FINDINGS OF FACT CONCLUSIONS OF LAW AND

VERA M. SCANLON, Magistrate Judge.

Plaintiff Todd C. Bank ("Plaintiff" or "Mr. Bank"), a pro se attorney, brings this action against Defendant Hydra Group LLC ("Defendant" or "Hydra"), asserting a single cause of action under Section 17529.5(a)(3) of the California Business and Professions Code, arising out of three allegedly misleading commercial email advertisements that he received. See generally Amended Complaint, ECF No. 21. The parties consented to this Court's jurisdiction, ECF No. 146, and a bench trial was held to determine Defendant's liability and damages, if any. See Transcript of Civil Cause for Bench Trial Before The Honorable Vera M. Scanlon ("Tr."), ECF No. 155.

Based on consideration of the evidence introduced at trial, the parties' post-trial submissions and the applicable law, the Court makes the findings of fact and conclusions of law set forth in Parts III and IV.D below pursuant to Federal Rule of Civil Procedure 52(a). The Court finds that Defendant is not liable to Plaintiff under Section 17529.5(a)(3) of the California Business and Professions Code. The Clerk of Court is directed to enter judgment in favor of Defendant and close the case.

I. EVIDENCE OFFERED AT TRIAL

During the bench trial, Plaintiff testified on his own behalf and was cross-examined by Defendant's counsel. See Tr. 12:23-86:22. Jared Balek Gordon, Hydra's general counsel during the relevant time period, was called by Mr. Bank and testified on direct- and cross-examination via video. See Tr. 94:8-152:9.

A. Plaintiff's Testimony

Plaintiff testified that he received the three emails at issue at an email address belonging solely to Plaintiff and to which Plaintiff was the only person with access. Tr. 14:6-14. The first email was received by Plaintiff on January 22, 2010. Tr. 14:15-16. The second and third emails were both received by Plaintiff on January 27, 2010. Tr. 15:16-25. Printouts of Portable Document Format ("PDF") versions of the emails were admitted into evidence. See Trial Exhibit 1; Tr. 16:15-17.1

The subject line of the first email received by Plaintiff stated: "ATTN: Your Auto Insurance Renewal Reminder Jan 21. 2010." Trial Exhibit 1. The subject line of each of the two subsequent emails received by Plaintiff stated: "ATTN: Your Auto Insurance Renewal Reminder Jan 27. 2010." Id. The "From" field in each of the three emails received by Plaintiff contained the following email address: Car.Insurance.Quotes@STARTSAVINGZ.COM. Id. The body of each of the three emails contained the following text:

Id. A portion of the text appeared over an image of two individuals on a beach (hereinafter, the "Image"). Id. The emails included multiple hyperlinks. See Tr. 36:19.2

Plaintiff testified that when he opened the first email he received, he "saw that the email from the body of it did not pertain to any particular reminder," and that "in fact . . . any auto insurance policy that [Plaintiff] had [at the time] . . . had not expired and was not due to expire [] around that time of year." Tr. 15:5-10. "In any event," Plaintiff testified, "the body of the email made clear that the subject line was misleading insofar as the subject line made it appear as if it pertained to my own [insurance] policy when the email was clearly instead, as shown by the body of it, a general advertisement for — looking for quotes for auto insurance." Tr. 15:11-15.

Plaintiff testified that it was his understanding that Entourage Media, Inc. ("Entourage") "was the entity that physically . . . sen[t] the emails," Tr. 45:9-10, and that "as best [he could] tell," the "goods and/or services that were being promoted in the emails that make up [Trial] Exhibit 1 were for [Quote] Wizard," Tr. 38:17-19. Hydra's name does not appear in the emails. See Trial Exhibit 1; Tr. 37:15-18. As to the basis of his belief regarding Hydra's involvement with the emails, Mr. Bank testified that around the time he received each of the emails, he clicked on hyperlinks therein, and "the first site that . . . came up was what [] I call a jump site by which I mean a site that comes up and very quickly essentially goes away . . . and some other site comes up in its place." Tr. 36:18-25.3 Plaintiff initially testified at trial that the "jump site" that appeared was "Hydranetwork.com, if I recall correctly." Tr. 36:25-37:3. Later in his testimony, Plaintiff stated that the "jump site" may have instead been LynxTrack.com:

Tr. 50:7-51:1. When asked if he had "anything to prove" his testimony regarding the "jump site," Plaintiff responded, "I don't have it here. I might have — I might have records on my computer. I'm not sure." Tr. 51:2-4.

Plaintiff did not testify as to whether, prior to receiving the subject emails, he had provided consent to Entourage, Quote Wizard or Hydra to receive the emails, or had provided his email address to Entourage, Quote Wizard or Hydra. There was no testimony elicited about the location from which the emails were sent, particularly whether they were sent from California. The only connection to California on the face of the emails was the mailing address listed for Entourage. See Trial Exhibit 1.

During trial, Plaintiff attempted to access the three subject emails on a computer with internet access provided by the Court, see Tr. 22:21-23:11, 55:12-16, 57:24-58:3, and "screenshots" of "what [was] left" of the emails were admitted into evidence, see Tr. 58:4-9, 61:15-17, 66:17-19, 74:24-25, 80:8-13. Plaintiff clicked on hyperlinks contained in the emails accessed at trial and determined that each was "dead." Tr. 73:23-25, 82:11-13. With the assistance of a Court technician, Plaintiff accessed hypertext markup language (HTML) versions of each email (printouts of which were admitted into evidence), which did not contain a reference to Hydra or LynxTrack. Tr. 83:3-25. Each of the hyperlinks displayed in the HTML versions of the emails identified a URL beginning with "http://STARTSAVINGZ.COM," followed by differing "letters and numbers and slashes." Tr. 76:19-23, 78:13-16.

B. Mr. Gordon's Testimony

Mr. Gordon was employed by Hydra as its general counsel from January 1, 2010 to October 2010.4 Tr. 94:22-95:3. He explained that Hydra operated an "affiliate network" named Hydra Network, which was essentially a "middle man between advertisers. . . [a]nd many independent publishers of advertising," known as "affiliates." Tr. 104:5-8. Mr. Gordon testified that Hydra Network was one of many affiliate networks in the market at the time. Tr. 159:13-18.

Through Hydra's affiliate network, authorized affiliates could log into Hydra Network's website (network.hydranetwork.com) to access and download advertising campaign information and materials that the affiliates "could publish on behalf of Hydra Network's advertisers." Tr. 113:16-20, 130:14:15. The Hydra Network website included graphics approved for use with specific advertising campaigns, approved subject lines, and payment details. Tr. 130:3-13. With respect to subject lines for email advertisements, Mr. Gordon testified that Hydra typically "would provide suggested subject lines [and] [m]any times [] would provide required subject lines so that affiliates could only use the specified subject lines." Tr. 134:25-135:3.

Hydra "provided tracking and . . . payment to the affiliate[s]." Tr. 111:2-4. Mr. Gordon explained that Hydra typically tracked advertisements in one of two ways. Tr. 111:10-11. In an email advertisement, "the email might include what's sometimes called a pixel or also sometimes called a web beacon" which is a "1x1 invisible or white pixel or clear pixel that includes a hyperlink that . . . links the server when it's triggered." Tr. 111:9-15. A more typical method, generally used "when a third party [] was sending out email[s]," was tracking the advertisement "using our redirect," meaning a hyperlink that "would redirect to a particular domain of Hydra's. It would register with Hydra's server and then it would direct to the advertiser's landing page and there would typically also be a tracking pixel on that landing page. And then whenever the action was completed, the web page loaded at that time would have also had a tracking pixel." Tr. 111:16-25. Mr. Gordon testified that advertisers that had contracts with Hydra "paid Hydra an amount typically per action[,] [which] could be the generation of a lead[,] . . . the generation of a sale[,] [or] [i]n some instances[,] it could be a click . . . ." Tr. 123:17-21. Hydra would then pay its affiliates some portion of that amount. Tr. 123:22-23.

Mr. Gordon testified that LynxTrack.com was a domain that was owned by Hydra Network in January 2010, which Hydra "used for tracking purposes." Tr. 140:7-21. Mr. Gordon testified that if it was used by "a Hydra affiliate and a Hydra campaign," then when the recipient clicked a hyperlink in the advertisement, depending on his or her browser settings, the LynxTrack.com domain would appear for "like a second" before the recipient was re-directed to a "landing" site, typically the advertiser's URL. Tr. 141:10-142:7, 149:17-18.

In January 2010, there was a written contract in effect between Hydra and QuoteWizard.com, LLC ("Quote Wizard"), pursuant to which Quote Wizard made advertisements for its products available, via Hydra Network, to Hydra's affiliates, which could then publish those advertisements. Tr. 96:11-14, 98:10-15, 109:6-8. Mr. Gordon testified that it was his understanding that Entourage was an affiliate of Hydra at the relevant time, Tr. 115:10-11, and that in January 2010, there was a written contract in effect between Hydra and Entourage. Tr. 96:17-23. There was no one contract to which all three entities—i.e., Hydra, Quote Wizard and Entourage-were each a party, and to Mr. Gordon's knowledge, Quote Wizard and Entourage did not have a relationship with one another. Tr. 98:1-6.

A document entitled "Hydra Network Terms and Conditions" (hereinafter, the "Terms & Conditions") was admitted into evidence. See Attachment C to Trial Exhibit 4; Tr. 98:16-100:9.5 The introductory paragraphs of the Terms & Conditions provide, in relevant part, as follows:

See Terms & Conditions 1. Although Mr. Gordon was unable to locate a copy of the signed Hydra-Entourage contract, he testified that its text "would have been identical" to the text in the Terms & Conditions admitted into evidence. Tr. 104:24-105:6-25.6

Mr. Gordon testified that in January 2010, Hydra "had an advertising campaign for Quote Wizard that included the [I]mage that appears in" the email printouts admitted as Trial Exhibit 1,7 Tr. 125:22-24, but that he did not know whether Hydra "provided that particular [I]mage used . . . in th[ose] particular . . . emails," Tr. 124:9-22, 125:24-126:1. He stated that Quote Wizard might have advertised with "other people using the same advertisements, for example," Tr. 126:3-4, or "other companies may have similarly provided that [] image to other affiliate networks," Tr. 127:23-128:2. Based only on the PDF printouts of the emails admitted as Trial Exhibit 1, Mr. Gordon was unable to determine whether the specific emails at issue were sent to Plaintiff as part of an advertising campaign with which Hydra was involved. Tr. 170:2-5.

II. POST-TRIAL SUBMISSIONS

Following the trial, Defendant filed three motions in limine seeking, respectively, to (1) preclude testimony from Plaintiff regarding technical aspects of the emails, such as their origination, ECF No. 153; (2) conform the pleadings to eliminate class claims, ECF No. 154; and (3) preclude Plaintiff from introducing evidence regarding his attorneys' fees on the basis that attorneys' fees are generally not awarded to self-represented plaintiffs, ECF No. 152.8 Plaintiff filed a memorandum of law opposing Defendant's motions to preclude testimony regarding the emails and attorneys' fees. ECF No. 156.9 Plaintiff submitted a post-trial memorandum of law in support of a finding that he met his burden of proof ("Pl.'s Mem."), ECF No. 157.

III. FINDINGS OF FACT

The Court finds that the evidence proves the following facts material to the Court's conclusions:

IV. LEGAL DISCUSSION

A. California's Anti-spam Law

Section 17529.5 of the California Business and Professions Code—a section of California's "Anti-spam Law," Cal. Bus. & Prof. Code § 17529.5 et seq.—provides, in relevant part, as follows:

Cal. Bus. & Prof. Code § 17529.5(a). To prevail on a claim under subsection (3) of Section 17529.5(a), the subsection invoked by Mr. Bank in this action, a plaintiff must establish that a person or entity (1) "advertise[d]" (2) "in a commercial e-mail advertisement" (3) "either sent from California or sent to a California electronic mail address" (4) when the "person knows" (5) that the email's subject line "would be likely to mislead a recipient, acting reasonably under the circumstances" (6) "about a material fact regarding the contents or subject matter of the message." Id. § 17529.5(a)(3). In the definitions section of the Anti-spam Law, "Advertiser" is defined as "a person or entity that advertises through the use of commercial email advertisements." Id. § 17529.1(a). "Commercial email advertisement" is defined as "any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extensions of credit." Id. § 17529.1(c).

An action against a person or entity that violates Section 17529.5(a)(3) may be brought by "[a] recipient of an unsolicited commercial e-mail advertisement," id. § 17529.5(b)(1)(A)(iii), who 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 [Section 17529.5(a)(3)], up to one million dollars ($1,000,000) per incident," id. § 17529.5(b)(1)(B)(i)-(ii). A prevailing plaintiff in such an action may recover reasonable attorneys' fees and costs. Id. § 17529.5(b)(1)(C).

B. Plaintiff's "Material Role" Theory Is Not Supported By The Statute Or Case Law

In his Amended Complaint, Plaintiff alleged that Hydra "sent" the emails. Amended Complaint ¶ 8, ECF No. 21. At trial and in his post-trial brief, Plaintiff proceeded under a new claim of liability-that although Hydra did not "physically" send the emails, it had a "material role" in sending them.10 See Pl.'s Mem. 12-13, ECF No. 157; Tr. 45:9-14. Plaintiff's argument in his post-trial brief on this central issue, under the heading "Defendant Had a Material Role in the Sending of the Emails," is set forth in full below:

Pl.'s Mem. 12-13.

Plaintiff's argument fails as a matter of law for two reasons. First, implicit in Plaintiff's argument that "Section 17529.5(3) does not limit liability to the sender and advertiser," is the conclusion that the statute covers "senders" who are not also "advertisers." As discussed below, this conclusion is not supported by the plain text of the statute, legislative history or case law. Second, even if Plaintiff were correct in his interpretation that the statute covers all senders of commercial email advertisements, regardless of whether the sender itself advertised in the email, the effect of such an interpretation would be that Entourage, the entity that "physically" sent the email according to Plaintiff, would be covered by the statute, not Hydra.

Section 17529.5(a)(3) does not impose liability based on playing a "material role" in sending commercial email advertisements. As to the liability of a "sender" of a commercial email advertisement under Section 17529.5, the Northern District of California recently addressed this question and found that the statute does not extend liability to senders, unless the sender is also advertising in the email. See Blanchard v. Fluent, Inc., No. 17 Civ. 4497 (MMC), 2017 WL 4224768, at *2-3 (N.D. Cal. Sept. 22, 2017). The Blanchard Court first noted that "[n]either party has cited a case that expressly addresses the issue presented, nor has the Court located any such authority." Id. at *2; see id. ("Where . . . `the state's highest court has not decided an issue [of state law], the task of the federal courts is to predict how the state high court would resolve it.'" (quoting Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (alterations in original))).

The Blanchard Court began its statutory interpretation by observing that in the same 2003 bill through which Section 17529.5 was enacted, the California Legislature (hereinafter, the "Legislature") also enacted Section 17529.2, which provides as follows:

Cal. Bus. & Prof. Code § 17529.2; see Blanchard, 2017 WL 4224768, at *2-312

The term "Initiate," which is found in Section 17529.2, but not in Section 17529.5, is defined in the statute as "to transmit or cause to be transmitted a commercial e-mail advertisement or assist in the transmission of a commercial e-mail advertisement by providing electronic mail addresses where the advertisement may be sent." Cal. Bus. & Prof. Code § 17529.1(i); see Blanchard, 2017 WL 4224768, at *3. This definition, according to the Blanchard Court, encompasses "the act of sending" commercial email advertisements. See Blanchard, 2017 WL 4224768, at *3. Thus, "[a]s the Legislature chose to prohibit the acts identified in [Section] 17529.2, when committed either by an advertiser in or sender of a commercial email, but chose to prohibit the acts identified in [Section] 17529.5 only when committed by the former, the `normal inference' to be drawn is that the Legislature did not intend a sender of a commercial email, unless such sender is also an advertiser, to be liable under [Section] 17529.5." Id. (quoting Kleffman v. Vonage Holdings Corp., 49 Cal.4th 334, 342 (2010), for the principle of statutory interpretation that hold that "[w]hen the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning").

The Blanchard Court found additional support for this interpretation in the Legislature's express consideration, and rejection, of adding language to Section 17529.5 prohibiting those who "initiate" unsolicited commercial emails advertisements. Id. The year after the bill enacting Section 17529.5 passed, the Legislature considered and passed Senate Bill 1457, which amended Section 17529.5. See Blanchard, 2017 WL 4224768, at *3 (citing legislative record). As recounted in the Blanchard decision:

Id. at *3. In light of this legislative history, the Blanchard Court concluded that it "cannot `judicially write' the words `to initiate' into §17529.5." Id. (quoting Sierra Club v. Cal. Coastal Comm'n, 35 Cal.4th 839, 856 (Cal. App. 2005), for the principle of statutory interpretation that if the Legislature has "considered, but rejected, proposed language" for inclusion in a statute, a court "may not judicially write the deleted provisions back into the [statute]").

The Blanchard Court's statutory analysis is further confirmed by recent efforts by the California Legislature to amend Section 17529.5(a)(3). On February 15, 2018, Assembly Bill 2546 ("AB-2546") was introduced in the California Assembly to amend Section 17529.5 to, inter alia, add that it is unlawful to "initiate or advertise" in a commercial email advertisement. See AB-2456, 2017-18 Reg. Sess. (Cal. 2018) (emphasis added). According to the bill's author, AB-2546 "would expand California's anti-spam law to provide that it is not only unlawful for any person or entity to `advertise in' a commercial email, but unlawful for a person or entity `to initiate, advertise in, or enable or assist a person or entity to initiate or advertise in,' a commercial email advertisement . . . ." AB-2456, Assemb. Comm. On Privacy & Consumer Protection Hr'g. The Author's Statement further provides:

Id. According to the Legislature's website, the bill "[d]ied on inactive file" on November 30, 2018.13 This Court finds the Blanchard Court's analysis persuasive.

In support of his argument that Section 17529.5 "is not limited to advertisers," Plaintiff cites two California Court of Appeals cases: Hypertouch Inc. v. ValueClick Inc., 192 Cal.App.4th 805 (Cal. App. 2011), and Balsam v. Trancos, Inc., 203 Cal.App.4th 1083 (Cal. App. 2012). The issue of whether statutory liability extends to a sender of a commercial email advertisement, where the sender did not itself advertise in the email, was not before the court in either of the cited cases.14

In Hypertouch, the plaintiff alleged that the defendants "had advertised in over 45,000 e-mails received by [the plaintiff's] customers." Hypertouch, 192 Cal. App. 4th at 815 (emphasis added). The Hypertouch Court held that "for purposes of [S]ection 17529.5, the relevant question is not whether [the plaintiff] can demonstrate that [the defendants] sent or had knowledge of the e-mails, but rather whether they advertised in those e-mails." Id. at 835. In light of the evidence in the record, including that "at least some portion of the [45,000] e-mails . . . contained a link redirecting the consumer to [the defendants' own] promotional material," the Hypertouch Court found that a triable issue of fact remained "as to whether [the defendants] `advertised' in the e-mails at issue.'" Id.; see id. at 814 (describing how email advertisements sent by affiliates of one of the Hypertouch defendants included hyperlinks redirecting consumers to promotions on that defendant's own websites, where the consumer could earn rewards offered by the defendant in exchange for participating in the advertised promotional offers); id. at 835 n.16 (noting that the record contained "additional evidence filed under seal pertaining to this triable issue" of whether defendants "advertised" in the emails).

In Balsam, the issues before the court were: (1) whether the plaintiff had standing to sue under the Consumers Legal Remedies Act and whether the defendant's employee was jointly and severally liable for the defendant company's violation of Section 17529.5; (2) whether "the sending of commercial e-mails from multiple and nonsensically named domain names [] violate[s] section 17529.5(a)(2); and (3) whether "the federal CAN-SPAM Act preempts application of California's Anti-spam Law . . . absent a finding of all elements of common law fraud." See Balsam, 203 Cal. App. 4th at 1093-94. The Balsam Court did not address whether Section 17529.5(a)(3) is appropriately interpreted as applying to persons or entities that send, but do not advertise in, commercial email advertisements.

Even if the Court were to accept that liability under Section 17529.5 could extend to a person or entity that merely sends an email without advertising in it, Defendant's claim would require the Court to extend the statute yet another step further—to persons or entities that play a "material role" in sending commercial email advertisements. There is no support from the statute or case law for such a theory of liability.15

C. Plaintiff Has Not Established Defendant's Involvement In The Sending Of The Emails

Even if the Court were to agree with Plaintiff's theory that an entity that plays a "material role" in sending an email advertisement could be found liable under Section 17529.5, Plaintiff has failed to prove by a preponderance of the evidence that Defendant played such a role with respect to the subject emails. The only evidence of Hydra's involvement with the subject emails presented by Plaintiff is his own recollection of being directed momentarily to a "jump site" after clicking on hyperlinks in the emails. See Tr. 36:25-37:3, 50:7-51:1. Plaintiff first testified that the "jump site" that appeared was www.HydraNetwork.com, Tr. 36:25-37:3, but later in this testimony stated it may have been www.LynxTrack.com, Tr. 50:7-51:1.16 Plaintiff himself appears to acknowledge the limited reliability of his recollection in light of the fact that the emails were received over eight years prior to the trial. See, e.g., Tr. 50:14-15 (". . . again, this is eight years ago . . .. I don't remember every detail"). Indeed, Plaintiff was unable to recall other details from the time; for instance, although he testified that "shortly after" receiving the emails, he contacted Quote Wizard and spoke with someone by telephone, he could not recall with whom he spoke or what the sum and substance of the calls were. Tr. 42:12-43:23.

Plaintiff did not present any evidence to corroborate his testimony that when he clicked on the hyperlinks in the subject emails he was directed to a "jump site," either LynxTrack.com or HydraNetwork.com. The HTML versions of the emails accessed at trial, including the URLs identified in the hyperlinks therein, do not indicate any connection to Hydra. Tr. 76:19-23, 78:13-16, 83:3-25. Although there is no evidence as to whether HTML versions of the emails at the time they were originally received by Plaintiff would have been capable of showing such a connection, Plaintiff's failure to preserve such evidence leaves that question unanswered.

In Defendant's view, "the absence of an expert analysis and expert testimony precludes an inference, much less a finding, that the three emails originated and/or somehow arise from defendant." Defendant's Motion In Limine as to Evidence 5, ECF No. 153. The Court need not decide whether expert testimony or analysis would always be required to establish a defendant's connection to a particular email, as Defendant appears to argue. See, e.g., Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 559 (D. Md. 2007) ("The methods of authentication most likely to be appropriate for computerized records are [Federal Rule of Evidence] 901(b)(1) (witness with personal knowledge), 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics), and 901(b)(9) (system or process capable of producing a reliable result)."); see also id. at 552 ("Rule 901(b) makes clear that the ten examples listed are illustrative only, not exhaustive. In ruling on whether electronic evidence has been properly authenticated, courts have been willing to think `outside the box' to recognize new ways of authentication."). Had Plaintiff, for instance, confirmed through discovery that Hydra Network was the only affiliate network used by Entourage to advertise Quote Wizard products or services, or that Quote Wizard used the Image only in advertisements made available to affiliates on Hydra Network, such evidence might have helped to carry Plaintiff's burden. Plaintiff may have been able to establish Hydra's involvement had he preserved a record of the "jump site" to which he was directed when he clicked on the hyperlinks in the subject emails, through the use of, for instance, screenshots, printing, or even a video recording of his computer screen showing what occurred when he clicked on a hyperlink. See, e.g., United States v. Cyberheat, Inc., No 05 Civ. 457 (TUC) (DCB), 2007 WL 686678, at *8-9 (D. Ariz. Mar. 2, 2007) (discussing methods used to "preserve[] the web page or pages to which the hyperlinks [in the emails at issue] redirected"). Likewise, Plaintiff may have been able to establish Hydra's involvement by obtaining evidence that the email address at which he received the subject emails appeared in tracking data kept by Hydra, Entourage or Quote Wizard and related to the Quote Wizard advertisements.

D. Conclusions Of Law

Based on the evidence and relevant law, the Court makes the following conclusions of law:

The Clerk of Court is respectfully directed to enter judgment in favor of Defendant Hydra Group LLC and close the case.