United States District Court

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TAGGED, INC., a Delaware corporation,

Plaintiff,

 v.

DOES 1 THROUGH 10 as affiliate

programs for XXXBLACKBOOK.COM,

and ERIK VOGELER and DOES 11

through 500 as affiliate spammers for

XXXBLACKBOOK.COM,

Defendants. /

No. C 09-01713 WHA

ORDER GRANTING 

DEFAULT JUDGMENT

AGAINST DEFENDANT 

ERIK VOGELER

INTRODUCTION

In this action involving spam of the electronic variety, plaintiff Tagged, Inc. moves for

default judgment, monetary damages, a permanent injunction, and attorney’s fees and costs

against defendant and alleged spammer Eric Vogeler. For the reasons set forth below, plaintiff’s

motion is GRANTED with respect to liability, but only GRANTED-IN-PART with respect to the

requested relief.

STATEMENT

The facts stated herein are as alleged in plaintiff’s first amended complaint (“Compl.”)

and supporting declarations. Plaintiff operates Tagged (http://www.tagged.com), a social

networking website that has over 70 million registered users (Compl. ¶ 17). Users must register

with the website in order to communicate with other members of the Tagged social network (id.

¶¶ 18, 19). 

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Communication between registered Tagged users can happen in two ways: by message or

by comment. Messages are used for private communication between Tagged users, and operate

much like an internal email system. Once sent, a message appears in the recipient’s Tagged user

account “inbox” with the familiar “from” and “subject” information. A message, being private, is

visible only to the recipient (id. ¶¶ 22, 24). A user can also communicate with another user by

posting a “comment” on the recipient’s user account profile. By contrast, a comment is visible to

all registered Tagged users who are granted access to the recipient’s user account profile (id. ¶¶

22, 25). Receipt of correspondence by either method results in a conventional email sent to the

recipient user’s personal email address (the one they initially provided when they registered on

Tagged), notifying the user that they have a new message or comment (id. ¶ 23).

During the registration process, Tagged users must read and agree to terms that restrict use

of the Tagged network for social purposes. The use of Tagged for commercial purposes is

prohibited, including sending messages or comments for commercial solicitation (id. ¶ 20;

Dworak Decl. ¶ 5, Exh. A). The terms also prohibit users from misrepresenting their identities in

the registration process (Dworak Decl. Exh. A).

The conduct underlying this motion is relatively straightforward. Plaintiff alleges that

certain Tagged users — called “affiliate spammers” in the complaint — have embarked on a

campaign of initiating thousands of unsolicited commercial emails, or “spam,” to registered

Tagged users through the website’s message system, seeking to fraudulently entice Tagged users

to click on hyperlinks in these spam messages that take them to an adult dating website called

XXXBlackBook (http://www.xxxblackbook.com) (Compl. ¶¶ 27, 28; Sargent Decl. Exh. 2). By

funneling Tagged users to websites like XXXBlackBook in this fashion, affiliate spammers

allegedly receive compensation from third parties — deemed “affiliate programs” in the

complaint — who themselves profit from the internet traffic generated by this spam (Compl. ¶¶

30, 32, 34). 

To prevent such activities, plaintiff instituted a number of technological security measures

within the Tagged social network. First, plaintiff prevented affiliate spammers from sending

messages that would direct Tagged users to the XXXBlackBook website, presumably by

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unilaterally blocking any message that contained the URL “http://www.xxxblackbook.com.” 

Second, plaintiff placed a limit on the number of messages a single Tagged user account could

send to other users within a single day (id. ¶ 37). Affiliate spammers, however, found ways to

circumvent these measures. Instead of using hyperlinks in their messages that took users directly

to the XXXBlackBook website, the affiliate spammers would use an intermediary website — with

a URL that was not blocked by Tagged — that would automatically forward the user to the

intended XXXBlackBook destination. Similarly, to defeat the daily message limitation, affiliate

spammers created multiple fraudulent user accounts on Tagged to send their spam emails (ibid.).

Plaintiff’s original complaint targeting these activities, filed on April 17, 2009, named

only “doe” defendants as affiliate programs and affiliate spammers for XXXBlackBook (Dkt. No.

1). Shortly thereafter, leave was granted for plaintiff to take discovery to ascertain the identities

of the affiliate spammers and programs that sponsor their activities (Dkt. No. 10). A few months

later, defendant Erik Vogeler was named by plaintiff as an affiliate spammer in the amended

complaint filed on October 23, 2009. 

Plaintiff alleges that defendant, by means of multiple fraudulently created user accounts,

initiated 4,273 spam emails on July 16, 2009, alone, to Tagged users through the Tagged website

(Compl. ¶¶ 29, 33). Plaintiff alleges that between July 15, 2009, and July 19, 2009, defendant

Vogeler initiated 6,079 spam emails (Suppl. Dworak Decl. ¶¶ 5, 13). Two examples showing the

content of these messages allegedly sent by defendant are included below (Compl. ¶ 29; Dworak

Decl. Exh. D): 

“you look cool! I have some new pics of me too would love if u could check and rate

them- http://www.uscoesdatingforlove.com/user/jessiegv2 My username is\n”

“what’s up ;) you sure look nauughty [sic]! I have some new pics of me too would love it

you could check and rate them- http://uscoesdatingforlove.com/user/sexydebbie0825 My

username is”

Plaintiff alleges that Tagged users who were tricked into visiting the links provided in these

messages were automatically redirected to www.xxxblackbook.com, and that defendant was

credited by affiliate programs for bringing those users to XXXBlackBook’s website (Compl. ¶ 30;

Dworak Decl. ¶ 13). The intermediary website used in all 6,079 spam emails was

“www.uscoesdatingforlove.com” (Dworak Decl. ¶ 12; Suppl. Dworak Decl. ¶ 5).

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 Tagged tracks the IP address used to post every message on its website. Every

computer or server connected to the Internet has a unique IP address. United States v.

Forrester, 512 F.3d 500, 510 n.5 (9th Cir. 2008). An IP address, therefore, can be used in

many instances to identify the particular computer used to post a message, and therefore the

individual, entity, or household who likely posted it. A proxy server “hides” a computer’s IP

address serving as an intermediary computer — a “middle man” — between the website and

the user.

 

4

None of the Tagged user accounts used to sent the 6,079 spam emails was registered under

the name Erik Vogeler (Dworak Decl. ¶ 25; Suppl. Dworak Decl. ¶¶ 4, 5). Additionally,

plaintiffs could not rely on the IP addresses used to post the 6,079 spam emails to identify

defendant, since the pattern of IP addresses indicated the use of a proxy server (see Dworak Decl.

¶ 26; Sargent Decl. Exhs. 8, 9; Suppl. Dworak Decl. ¶ 13).1

Defendant’s identification was based solely upon the search of WHOIS data, which is data

that can identify the person or entity that registered a particular URL. According to the publically

searchable WHOIS database at http://whois.domaintools.com, the registrant of the URL

“www.uscoesdatingforlove.com” is Erik Vogeler of 2669 East Jenny Ave., Fresno, CA, 93720

(Sargent Decl. Exh. 6). 

* * *

On October 23, 2009, a summons was issued as to defendant Erik Vogeler (Dkt. No. 26). 

At 7:18 p.m. on October 27, 2009, defendant was personally served at his residence in Fresno

with a copy of the summons, civil cover sheet, first amended complaint, clerk’s notice

rescheduling hearing time, order setting initial case management conference and ADR deadlines,

and plaintiff’s certificate of interested entitles or persons (Dkt. No. 27). After defendant failed to

answer the complaint within 21 days of service pursuant to FRCP 12(a), plaintiff filed a motion

for entry of default against defendant on November 11, 2009 (Dkt. No. 30). In its motion for

entry of default, plaintiff filed a sworn declaration that it knew no information that suggested that

defendant was a minor, an incompetent person, or a person in military service or otherwise

exempted from default judgment under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (Dkt.

No. 30; Hennessy Decl. ¶ 6).

Following entry of default pursuant to FRCP 55(a), plaintiff filed this motion seeking

default judgment against defendant Erik Vogeler (Dkt. Nos. 32–34). Plaintiff, however, seeks

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default judgment on only nine of the twelve claims for relief set forth in the amended complaint,

and seeks relief for only five of these nine (Dkt. No. 34 at 9). Defendant did not appear, either

personally or by a representative, at the hearing on this motion, and has not appeared in any

capacity at any stage of this action. 

ANALYSIS

Upon entry of default, the well-pled factual allegations of the complaint, except those

relating to the amount of damages, are taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826

F.2d 915, 917 (9th Cir. 1987). However, “necessary facts not contained in the pleadings, and

claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of

No. America, 980 F.2d 1261, 1267 (9th Cir. 1992). Thus, default does not automatically entitle

plaintiff to a judgment. Rather, granting or denying relief is within the court’s sound discretion,

and default judgment may be refused where the court determines no justifiable claim has been

alleged. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986).

In Eitel v. McCool, 782 F.2d 1470, 1471–1472 (9th Cir. 1986), the Ninth Circuit set forth

seven factors for district courts to consider when ruling on a motion for default judgment:

1. The possibility of prejudice to plaintiff if relief is denied; 

2. The substantive merits of plaintiff's claim;

3. The sufficiency of the complaint;

4. The amount of money at stake;

5. The possibility of dispute as to any material facts in the case;

6. Whether default resulted from excusable neglect; and

7. The strong FRCP policy favoring decisions on the merits.

Before applying the Eitel factors to this case, a few preliminary issues must be addressed.

I. ELIGIBILITY FOR DEFAULT JUDGMENT: NOTICE AND JURISDICTION.

Under the Federal Rules and the Soldiers’ and Sailors’ Civil Relief Act of 1940, default

judgments cannot be entered against persons in military service, or against minors or incompetent

persons unless a general guardian, conservator, or like fiduciary has appeared. FRCP 55(b)(2); 50

U.S.C. App. § 520. Because defendant has made no appearances whatsoever in this action, and

plaintiff’s declaration accompanying its motion for entry of default asserts that it is aware of no

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information indicating that defendant falls within any of these exceptions, this order finds that

default judgment is not barred on these grounds (Dkt. No. 30; Hennessy Decl. ¶ 6).

With respect to notice, a defendant is only entitled to notice before a hearing on a motion

for default judgment if he has made a prior appearance in the action. FRCP 55(b)(2). Here,

despite service of the complaint and summons, defendant has made no appearance herein, and

therefore no notice was required. It should be noted, however, that plaintiff still served defendant

by mail on December 10, 2009, well in advance of the hearing on January 21, 2010 (Dkt. No. 39).

Venue and personal jurisdiction over defendant have been properly established, because

(1) a substantial part of the events that gave rise to the claims occurred in this district, (2) the

servers used by Tagged to maintain its website are located in San Francisco, California (and

therefore, all messages sent via Tagged flows through San Francisco, California), and (3)

defendant Erik Vogeler maintains a residence in Fresno, California (Compl. ¶¶ 9, 14, 15).

II. DEFAULT JUDGMENT.

Plaintiff asserts twelve claims in its amended complaint: (1) fraud and deceit; (2) aiding

and abetting fraud and deceit; (3) violation of the Controlling the Assault of Non-Solicited

Pornography And Marketing Act of 2003 (the “CAN-SPAM Act”), 15 U.S.C. 7701, et seq.; (4)

violation of California Business and Professions Code Section 17529.5; (5) violation of the

Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030; (6) violation of California Penal

Code Section 502; (7) intentional interference with contractual relations; (8) intentional

interference with prospective contractual relations; (9) trespass to chattels; (10) copyright

infringement, 17 U.S.C. 101, et seq.; (11) violation of the Digital Millennium Copyright Act, 17

U.S.C. 1201, et seq.; and (12) violation of California Business and Professions Code Section

17200 (id. ¶¶ 7–19). 

As to defendant Vogeler, plaintiff asserts only nine claims — specifically Claims 1, 3, 4,

5, 6, 7, 8, 9, and 12 listed above. However, in this motion, plaintiff request relief against

defendant Vogeler only on five claims — specifically, Claims 1, 3, 4, 5, and 6 listed above. 

Accordingly, only these five claims for which plaintiff seeks relief will be addressed in turn.

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A. Merits of Substantive Claims & Sufficiency of the Complaint.

Under the rule set forth in Eitel, both the merits of the plaintiff’s substantive claims and

the sufficiency of the complaint must be examined. Since the well-pleaded factual allegations in

the complaint are taken as true at the moment default is entered, these two Eitel factors are often

considered together.

It should be noted at the onset of this analysis that the sufficiency of the complaint

requires two separate inquires: (1) whether the plaintiff has pled all required elements of a

particular cause of action, and (2) whether the plaintiff has provided the sufficient level of

particularity under the appropriate standard. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). 

1. Claim 1: Fraud & Deceit. 

Plaintiff’s claim for fraud and deceit is grounded in allegations of intentional

misrepresentation and concealment (Compl. ¶¶ 41–59). To determine if the elements of fraud

have been pleaded to state a claim for relief, district courts look to state law. Kearns v. Ford

Motor Co., 567 F.3d 1120, 1126 (9th. Cir. 2009) (citations omitted). In California, the elements

of a cause of action for fraud are: “(a) misrepresentation (false representation, concealment, or

nondisclosure ); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce

reliance; (d) justifiable reliance; and (e) resulting damage.” Engalla v. Permanente Med. Group,

Inc., 938 P.2d 903 (Cal. 1997) (internal quotation marks omitted). “‘[W]hile a federal court will

examine state law to determine whether the elements of fraud have been pled sufficiently to state

a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be stated

with particularity is a federally imposed rule.’” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,

1102 (9th Cir. 2003) (citation omitted, emphasis omitted, brackets in original). 

Here, plaintiff alleges that defendant misrepresented himself to Tagged and to other

Tagged users that he was seeking to use Tagged for social networking purposes (Compl. ¶ 42). 

Plaintiff alleges that defendant failed to disclose that he intended to use Tagged to send

unsolicited commercials emails containing links to an adult dating website (id. ¶¶ 43, 48). 

Defendant intended that Tagged users rely on his representation that he was a legitimate Tagged

user (id. ¶ 44). Plaintiff alleges that it allowed defendant to create multiple accounts, access its

network, and send emails to other users based on his misrepresentation (id. ¶ 45). Tagged users

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were tricked into clicking or entering the links contained in defendant’s emails (ibid.). 

Defendant’s actions injured Tagged by (1) decreasing its servers’ response time, (2) causing

higher-bandwidth utilization, (3) expanding its resources on hardware, software repairs and

upgrades to protected Tagged users, (4) hiring additional personnel to monitor and stop spammers

like defendant, (5) deterring users and potential users, and (6) damaging Tagged’s goodwill and

reputation (id. ¶ 46). Thus, plaintiff has stated a claim for fraud. 

ii. Claim 3: CAN-SPAM Act Violations.

Plaintiff’s claim for violation of the CAN-SPAM Act alleges violations of 15 U.S.C.

7704(a)(1), 15 U.S.C. 7704(a)(2), and 15 U.S.C. 7704(a)(5). These separate violations will be

addressed in turn.

a. 17 U.S.C. 7704(a)(1) – False Header Information.

15 U.S.C. 7704(a)(1) prohibits transmission of commercial email that contain materially

false or materially misleading header information. 15 U.S.C. § 7704(a)(1). Plaintiff alleges that

it is an internet access service as defined by the statute (Compl. ¶ 57), that defendant’s emails

constituted “electronic mail messages” sent to an “electronic mail address” as protected by the

statute, Myspace v. Wallace, 498 F. Supp. 2d 1293, 1301–02 (C.D.Cal. 2007), and these emails

were sent for commercial purposes because they sought to promote a commercial dating website

and generate profit for defendant (Compl. ¶¶ 3, 6, 27–32, 62). A header is “materially”

misleading if it impairs an internet access service’s ability to “identify, locate, or respond to a

person who initiated the electronic mail message.” 15 U.S.C. § 7704(a)(6). Plaintiff alleges that

defendant’s email messages contained materially false and misleading header information

because they failed to identify that they came from defendant (Dworak Decl. ¶¶ 12–25; Suppl.

Dworak Decl. ¶¶ 6–12). Plaintiff alleges that defendant’s actions were calculated to lead Tagged

users who received defendant’s messages to believe that the emails came from other Tagged users

who sought them out for personal and social reasons (Compl. ¶ 37; Dworak Decl. ¶¶ 12, 17, 18;

Suppl. Dworak Decl. ¶¶ 8–12). Thus, plaintiff has stated a claim under 15 U.S.C. 7704(a)(1). 

b. 17 U.S.C. 7704(a)(2) – Misleading Subject Headings.

15 U.S.C. 7704(a)(2) prohibits a person from transmitting commercial emails containing a

subject heading that he knows would likely mislead the recipient about a material fact regarding

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the content or subject matter of the message. 15 U.S.C. § 7704(a)(2). Pursuant to 15 U.S.C.

7704(g)(1), internet access services must also prove that there’s a pattern or practice violating 15

U.S.C. 7704(a)(2). Here, plaintiff alleges that defendant’s email had subject lines such as “how

are u,”and “whassup,” leading recipients to believe that the emails were personal messages, not

unsolicited commercial messages with links to an adult dating website (Dworak Decl. ¶ 20, Exhs.

D, E; Compl. ¶¶ 28–30; Suppl. Dworak Decl. ¶ 7, Exh. B). Plaintiff alleges that defendant sent

thousands of emails in a matter of days which amounted to a pattern or a practice violating 15

U.S.C. 7704(a)(2) (Dworak Decl. ¶ 12, 17–20, Exhs. D, E; Suppl. Dworak Decl. ¶ 4–5, 13, Exh.

B). Thus, plaintiff states a claim under 15 U.S.C. 7704(a)(2).

c. 17 U.S.C. 7704(a)(5) – Required Information.

15 U.S.C. § 7704(a)(5) requires that all commercial emails contain (1) clear and

conspicuous identification that the message is an advertisement or solicitation, (2) clear and

conspicuous notice of the opportunity to decline to receive further commercial electronic mail

messages, and (3) a valid physical postal address for the sender. 15 U.S.C. § 7704(a)(5)(A). 

Pursuant to 15 U.S.C. 7704(g)(1), internet access services must also prove that there’s a pattern or

practice that violates 15 U.S.C. 7704(a)(5). Plaintiff alleges that defendant’s emails contained

none of the required information (Dworak Decl. ¶ 20, Exhs. D, E; Compl. ¶ 65; Suppl. Dworak

Decl. ¶ 7, Exh. B). As already stated above, defendant’s thousands of email messages also

constituted “a pattern or a practice.” Accordingly, plaintiff has stated a claim for a violation of 15

U.S.C. 7704(a)(5).

iii. Claim 4: California Business and Professions Code Section 17529.5

Violations.

Many state laws contain analogues to the Federal CAN-SPAM Act, and California is no

exception. Under California law, “[i]t is unlawful for any person or entity to advertise in a

commercial e-mail advertisement either sent from California or sent to a California electronic

mail address” where “[t]he e-mail advertisement contains or is accompanied by falsified,

misrepresented, or forged header information” or “[t]he e-mail advertisement has 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.” 

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Cal. Bus. & Prof. Code §§ 17529.5(a)(2), (3). Plaintiff alleges that defendant violated these two

subsections by his actions.

Before proceeding, the issue of federal preemption must be addressed. This is because the

federal CAN-SPAM Act contains an express preemption clause, that states:

This chapter supersedes any statute, regulation, or rule of a State or political subdivision

of a State that expressly regulates the use of electronic mail to send commercial

messages, except to the extent that any such statute, regulation, or rule prohibits falsity

or deception in any portion of a commercial electronic mail message or information

attached thereto. This chapter shall not be construed to preempt the applicability of . . .

State laws to the extent that those laws relate to acts of fraud or computer crime. 

15 U.S.C. § 7707(b) (emphasis added). The Ninth Circuit recently interpreted this preemption

clause, concluding that “Congress’s intended purpose [was] to regulate commercial e-mail ‘on a

nationwide basis,’ 15 U.S.C. § 7701(b)(1), and to save from preemption only ‘statutes,

regulations, or rules that target fraud or deception,’ S.Rep. No. 108-102, at 21 (emphasis added).” 

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1061–1062 (9th. Cir. 2009).

With this precedent in mind, this order turns to the specific claims alleged.

a. California Business and Professions Code Section 17529.5(a)(2)

– Header Information.

Section 17529.5(a)(2) prohibits email advertisement containing falsified, misrepresented,

or forged header information from or to a California email address. As stated above, defendant

Vogeler’s email messages were sent for commercial purposes, and contained falsified,

misrepresented, or forged header information and misled recipients as to the identity of the

sender. Additionally, plaintiff’s servers, which house all of Tagged’s electronic user accounts

and information, are located in California (Dworak Decl. ¶ 4). Thus, each time a Tagged user

logs onto Tagged.com to review, send, or reply to a message, the user accesses a server located in

California (id. ¶ 29; Compl. ¶ 75). Accordingly, plaintiff has stated a claim under Section

17529.5(a)(2). 

b. California Business and Professions Code Section 17529.5(a)(3)

– Subject Line.

Section 17529.5(a)(3) prohibits email advertisement from or to a California email address

with a subject line that a person would be likely to mislead a recipient about a material fact

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“regarding the contents or subject matter of the message.” Cal. Bus. & Prof. Code §

17529.5(a)(3). As stated above, defendant Vogeler’s email messages were sent for commercial

purposes and contained a subject line that were likely to mislead recipients as to their actual

subject matter. Thus, plaintiff has stated a claim under Section 17529.5(a)(3).

iv. Claim 5: CFAA Violations.

In addition to setting forth particular acts warranting criminal punishment, CFAA

authorizes a civil cause of action, which states:

Any person who suffers damage or loss by reason of a violation of this section may

maintain a civil action against the violator to obtain compensatory damages and

injunctive relief or other equitable relief. A civil action for a violation of this section

may be brought only if the conduct involves 1 of the factors set forth in subclauses (I),

(II), (III), (IV), or (V) of subsection (c)(4)(A)(I). Damages for a violation involving only

conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages. No

action may be brought under this subsection unless such action is begun within 2 years of

the date of the act complained of or the date of the discovery of the damage. No action

may be brought under this subsection for the negligent design or manufacture of

computer hardware, computer software, or firmware.

18 U.S.C. § 1030(g). The five factors mentioned in subsection (c)(4)(A)(i) are:

(I) loss to 1 or more persons during any 1-year period (and, for purposes of an

investigation, prosecution, or other proceeding brought by the United States only, loss

resulting from a related course of conduct affecting 1 or more other protected computers)

aggregating at least $5,000 in value; 

(II) the modification or impairment, or potential modification or impairment, of the

medical examination, diagnosis, treatment, or care of 1 or more individuals; 

(III) physical injury to any person; 

(IV) a threat to public health or safety; 

(V) damage affecting a computer used by or for an entity of the United States

Government in furtherance of the administration of justice, national defense, or national

security; 

18 U.S.C. § 1030(c)(4)(A)(i). Finally, the terms “damage,” “loss,” and “person” are defined by

CFAA as follows:

(8) the term “damage” means any impairment to the integrity or availability of data, a

program, a system, or information;

. . . .

(11) the term “loss” means any reasonable cost to any victim, including the cost of

responding to an offense, conducting a damage assessment, and restoring the data,

program, system, or information to its condition prior to the offense, and any revenue

lost, cost incurred, or other consequential damages incurred because of interruption of

service; and 

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(12) the term “person” means any individual, firm, corporation, educational institution,

financial institution, governmental entity, or legal or other entity. 

18 U.S.C. § 1030(e). Here, plaintiff seeks default judgment on four separate violations of CFAA. 

They are analyzed in turn below.

a. 18 U.S.C. 1030(a)(4) – Unauthorized Access with Intent to

Defraud.

Section 1030(a)(4), in conjunction with subsection(g),

creates civil liability for whoever:

knowingly and with intent to defraud, accesses a protected computer without

authorization, or exceeds authorized access, and by means of such conduct furthers

the intended fraud and obtains anything of value, unless the object of the fraud and

the thing obtained consists only of the use of the computer and the value of such

use is not more than $5,000 in any 1-year period.

18 U.S.C. § 1030(a)(4). As already stated above, plaintiff alleges that defendant repeatedly

accessed Tagged’s computers and network after misrepresenting himself as a legitimate Tagged

user, created multiple accounts and used them to represent that the email messages were sent by

someone other than him (Compl. ¶ 33). Defendant misrepresented the true purpose of these email

messages (ibid.), and caused monetary damage of at least $5000 to Tagged (id. ¶¶ 82, 86). Thus,

plaintiff has stated a claim under 18 U.S.C. 1030(a)(4). 

b. 18 U.S.C. 1030(a)(5)(A) – Unauthorized Transmission.

Section 1030(a)(5)(A), in conjunction with subsection(g), creates civil liability for

whoever “knowingly causes the transmission of a program, information, code, or command, and

as a result of such conduct, intentionally causes damage without authorization, to a protected

computer.” 18 U.S.C. § 1030(a)(5)(A). Plaintiff alleges that defendant, by sending out his email

messages, knowingly caused the transmission of information and intentionally caused damage

without authorization to plaintiff (Dworak Decl. ¶ 26; Compl. ¶¶ 37, 46, 83; Suppl. Dworak Decl.

¶13). Thus, plaintiff has stated a claim under 18 U.S.C. 1030(a)(5)(A).

c. 18 U.S.C. 1030(a)(5)(B) – Reckless Unauthorized Access. 

Section 1030(a)(5)(B), in conjunction with subsection(g), creates civil liability for

whoever “intentionally accesses a protected computer without authorization, and as a result of

such conduct, recklessly causes damage.” 18 U.S.C. § 1030(a)(5)(B). Plaintiff alleges that

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defendant intentionally accessed Tagged’s network and computers to create multiple fraudulent

accounts without authorization and sent spam emails and recklessly caused damage to Tagged

(Compl. ¶¶ 46, 84). Thus, plaintiff has stated a claim under 18 U.S.C. 1030(a)(5)(B). 

d. 18 U.S.C. 1030(a)(5)(C) – Unauthorized Access. 

Section 1030(a)(5)(C), in conjunction with subsection(g), creates civil liability for

whoever “intentionally accesses a protected computer without authorization, and as a result of

such conduct, causes damage and loss.” 18 U.S.C. § 1030(a)(5)(C). Plaintiff alleges that

defendant intentionally accessed Tagged’s computers without authorization and caused damage to

Tagged (Compl. ¶¶ 46, 85). Plaintiff has stated a claim under 18 U.S.C. 1030(a)(5)(c). 

v. Claim 6: California Penal Code Section 502 Violations.

Just as California Business and Professions Code Section 17529.5 authorizes analogous

state actions to those available under the CAN-SPAM Act, California Penal Code Section 502

allows analogous state actions to those set forth in CFAA. Like CFAA, Section 502 authorizes

civil actions to be brought for otherwise criminal conduct. Specifically, “the owner or lessee of

the computer, computer system, computer network, computer program, or data who suffers

damage or loss by reason of a violation of any of the provisions of subdivision (c) [of Section

502] may bring a civil action against the violator for compensatory damages and injunctive relief

or other equitable relief.” Cal. Penal Code § 502(e)(1).

Plaintiff alleges four violations under subdivision (c) of Section 502.

a. California Penal Code Section 502(c)(1).

Section 502(c)(1) provides that:

Except as provided in subdivision (h), any person who commits any of the

following acts is guilty of a public offense: (1) Knowingly accesses and without

permission alters, damages, deletes, destroys, or otherwise uses any data,

computer, computer system, or computer network in order to either (A) devise or

execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully

control or obtain money, property, or data. 

Cal. Penal Code § 502(c)(1). Plaintiff alleges that defendant knowingly and without permission

accessed Tagged’s computers and network to carry out his spam campaign (Compl. ¶¶ 90–92). 

Plaintiff has stated a claim under Section 502(c)(1). 

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b. California Penal Code Section 502(c)(2).

Section 502(c)(2) creates criminal liability for whoever:

Knowingly accesses and without permission takes, copies, or makes use of any

data from a computer, computer system, or computer network, or takes or copies

any supporting documentation, whether existing or residing internal or external to

a computer, computer system, or computer network.

Cal. Penal Code § 502(c)(2). Plaintiff alleges that defendant knowingly and without permission

used Tagged’s computers and network (Compl. ¶¶ 90–91, 93). Plaintiff has stated a claim under

Section 502(c)(2). 

c. California Penal Code Section 502(c)(3).

Section 502 (c)(3) creates criminal liability for whoever “[k]nowingly and without

permission uses or causes to be used computer services.” Cal. Penal Code § 502(c)(3). Plaintiff

alleges that defendant knowingly and without permission used Tagged’s computers and network

(Compl. ¶¶ 90–91, 94). Plaintiff has stated a claim under Section 502(c)(3). 

d. California Penal Code Section 502(c)(7).

Section 502(c)(7) creates criminal liability for whoever: “[k]nowingly and without

permission accesses or causes to be accessed any computer, computer system, or computer

network.” Cal. Penal Code § 502(c)(7). Plaintiff alleges that defendant knowingly and without

permission accessed Tagged’s computers and network (Compl. ¶¶ 90–91, 95). Plaintiff has stated

a claim under Section 502(c)(7). 

B. Remaining Eitel Factors.

The remainder of the Eitel factors favor entering default judgment on these claims in favor

of plaintiff. If this motion is not granted, plaintiff will be left without a remedy or a means to

prevent defendant Vogeler from further violations. The large amount of money (nearly eight

million dollars) that plaintiff seeks disfavors default judgment. See Eitel, 782 F.2d at 1472

(stating that a three million dollar judgment at stake, considered in light of the parties’ dispute as

to material facts, supported the court’s decision not to enter default judgment). Defendant never

answered or otherwise responded to the complaint, so it is unclear whether there would be any

dispute over material facts. Defendant has refused to litigate this case. There is no evidence that

defendant’s failure to respond was the result of an excusable neglect. Although federal policy

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does favor a decision on the merits, FRCP 55(b) does allow entry of default judgment in

situations such as this, where the defendant has refused to litigate. On balance, the Eitel factors

weigh in favor of granting default judgment. 

III. DETERMINATION OF RELIEF.

Plaintiff seeks permanent injunction, statutory damages, liquidated damages, and

attorney’s fees and costs against defendant Vogeler.

A. Damages.

Courts may award the minimum damages authorized for violations of a statute without

conducting a default hearing. However, if the complaint seeks more than the statutory minimum,

plaintiffs are generally required to produce evidence supporting the damages sought.

i. CAN-SPAM Act.

A plaintiff may elect to recover monetary damages in an amount equal to the greater of

actual losses or statutory damages specified by the CAN-SPAM Act. See 15 U.S.C. § 7706(g)(1). 

Plaintiff elects to recover statutory damages here. CAN-SPAM Act statutory damages are

calculated as follows:

 (3) Statutory damages.

 (A) In general. For purposes of paragraph (1)(B)(ii), the amount determined

under this paragraph is the amount calculated by multiplying the number of

violations (with each separately addressed unlawful message that is

transmitted or attempted to be transmitted over the facilities of the provider

of Internet access service, or that is transmitted or attempted to be

transmitted to an electronic mail address obtained from the provider of

Internet access service in violation of section 5(b)(1)(A)(i) [15 USCS §

7704(b)(1)(A)(i)], treated as a separate violation) by–

 (i) up to $ 100, in the case of a violation of section 5(a)(1) [15

USCS § 7704(a)(1)]; or

 (ii) up to $ 25, in the case of any other violation of section 5 [15

USCS § 7704].

 (B) Limitation. For any violation of section 5 [15 USCS § 7704] (other than

section 5(a)(1) [15 USCS § 7704(a)(1)]), the amount determined under

subparagraph (A) may not exceed $ 1,000,000.

 (C) Aggravated damages. The court may increase a damage award to an

amount equal to not more than three times the amount otherwise available

under this paragraph if –

 (i) the court determines that the defendant committed the violation

willfully and knowingly; or

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Plaintiff cites to Kramer v. Cash Link Systems, 2004 WL 2952561 (S.D. Iowa) but this case did not

involve the statutory provisions relevant in this action, so the order will not address this case.

16

 (ii) the defendant's unlawful activity included one or more of the

aggravated violations set forth in section 5(b) [15 USCS § 7704(b)].

15 U.S.C. § 7706(g)(3). 

Plaintiff asserts that defendant initiated 6,079 illegal emails, and seeks the maximum

penalty of $100 per violation, resulting in an award of $607,900. Furthermore, plaintiff asserts

that defendant’s willful and intentional conduct is deserving of aggravated damages pursuant to

15 U.S.C. 7706(g)(3)(C). Plaintiff points out that defendant created several fraudulent accounts

on the same date and time, sometimes within mere seconds of each other, and that these accounts

were accessed from IP addresses with servers located all over the world, indicating that defendant

is in the business of sending commercial spam. Plaintiff seeks to treble the statutory damages to

$1,823,700.

It is true that defendant’s violations, from what plaintiff has alleged, were intentional and

willful, and statutory damage awards are justified to punish defendant and to deter future

violations. See Peer International Corp. v. Paisa Records Inc., 909 F.2d 1332, 1332 (9th Cir.

1990). That does not justify an award of nearly two million dollars under the CAN-SPAM Act to

plaintiff. A court has wide discretion to determine the amount of statutory damages between the

statutory maxima and minima. Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.

1984). In calculating statutory damage, some courts have looked to estimates of actual damages. 

Sara Lee Corp. v. Bags of New York, Inc., 36 F. Suppl. 2d 161, 170 (S.D.N.Y. 1999). Here,

plaintiff gives no estimates of actual damages to itself nor how much defendant profited from his

actions. Plaintiff cites to three other default judgment orders to supports its position that it is

entitled to nearly two million dollars in this instant action.2

 In Facebook v. Guerbuez, No. C08-

03889 (N.D.Cal. decided Nov. 21, 2008), Facebook was awarded $873 million against a

defendant who had sent four million spam emails to other Facebook users. In Myspace v.

Wallace, 2008 U.S. Dist. LEXIS 75752 (C.D.Cal. May 28, 2008), Myspace was awarded $223

million against a defendant who had sent nearly 400,000 messages and posted 890,000 comments

from 320,000 “hijacked” Myspace.com user accounts. 

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In contrast, in this instant action, defendant Vogeler sent 6,079 individual emails to 6,079

Tagged users. Accordingly, this order concludes that it is just to award statutory damages of $25

per violation, amounting to a total of $151,975. These damages along with permanent injunction

will adequately serve the purpose of punishment and deterrence. 

ii. California Business and Professions Code Section 17529.5.

Plaintiff also seeks to recover liquidated damages pursuant to California Business and

Professions Code Section 17529.5(b)(1)(B)(ii), which authorizes successful plaintiffs to recover

liquidated damages as follows:

(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.

Cal. Bus. & Pro. Code §17529.5(b)(1)(B)(ii). Plaintiff seeks to recover $1000 for each spam

email, for a total of $6,079,000. This order finds that an award of over six million dollars is not

proportionate to defendant Vogeler’s conduct and denies to award any liquidated damages to

plaintiff. Statutory damages of $151,975 granted under the CAN-SPAM Act and permanent

injunction against defendant Vogeler will be adequate. 

B. Permanent Injunction.

Plaintiff seeks permanent injunction against defendant Vogeler from further violations

pursuant to 18 U.S.C. 1030(g) and California Penal Code Section 502. Both statutory provisions

allow a plaintiff to obtain injunctive relief or other equitable relief for violation of respective

statutory provisions. 18 U.S.C. § 1030(g); Cal. Penal Code § 502(e)(1). Here, plaintiff has

sufficiently pled facts demonstrating that defendant acted illegally and caused damage to plaintiff. 

Defendant’s failure to appear in this action or respond to the allegations in the complaint give no

indication that he would stop his spamming activities in the future. Plaintiff alleges that when it

attempted to prevent spamming by limiting the number of messages a Tagged user can send out in

a day, defendant created multiple fraudulent Tagged accounts to circumvent plaintiff’s security

measures (Compl. ¶ 37). Defendant also deliberately implemented other tactics to circumvent

plaintiff’s security measures such as creating intermediary landing pages such as

www.uscoesdating.com and using IP addresses from other parts of the world (ibid.). Thus,

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plaintiff sufficiently has demonstrated a reasonable likelihood of defendant’s future violations. 

Plaintiff’s request for permanent injunction is granted. 

C. Attorney’s Fees and Costs.

Plaintiff seeks to recover $74,752.50 in attorney’s fees and litigation costs of $577.25. 

Reasonable attorney’s fees may be awarded under California Penal Code Section 502(e) and

reasonable attorney’s fees and costs may be recovered under California Business and Profession

Code Section 17529.5. 

Plaintiff’s counsel has filed a declaration describing the tasks they have performed in this

action, each individual’s billing rate, and the costs incurred due to this action (Hennessy Decl.). 

The amount of attorney’s fees and costs asked for by plaintiff seems high under the

circumstances. Accordingly, plaintiff will be granted $50,000 in attorney’s fees and costs. 

CONCLUSION

For the above reasons, plaintiff’s motion for default judgment, request for statutory and

liquidated damages, and permanent injunction is GRANTED-IN-PART. This order permanently

enjoins defendant Vogeler and his agents, servants, employees, attorneys, affiliates, distributors,

successors and assigns, and any other persons acting in concert or participation with them from:

1. Initiating, originating, procuring, transmitting, sending, or causing to be sent

commercial electronic messages or any other commercial communications on or

through Tagged’s computers, Tagged’s website, or Tagged’s networks;

2. Paying, inducing, persuading, facilitating, enticing, or causing others to initiate,

originate, procure, transmit, send, or cause to be sent commercial electronic

messages or any commercial communications on or through Tagged’s computers,

Tagged’s website, or Tagged’s networks;

3. Accessing or attempting to access Tagged’s website, networks, data, information,

user information, profiles, computers and/or computer systems for commercial

purposes;

4. Engaging in any activity that is intended to harm Tagged;

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5. Circumventing technological measures that control access to Tagged’s website

and/or portions thereof, or inducing, encouraging, causing or materially

contributing to any other person or entity to do the same; and

6. Misusing or abusing Tagged, the Tagged website, or Tagged services in any

manner.

Plaintiff has the responsibility to serve the injunction order in such a manner as to make it

operative in contempt proceedings. Plaintiff is awarded $151,975 in damages and $50,000 in

attorney’s fees and costs.

IT IS SO ORDERED.

Dated: January 25, 2010. 

WILLIAM ALSUP 

UNITED STATES DISTRICT JUDGE

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