depends not on the “substance of the e‑mails or subject lines” at issue, but rather “upon the naiveté, vulnerability, or circumstance of the recipient.” (Subscriberase, supra, 2010 U.S. Dist. LEXIS 33645 at p. *36.) Similarly, imposing strict liability for advertising in commercial e-mails that contain deceptive content does not alter the type of content that might subject a defendant to liability. Instead, it broadens the class of persons who may be held responsible for such content.
Rather than broadening the scope of prohibited content in commercial e-mail, California’s decision to dispense with the elements of common law fraud was intended to create a more effective mechanism for eradicating the use of deceptive commercial e‑mails. Section 17592.5 seeks to accomplish this goal in two ways. First, the statute permits a recipient of a deceptive commercial e-mail to bring suit regardless of whether they were actually mislead or harmed by the deceptive message. This ensures that the use of deceptive e-mail will not go unpunished merely because it failed to mislead its targets. Second, imposing strict liability on the advertisers who benefit from (and are the ultimate cause of) deceptive e-mails, forces those entities to take a more active role in supervising the complex web of affiliates who are promoting their products.[1] While the CAN-SPAM Act establishes a national standard for the content of commercial e-mail, that standard is simply not altered or frustrated by “allowing variation in laws governing who may bring suit” or who those suits may be brought against. (See generally, Asis Internet Services. v. Member Source Media, LLC (N.D. Cal. April 20, 2010, No. C-08-1321 EMC) 2010 U.S. Dist. LEXIS 47865, *10 (Member Source Media).) As one federal court recently explained, the CAN-SPAM “authorized California to ‘prohibit falsity or deception in any portion of a commercial electronic mail message,’ 15 U.S.C. § 7707(b)(1), and it indicated no intent to limit the mechanisms that California may authorize to enforce such prohibitions.” (Subscriberase, supra, 2010 U.S. Dist. LEXIS 33645 at p. *38.)
Finally, although Respondents contend that section 17529.5 frustrates the CAN- SPAM Act by dispensing with the elements of reliance, proximate damages, or scienter, it overlooks the fact that, in many cases, the federal statute does not impose such requirements. For example, section 7706, subdivision (g)(1) permits a “provider of Internet access service [IAS] adversely affected” by commercial e-mail to bring an action for damages. The Act does not require that the IAS demonstrate that it, or any of its customers, relied on or was harmed by the deceptive content in the e-mail.[2] In addition, the Act permits states to bring actions to enjoin the use of “materially false or materially misleading” header information without proving actual knowledge. (15 U.S.C., § 7704, subd. (a)(1).)[3] Similarly, the Federal Trade Commission and the states attorney generals may bring suit to enjoin the use of “a subject heading that would be likely to mislead a recipient” without proving “state of mind.” (15 U.S.C., §§ 7704, subd. (a)(2); 7706, subds. (e), (f)(2).) Thus, even under the CAN-SPAM Act, defendants may be subject to suit for deceptive subject lines and header information without regard to their knowledge or mental state, and regardless of whether anyone was actually deceived.

2. Our holding is consistent with Virtumundo and Omega World Travel, Inc. v. Mummagraphics 348

Respondents also argue that two federal circuit court decisions, Virtumundo, supra, 575 F.3d 1040, and Omega World Travel, Inc. v. Mummagraphics (4th Cir. 2006) 469 F.3d 348 (Omega), have expressly held that the CAN-SPAM Act preempts “strict liability” claims pertaining to false or deceptive commercial e-mail content. In Respondents’ view, these cases stand for the proposition that the CAN-SPAM Act preempts claims that do not impose a knowledge or intent requirement.
a. Summary of Omega and Virtumundo

In Omega, supra, 469 F.3d 348, the Fourth Circuit considered whether the CAN-SPAM Act preempted state claims for “immaterial errors” contained within the header of a commercial e-mail.[4] The court began its analysis by considering whether the term “falsity,” as used in the CAN-SPAM Act’s savings clause, was intended to permit state law claims for any error or misstatement in a commercial e-mail. The court reasoned that because the term “falsity” had been paired with “deception,” it necessarily implied “an element of tortiousness or wrongfulness, as in ‘deceitfulness, untrustworthiness, faithlessness,’” (Id. at p. 354), which went beyond mere error.
The court then reviewed the structure and purpose of the CAN-SPAM Act as a whole, and “concluded that Congress could not have intended, by way of the carve-out language, to allow states to enact laws that prohibit ‘mere error’ or ‘insignificant inaccuracies.’” (Virtumundo, supra, 575 F.3d at p. 1061 [discussing and analyzing Omega, supra, 469 F.3d at pp. 354-355].) Specifically, the court noted that the CAN- SPAM Act provided a private cause of action for “‘header information that is materially false or materially misleading,’” suggesting that that Congress only intended to “target . . . e‑mails containing something more than an isolated error.” (Omega, supra, 469 F.3d at pp. 354, 355 [emphasis in the original].) In the court’s view, state laws claims providing a cause of action for “bare error” in a commercial e-mail would necessarily frustrate this “national standard.”
In Virtumundo, supra, 575 F.3d 1040, the Ninth Circuit considered whether the CAN-SPAM Act preempted a state law claim alleging that defendant sent commercial e-mails from domain names that “obscure[d] the identity of the sender.” (Id. at p. 1058.) The defendant, Virtumundo, Inc., had sent the plaintiff commercial e-mails from several different domain names, including “vmmail.com,” “vmadmin.com,” “vtarget.com,” and “vmlocal.com.” (Id. at p. 1064.) Plaintiff conceded that the domain names were “properly registered to Virtumundo,” but argued that they “fail[ed] to clearly identify Virtumundo as the e-mails’ sender and therefore misrepresent or obscure the identity of the sender” in violation of the Washington law. (Id. at p. 1063.)
Like the Omega court, the Ninth Circuit began its analysis by interpreting the meaning of the phrase “falsity or deception” as used in the CAN-SPAM Act’s carve-out provision. After reviewing the text and history of the statute, the court agreed with Omega’s conclusion that the phrase was not intended to permit states to “to create liability for immaterial inaccuracies or omissions.” (Virtumundo, supra, 575 F.3d at p. 1062.) The court explained that the CAN-SPAM Act specifically prohibited “deceptive subject line heading or materially false or materially misleading header information” and “intended this standard to regulate commercial e-mail messaging practices ‘on a nationwide basis.’ [Citation.]” (Id. at p. 1062.) In the court’s view, “ [i]t would be logically incongruous to conclude that Congress endeavored to erect a uniform standard but simultaneously left states and local lawmakers free to manipulate that standard” by imposing liability for inaccuracies that did not raise to the level of deception. (Id. at p. 1063.)
The court further concluded that, under its interpretation of the Act, plaintiff’s claims for “obscured” domain names were necessarily preempted, explaining that “[t]here is . . . nothing inherently deceptive in Virtumundo’s use of fanciful domain names.” (Virtumundo, supra, 575 F.3d at p. 1063.) As a result, plaintiff’s claims “relate[d] to, at most, non-deceptive statements or omissions,” (Id. at p. 1064), and targeted “e-mail activity that is not unfair or deceptive.” (Id. at p. 1063, fn. 21.)
b. Our holding is consistent with Virtumundo and Omega
Neither Virtumundo nor Omega decided the issue presented here: whether a state law that targets commercial e-mails containing deceptive content is preempted by the CAN-SPAM Act because it does not require plaintiff to establish all of the elements of a traditional fraud claim. (See Subscriberbase, supra, 2010 U.S. Dist. LEXIS 22645 at pp. *29-*33 [Virtumundo and Omega did not resolve whether “CAN-SPAM Act spared section 17529.5 plaintiffs from pleading” all of the elements of common law fraud]; Consumerbargaingiveaways, supra, 622 F.Supp.2d at p. 943 [Omega “merely held that state laws were preempted insofar as they permitted claims for immaterial errors . . . . It did not hold . . . that all elements of common-law fraud were required or that any particular element other than materiality was required to survive preemption”].) Instead, those cases held that the “CAN-SPAM Act forbids state statutes that reach non-deceptive practices” in commercial e-mails, such as mere errors or immaterial misstatements. (Subscriberbase, supra, 2010 U.S. Dist. LEXIS 33645 at p. *31.) In other words, Omega and Virtumundo concluded that state statutes that broaden the scope of prohibited e-mail beyond the uniform standard established by the CAN-SPAM Act are preempted. As explained above, California’s decision to remove the elements of common law fraud does not affect the type of statement that might subject a defendant to liability and, as a result, Virtumundo and Omega’s analysis are of limited relevance.
Respondents disagree, arguing that Omega specifically held that the CAN-SPAM Act preempts state law claims imposing “strict liability” for deceptive e-mail content. Omega, however, held that the federal statute preempts state law claims “imposing strict liability for insignificant inaccuracies” or “errors.” (Omega, supra, 469 F.3d at p. 355.) It did not hold that Congress preempted state law claims that impose strict liability for commercial e-mails that contain materially deceptive content.[5]
In sum, we conclude that the CAN-SPAM Act’s savings clause applies to any state law that prohibits material falsity or material deception in a commercial e-mail regardless of whether such laws require plaintiff to prove and plead each and every element of common law fraud. We find nothing in the Act suggesting that it was Congress’s ‘“clear and manifest”’ intention that the phrase “falsity and deception” should apply as narrowly as Respondents suggest. (Virtumundo, supra, 575 F.3d at p.1060; Altria, supra, 129 S.Ct. at p. 543.)[6]
II. Hypertouch Has Raised a Triable Issue of Fact Regarding Whether Respondents Violated Section 17592.5

Because the CAN-SPAM Act does not preempt claims arising under section 17529.5, we must review Respondents’ alternative argument that summary judgment is appropriate because Hypertouch failed to establish a triable issue of fact as to whether Respondents violated section 17529.5. Respondents argue that they are entitled to summary judgment on Hypertouch’s section 17529.5 claim for two reasons. First, they argue that Hypertouch failed to establish that Respondents sent or had any knowledge of the offending emails. Second, Respondents argue that the allegedly “deceptive” content of the e-mails did not violate the substantive prohibitions described in section 17529.5.
A summary judgment may be granted only where it is shown that the entire “action has no merit.” (Code Civ. Proc., § 437c subd. (a).) Therefore, if there is a triable issue of fact regarding any portion of Hypertouch’s section 17529.5 claim, summary judgment must be denied.
A. Hypertouch is Not Required to Demonstrate That Respondents Sent or Had Knowledge of the Offending E-mails

Respondents first argue that summary judgment is appropriate because Hypertouch has failed to identify any evidence establishing that Respondents sent the e‑mails at issue,” or “knew” that an affiliate was sending e-mail advertisements containing content that prohibited section 17529.5.[7]
As discussed above, the plain text of section 17529.5 indicates that its application is not limited to entities that “send” the offending e-mails nor does it require plaintiff to establish that defendant had knowledge of such e-mails. Rather, the statute imposes liability on any “person or entity” that “advertise[s]” in an e-mail containing any of the forms of deceptive content described in section 17529.5, subdivisions (a) (1) – (3). The Legislative findings make clear that the statute was specifically intended to apply to “the advertisers who use spam, as well as the actual spammers” because “the actual spammers can be difficult to track down” and “the true beneficiaries of spam are the advertisers.” (§ 17529, subds. (j), (k).)[8]
Therefore, for purposes of section 17592.5, the relevant question is not whether Hypertouch can demonstrate that Respondents sent or had knowledge of the e-mails, but rather whether they advertised in those e-mails. In this case, the evidence raises a triable issue of fact as to whether Respondents advertised in some or all of the e-mails received by Hypertouch.
The record demonstrates that the Respondents market and advertise third-party promotional offers. To increase participation in these offers, Respondents contract with “affiliates” that send commercial e-mails containing a links to the offers. If a consumer opens the e-mail, and ultimately chooses to participate in the promotional offer, Respondents pay the affiliate a fee for generating a consumer lead. Hypertouch’s evidence showed that at least some portion of the e-mails it received contained a link redirecting the consumer to Respondents’ promotional materials. Moreover, Respondents admitted that thousands of these e-mails were sent by one of their affiliates. We believe this evidence is sufficient to raise a triable issue of fact as to whether Respondents “advertised” in the e-mails at issue.
B. There are Triable Issue of Facts With Respect to Whether the Content of the E-mails Violated Section 17529.5

Respondents next contend that they are entitled to summary judgment because Hypertouch has failed to establish a triable issue of fact as to whether the e-mails at issue in this suit contained content that violates the substantive prohibitions described in section 17529.5, subdivision (a).
Hypertouch has asserted three different categories of section 17529.5 violations. First, it alleges that Respondents violated section 17529.5, subdivision (a)(1) by advertising in e-mails that contained a third party’s domain name without the permission of the third party. Second, it alleges that Respondents violated section 17529.5, subdivision (a)(2) by advertising in e-mails that included fictitious names in the “From” and “To” fields. Third, it alleges that Respondents violated section 17529.5, subdivision (a)(3) by advertising in e-mails that contained false and misleading subject lines.[9] For the reasons that follow, we conclude that Hypertouch has demonstrated a triable issue of fact as to whether Respondents violated subdivision (a)(3).[10]
1. Summary of alleged violations of section 17592.5, subdivision (a)(3)
Hypertouch has alleged that numerous e-mails at issue in this suit violate section 17259.5, subdivision (a)(3), which prohibits the “use of a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.” Hypertouch identified numerous e-mails that contain subject lines purportedly offering the recipient free products or merchandise. Representative subject lines include: “Get a FREE Golf Retreat to 1 of 10 destinations;” “Let us know your opinion and win a free gift card”; “Do you think Hillary will win‌ Participate now for a Visa gift card;” “which would you choose‌ win a free gift card for letting us know.” Hypertouch contends that, in fact, in order to procure such items the recipient was required to spend money or sign up for another offer of products or services promoted on Respondents’ websites.
In support of these allegations, Hypertouch’s President provided deposition testimony that, after receiving some of these e-mails, he clicked on a link that took him to a promotion page demonstrating that “in order to receive [the advertised free item] you have to . . . purchase from one these offers . . . I do not recall ever seeing an offer for an incentive award . . . that did not require a purchase or other obligation.” In addition, an employee of a ValueClick subsidiary stated that, in order to obtain the advertised “gifts,” the recipient of the e-mail was typically required to participate in additional offers.


2. Hypertouch has demonstrated a triable issue of material fact
Respondents allege that they are entitled to summary judgment on Hypertouch’s subdivision (a)(3) claims for three reasons, all of which lack merit.
a. The language of subdivision (a)(3) encompasses claims where the subject line misleads consumers about the terms and conditions of an offer

First, Respondents argue that “to violate [subdivision (a)(3)] an e-mail’s subject line must suggest that the contents of the e-mail will concern one topic (e.g., great to see you, suggesting a personal message), when in fact, the contents or subject matter of the message relate to an entirely different topic (e.g., an advertisement.)” Respondents further contend that, in this case, “the subject lines and corresponding advertisements in the e-mails at issue here . . . concern precisely the same subject matter: both promote incentive rewards for participating in the offers contain on promotional websites.” In other words, Respondents argue that subdivision (a)(3) has no application where the subject line creates the false impression that the recipient may receive a free gift when, in fact, the contents of the e-mail reveal that is untrue.
We reject the Respondents’ narrow reading of the statute. The plain text of the statute states it is unlawful to advertise in a commercial e-mail that has a “subject line” that “would be likely to mislead a recipient . . . about a material fact regarding the contents or subject matter of the message.” (§ 17529.5, subd. (a)(3).) If a subject line creates the impression that the content of the e-mail will allow the recipient to obtain a free gift by doing one act (such as opening the e-mail or participating in a simple survey), and the content of the e-mail reveal that the “gift” can only be obtained by undertaking more onerous tasks (such as paying money for the gift or agreeing to partake in other offers), the subject line is misleading about the contents of the e-mail. We find no merit in the Respondents’ narrow interpretation of the statutory language.



b. Respondents have failed to carry their initial burden to show that the terms of the offer were consistent with representations in the subject line

Respondents also argue that they are entitled to summary judgment because Hypertouch has identified “no evidence that individuals were required to pay anything to receive any promotional item offered.” Thus, Respondents contend that Hypertouch has failed to establish that consumers were actually required to pay money to obtain the “free” gift advertised in the subject line of the e-mail. This argument fails, however, because Respondents have failed to carry their initial burden of production, as required under summary judgment procedures.
It is well-established that, as the party moving for summary judgment, Respondents had the “initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) To satisfy its initial burden, a defendant must “present evidence . . . and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant may satisfy this requirement in one of two ways: First, it may “present evidence that conclusively negates an element of the plaintiff’s cause of action.” (Id. at p. 855.) In the alternative, defendant “may . . .present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Ibid.)
In this case, Respondents have pointed to no evidence in the record, such as a declaration or deposition testimony, demonstrating that the offers at issue did not require participants to provide money to obtain the “free” gift referenced in the subject line. Instead, its brief cites to two pieces of evidence that, in its estimation, demonstrate Hypertouch does not possess, and cannot reasonably obtain, evidence “that individuals were required to pay anything to receive any promotional item offered.” The first piece of evidence is an admission by Hypertouch that “[n]either Plaintiff or any of its end users ever attempted to participate in these offers.” This admission, however, only demonstrates that Hypertouch never actually tried to fulfill whatever requirements were necessary to obtain a free gift. It does not demonstrate that the terms of those offers did not require the participant to pay a fee to obtain the advertised gift.
The second piece of evidence Respondents cite is deposition testimony in which Hypertouch’s President stated that he could not recall whether “consumers could obtain the incentive reward identified in ‘Subject line’ . . . if they participated in the corresponding offer.” Again, this evidence does not establish that the terms of the offer permitted the consumer to obtain a free gift without paying a fee. Rather, the statement only indicates that Hypertouch was unaware whether a consumer could obtain the advertised gift if it actually fulfilled whatever terms were required.
Because Respondents have identified no evidence negating Hypertouch’s allegation that individuals were actually required to pay money to obtain the “free” gifts referenced in the subject line of the e-mails, it has not carried its initial burden.
c. There is a triable issue of fact regarding whether the subject lines were likely to mislead
Finally, Respondents argue that they are entitled to summary judgment on Hypertouch’s subdivision (a)(3) claim because the subject lines at issue are not “likely to mislead” the recipient.
The “likely to mislead” language in section 17529.5, subdivision (a)(3) is “virtually identical” to the standard that is used in applying other consumer protection laws that target false or deceptive advertisements, including section 17200 and 17500. (Kleffman, supra, 46 Cal.4th at p. 343 [“the language in section 17529.5, subdivision (a)(3) . . . is virtually identical to the language that, only months before section 17529.5’s passage, a California appellate court announced for applying section 17500 and 17200”].) It is well-established that whether a statement is “likely to deceive” a reasonable consumer is “generally a question of fact.” (Linear Technology Corp. v. Applied Materials, Inc., (2007) 152 Cal.App.4th 115, 134; Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361.) “[T]he primary evidence” in such cases “is the advertising itself.” (Brockey v. Moore (2003) 107 Cal.App.4th 86, 100.) Therefore, to establish summary judgment, Respondents must establish that no reasonable trier of fact could conclude that any of the subject lines were likely to mislead a recipient, acting reasonably under the circumstances.
The numerous subject lines at issue in this suit contain a wide variety of different statements. Some simply state that the recipient of the e-mail can get a free gift (“Get a $300 gift card FREE” “Get a FREE Golf Retreat to 1 of 10 destinations”, others suggest that the recipient can obtain something free for doing a particular task (“Let us know your opinion and win a free gift card”; “Do you think Hillary will win‌ Participate now for a Visa gift card”, while still others contain a variety of phrases that might indicate to the recipient that there are terms and conditions that must be fulfilled to obtain the gift (“Let us buy you a designer department store gift card. Participate now”; “Participate to receive a Holiday iPhone! (See offer for details).”)
Respondents have made no effort to explain why a reasonable trier of fact could not conclude that many of the subject lines at issue here, such as those offering a free gift card with no qualifying language, would be likely to mislead a reasonable person. Instead, it targets isolated e-mails in the record, such as one e-mail with the subject line “GAP Promotion,” and argues that those particular e-mails are, as a matter of law, not deceptive. Regardless of whether Respondent is correct that the isolated e-mails it cites are not likely to mislead the recipient, that alone does not entitle it to summary judgment on Hypertouch’s subdivision (a)(3) claim, which includes many other subject lines that Respondents do not address.
III. Respondents are Not Entitled to Summary Adjudication

Finally, PrimaryAds’ argues that, pursuant to Civil Code of Procedure section 340, subdivision (a), which prescribes a one-year limitations period for “[a]n action upon a statute for a penalty or forfeiture,” it is entitled to summary adjudication on any claim that is predicated on an e-mail received more than one year prior to the filing of this action. Hypertouch disagrees, arguing that claims arising under section 17592.5 are governed by Code of Civil Procedure section 338, subdivision (a), which prescribes a three-year limitations period for “an action upon a liability created by statute, other than a penalty or forfeiture.”
Section 17529.5, subdivision (b)(1)(B) provides that a person or entity bringing an action for claims arising under the section “may recover either or both of the following:”
(i) Actual damages
(ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident

Hypertouch’s Complaint, in turn, seeks recovery under both provisions.
In G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256 (G.H.I.I.), the court analyzed whether Code of Civil Procedure section 340 applied in the context of a statutory scheme that, like section 17529.5, contains independent provisions for recovery of actual damages and statutory damages. The plaintiff in G.H.I.I. asserted violations of the Unfair Practices Act (§ 17000, et seq.), which provides for the award of actual damages in one section (§ 17070), and treble damages in another section (§ 17082). Both forms of recovery are required “if a violation of the [the Act] is established.” (G.H.I.I., supra, 147 Cal.App.3d at p. 277.) In other words, the Act does not require a plaintiff to make any additional showing to obtain treble damages; such damages attach upon establishing a statutory violation.
The appellant argued that, under the statutory scheme, a “two-fold statute of limitation” applied: “the one-year period [in Civil Code of Procedure section 340] to the claim for treble damages, and the three-year period [in Civil Code of Procedure section 338] to the recovery of actual damages.” (G.H.I.I., supra, at p. 278.) The court agreed, concluding that different statute of limitations may apply where plaintiff seeks “actual and treble damages . . . based upon separate statutes contained within the same act.” (Id. at p. 278.) The court further concluded that, for the purposes of the Unfair Practices Act, a different statute of limitations did apply to recovery of actual damages versus recovery of treble damages:
Appellants claim compensatory damages pursuant to section 17070, and request trebling of those damages in accordance with section 17082. Since these claims are patently severable, and the actual damages are not in the nature of a “penalty or forfeiture,” we conclude that appellants are entitled to recover all actual damages which accrued within three years of the filing of the complaint, and that all of such damages which accrued within one year prior to the filing of the complaint may be trebled under section 17082
(Id. at p. 279.)
In Menefee v. Ostawari (1991) 228 Cal.App.3d 239 (Menefee), the court approved of G.H.I.I.’s analytical framework, explaining that “[c]ertain statutory schemes contain separate, independent statutory provisions for recovery of actual damages and treble damages. [Citation.] In such case, a claim for actual damages under one statute will be governed by a different statute of limitations than section 340, subdivision (1), which will govern the claim for treble damages.” (Id. at p. 243; see also Ashland Oil Co. v. Union Oil Co. (Temp. Emer. Ct.App. 1977) 567 F.2d 984, 990-992 [applying California law and reaching same conclusion].)
Based on the holdings in G.H.I.I. and Menefee, we must independently assess the appropriate statute of limitations applicable to section 17592.5, subdivision (b)(1)(B)(i), which permits the plaintiff to recover “actual damages,” and subdivision (b)(1)(B)(ii), which permits the plaintiff to recover “liquidated damages” in the amount of $1,000 per e-mail or $1,000,000 per incident. Section 1759.2.5 shares essentially the same structure as the statutory provisions at issue in G.H.I.I. First, a plaintiff that elects to seek both actual and liquidated damages is entitled to both forms of recovery if it establishes a statutory violation. (G.H.I.I., supra, 147 Cal.App.3d at p. 277 [Unfair Practices Act requires award of actual and treble damages “if a violation of the [the Act] is established”].) Second, claims seeking actual versus liquidated damages are “patently severable,” (id. at p. 277.), as evidenced by the fact that the plaintiff may elect to seek “either or both” forms of recovery. (§ 17592.5, subd. (b)(1)(B).)
Under G.H.I.I.’s framework, we conclude that Hypertouch’s claim for “actual damages” under subdivision (b)(1)(B)(i), which is clearly not in the nature of a penalty or forfeiture, is controlled by the three-year limitations period described in section 338, subdivision (a). Thus, Hypertouch may pursue actual damages for any e-mail it received three years prior to the filing of its complaint.
We next construe the proper statute of limitations applicable to Hypertouch’s claims for liquidated damages under subdivision (b)(1)(B)(ii). The “settled rule” in California is that statutes which provide for damages that are in “‘addition[] to actual losses incurred’” (Menefee, supra, 228 Cal.App.3d at p. 243.), or “not based upon actual injury,” (Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97), are generally “‘considered penal in nature [citations], and thus governed by the one-year period of limitations stated in section 340, subdivision (1).’ [Citation.]” (Menefee, supra, 228 Cal.App.3d at p. 243.) However, section 340 does not apply if the award of a penalty is discretionary, rather than mandatory. (See generally Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 133 (Jensen) [“Code of Civil Procedure section 340, subdivision (1), applies only where the penalty is mandatory . . . . The key question is whether the penalty is mandatory or discretionary”]; Menefee, supra, 228 Cal.App.3d at p. 243.)[11] Applying those principles here, we conclude that Hypertouch’s claim for liquidated damages under section 17592.5, subdivision (b)(1)(B)(ii) is subject to section 340’s one year limitations period.
The liquidated damages described in section 17592.5 have several features indicating that they are penal in nature. First, section 17592.5 provides that liquidated damages are to be awarded in addition to actual losses. (Menefee, supra, 228 Cal.App.3d at p. 243 [“statutes which provide for recovery of damages additional to actual losses incurred . . . are considered penal in nature]; G.H.I.I., supra, 147 Cal.App.3d at p. 277.) The fact that the Legislature allowed a plaintiff to “recover ‘either or both’ of actual damages and statutory damages” indicates “that the two kinds of damages are different and thus logically serve different purposes: compensatory in the case of the former and penal in the case of the latter.” (Phillips v. Netblue, Inc. (N.D. Cal. Dec. 12, 2006, Case No. C-05-4401 SC) 2006 U.S. Dist. LEXIS 92573, *16 (Netblue); see also Hypertouch, Inc. v. Azoogle.com, Inc. (9th Cir. July 9, 2010, Case No. 09-15943) 2010 U.S. App. LEXIS 14121, *4 (Azoogle.com) [finding liquidated damages provision to be penalty because they may be awarded “in addition to actual damages”].)
Second, nothing in the text of the statute indicates that the amount of the liquidated damages – $1,000 per e-mail or $1,000,000 per incident – is in any way based on the actual injury suffered by the entity seeking redress. (Netblue, supra, 2006 U.S. Dist. LEXIS 92573. at pp. *16-*17 [“calculation of statutory damages [under section 17529.5, subdivision (b)(1)(B)(i)] is completely independent of any determination regarding actual damages”]; Azoogle.com, supra, 2010 U.S. App. LEXIS 14121 at p. *4 [“An award of liquidated damages under § 17529.5(b)(1)(B)(ii) has no relation to the amount of damages”].) Indeed, the legislative history specifically states that the liquidated damages provision was intended to allow a plaintiff to recover more than its actual damages: “‘In addition to actual damages (likely to be small in many such suits) the bill permits the plaintiff to seek liquidated damages . . . .’ [Citation.]” (Netblue, supra, 2006 U.S. Dist. LEXIS 92573. at p. *17 [citing CA B. An., S.B. 186 Assem., June 26, 2003].) Because the liquidated damages described in subdivision (b)(1)(B)(ii) are awarded in addition to plaintiff’s actual damages, and their amount has no apparent connection to the injury suffered by the plaintiff, they are in the nature of a penalty.
Hypertouch, however, contends that the award of liquidated damages is discretionary under the statute and therefore cannot constitute a penalty within the meaning of section 340. (See Jensen, supra, 35 Cal.App.4th at p. 133 [“Code of Civil Procedure section 340, subdivision (a), applies only where the penalty is mandatory].) It offers two arguments in support of its position. First, Hypertouch contends that liquidated damages are not “mandatory” because subdivision (b)(2) requires the trial court to reduce liquidated damages to a maximum of $100 per e-mail or $100,000 per incident if it finds the defendant “established and implemented . . . practices and procedures reasonably designed to effectively prevent . . . e-mail advertisements that are in violation of [section 17549.5.].” In Hypertouch’s view, this safety valve provision effectively renders the imposition of penalties discretionary.
In TJX Companies, supra, 163 Cal.App.4th 80, the appellate court considered and rejected a similar argument. The specific issue presented in TJX Companies was whether claims arising under a statute that required the court to impose “a civil penalty not to exceed two hundred fifty dollars ($250) for the first violation and one thousand dollars ($1,000) for each subsequent violation” was a penalty within the meaning of section 340. (See id. at p. 84.) Plaintiff argued that because the court could chose any penalty amount up the statutory maximums, the penalty was discretionary.
The appellate court disagreed, explaining that the statute did not provide the trial court discretion to decide whether or not to impose penalties. Instead, the statute only provided the court discretion in determining “the amount of the penalty assessment.” (TJX Companies, supra, 163 Cal.App.4th at p. 86.) The court further noted that although the amount of the penalty could “[p]resumably . . . span between a penny (or even the proverbial peppercorn we all encountered in law school) to the maximum amounts authorized by the statute,” the imposition of some penalty was still mandatory. (Id. at p. 86.)
In this case, the language of Subdivision (b)(2) cannot be meaningfully differentiated from the statute at issue in TJX Companies. The subdivision requires the court to reduce the liquidated damages to a maximum of $100 per e-mail or $100,000 per incident. Therefore, although the trial court is required to reduce liquidated damages, even to a nominal amount, nothing in the subdivision suggests that the court is permitted to dispense with penalties altogether.
Additionally, Hypertouch argues that liquidated damages are discretionary, rather than mandatory, because the plaintiff has the option to choose whether to allege a claim for liquidated damages. This exact argument has been raised by Hypertouch in other proceedings and rejected: “Hypertouch’s argument . . . misses the point; if, as here, the plaintiff does allege such claim and, further, is able to establish a violation of § 17529.5(a), an award of liquidated damages is mandatory.” (Hypertouch Inc. v. Azoogle.com, Inc. (N.D. Cal. March 19, 2009, Case No. C-08-490 MMC) 2009 U.S. Dist. LEXIS 25999, *6, fn. 4 [affirmed by Azoogle.com, supra, 2010 U.S. App. LEXIS 14121, *3-4 [“We . . . agree with the district court that Hypertouch’s claims for liquidated damages under . . . [section] 17529.5(b)(1)(B)(ii) were subject to . . . [section 340(a)’s one-year statute of limitations”].)
Hypertouch’s argument also fails to consider why our courts have held that discretionary, as opposed to mandatory, penalties are not subject to a one year limitations period: “If the one-year limitations period applied to discretionary penalties, a plaintiff would be placed in the untenable position of being unable to determine the applicable statute of limitations until after trial, when the court determined whether to allow up to [such] . . . damages.” (Jensen, supra, 35 Cal.App.4th at p. 133; see also Holland v. Nelson (1970) 5 Cal.App.3d 308, 312.) Those concerns are not present where the plaintiff is permitted to choose at the outset whether to pursue penalties that are ultimately mandatory if a violation is shown.
In sum, Hypertouch may seek actual damages for any e-mail it received within three years prior to the filing of the complaint and liquidated damages for any e-mail received within one year prior to the filing of the complaint. As a result, PrimaryAds is not entitled to summary adjudication. Although section 340 limits the type of recovery that Hypertouch may seek for e-mails received more than one year prior to the filing of the complaint, it does not bar Hypertouch’s claims on those e-mails altogether.[12]

DISPOSITION

We reverse the trial court’s grant of summary judgment, vacate its award of costs and remand for further proceedings consistent with this ruling.


ZELON, J.
We concur:


WOODS, J.


JACKSON, J.

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