Filed 10/29/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

GREG ROSOLOWSKI et al.

Plaintiffs and Appellants,

v.

GUTHY-RENKER LLC,

Defendant and Respondent.

 B250951

 (Los Angeles County

 Super. Ct. No. BC499041)

APPEAL from a judgment of the Superior Court of Los Angeles County, William 

F. Highberger, Judge. Affirmed.

Law Offices of Morse Mehrban and Morse Mehrban for Plaintiffs and Appellants.

Young, Zinn & Bate, Harry A. Zinn, Stephanie M. Saito; Harrington, Ocko & 

Monk and John T.A. Rosenthal for Defendant and Respondent.

_________________________
2

Plaintiffs and appellants Greg Rosolowski et al. (collectively, Plaintiffs)1appeal 

a judgment of dismissal following an order sustaining a demurrer interposed by defendant 

and respondent Guthy-Renker LLC (Guthy) to Rosolowski’s first amended complaint 

without leave to amend.

The advent of electronic mail, or email, “has brought with it a flood of commercial 

advertising, some of it misleading, false, or deceptive, some even fraudulent, much of it 

unwanted. That in turn has given rise to federal and state legal initiatives intended to 

stem the flow of the unwanted, and especially the misleading, false, deceptive, and 

fraudulent e-mails, so-called anti-spam legislation.” (Beyond Systems, Inc. v. Kraft 

Foods, Inc. (2013) 972 F.Supp.2d 748, 751 (Beyond Systems).)

Here, the essential issue presented is whether Plaintiffs stated a cause of action for

violation of Business and Professions Code section 17529.5, 2on the theory that Guthy 

 

1

In addition to Greg Rosolowski, the plaintiffs and appellants are: Mark 

Rosolowski, Francisco Duarte, Herbert Henry, Shawn Monroe, Cindy Rodman, Jennifer 

Rodman, Miriah Rodman, Mary Ramirez, Blanca Ayala, Jose Estrada, Alfredo 

Garcia, Sr., Jimmy Jaramillo, Mark Lewis, Irelia Marquez, Luis Marquez, Heriberto 

Parada, Luis Alberto Perez, Victor Saucedo, Nina Zamora, Georgia Anderson, Erlinda 

Salonga, Michelle Balansag, Angel Estrada, Celia Ruiz, Alfredo Garcia, Jr., Amy 

Palomino, Shontae Dunn, Mark Bates, Brian Anderson, Rustom Aparente, Jr., Gwen 

Aparente, Nadine Balansag, Roxanne Balansag, Jeremy Balansag, Franz Balansag, 

Terresa Leslie, Shaun Leslie, Miguel Martinez, Jessica Lindsay, John Lindsay, Esperanza 

Matienzo, Michael Matienzo, Barbara Matienzo, Julie Westfall and Matt Boyster.

2 Business and Professions Code section 17529.5 states in relevant part at 

subdivision (a): “It is unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California electronic mail 

address under any of the following circumstances: [¶] (1) . . . [¶] (2) The e-mail 

advertisement contains or is accompanied by falsified, misrepresented, or forged header 

information. This paragraph does not apply to truthful information used by a third party 

who has been lawfully authorized by the advertiser to use that information. [¶] (3) The 

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.” (Italics added.) 

Unless otherwise specified, all further statutory references are to the Business and 

Professions Code.
3

sent them unsolicited commercial email advertisements purporting to be from “Proactiv 

Special Offer,” “Wen Hair Care,” “Proactiv Special Bonus Deal,” “Wen Healthy Hair,” 

“Wen by Chaz Dean,” “Proactiv Bonus Deal,” “Proactiv Bonus Gift,” and “Proactiv: 

Special Offer,” which are not names or registered fictitious business names of existing 

entities, and are not traceable to Guthy via a WHOIS database search.3

Plaintiffs also alleged the “subject” lines of the emails asserted the recipient was 

entitled to a free or complimentary gift, without mentioning the gift was contingent upon 

a purchase.

We conclude no cause of action was stated for violation of section 17529.5, 

subdivision (a)(2) (misrepresented header information) or subdivision (a)(3) (misleading 

subject line) and affirm the judgment of dismissal.

We hold a header line in a commercial email advertisement does not misrepresent 

the identity of the sender merely because it does not identify the official name of the 

entity which sent the email, or merely because it does not identify an entity whose 

domain name is traceable from an online database, provided the sender’s identity is 

readily ascertainable from the body of the email, as was the case here.

Further, the body of the emails made clear that free shipping or free gifts were 

contingent upon a purchase. As the trial court found, a reasonable sender would not have 

reason to believe that commercial missives like these were “likely to deceive a recipient, 

acting reasonably under the circumstances, about a material fact regarding the contents or 

subject matter of the message.” (§ 17529.5, subd. (a)(3).)

 

3 WHOIS “is a publically available online database through which users can access 

information regarding domains, including the registrant’s name, address, phone number, 

and e-mail address. See Definitions, Implementation, and Reporting Requirements 

Under the CAN–SPAM Act, 70 Fed.Reg. 25,426, 25,446 n.233 (proposed May 12, 2005) 

(to be codified at 16 C.F.R pt. 316). WHOIS data is compiled by registrars from 

information submitted by registrants.” (Gordon v. Virtumundo, Inc. (9th Cir. 2009) 

575 F.3d 1040, 1064, fn. 22 (Gordon).
4

FACTUAL AND PROCEDURAL BACKGROUND

1. Pleadings.

The gravamen of the allegations in the operative first amended complaint is that 

Guthy sent Plaintiffs unsolicited commercial email advertisements which, instead of 

identifying the sender as Guthy, indicated the sender was “Proactiv Special Offer,” “Wen 

Hair Care,” “Proactiv Special Bonus Deal,” “Wen Healthy Hair,” “Wen by Chaz Dean,” 

“Proactiv Bonus Deal,” “Proactiv Bonus Gift,” and “Proactiv: Special Offer,” which are 

not names or registered fictitious business names of existing entities, and are not 

traceable to Guthy via a WHOIS search. Further, the emails contained “subject” lines 

stating Plaintiffs were entitled “to a free or complimentary gift without mentioning that 

the gift was contingent upon a purchase.”

The first amended complaint was filed on behalf of lead plaintiff Greg Rosolowski 

and 45 individual co-plaintiffs, who collectively sought to be class representatives to 

represent a larger class. A number of the allegedly offending emails were attached as 

exhibits to the pleading. For example, Exhibit A included an email bearing the subject 

line “Exclusive WEN Deal: Complimentary Shipping, ” and it originated “From: Wen 

Hair Care (mavk@r.andedox.info).”

2. Demurrer.

Guthy demurred, contending Plaintiffs’ claims should be dismissed because they 

were preempted by federal law, specifically, the Controlling the Assault of Non-Solicited 

Pornography and Marketing Act of 2003 (15 U.S.C. § 7701 et seq.) (the CAN-SPAM 

Act), which preempts claims under section 17529.5, unless header or subject lines are 

materially false or misleading; the “from” lines contained famous brand names, identified 

with Guthy, the business entity whose name and address were set forth in the body of the 

same email; and the subject lines of the emails accurately referred to a “free” or 

“complimentary” gift and were not actionable.
5

3. Opposition to demurrer.

In opposition, Plaintiffs argued the emails violated section 17529.5, subdivision 

(a)(2), in that the names appearing on the “from” lines could not be traced to Guthy by 

way of an online database such as WHOIS, and also violated section 17529.5, 

subdivision (a)(3) because the subject lines represented the recipients were entitled to a 

free or complimentary gift, without mentioning such gift was contingent upon a purchase.

Plaintiffs further contended their claims were not preempted by the federal CANSPAM Act due to material deception (1) in the header line, which concealed the identity 

of the sender, namely Guthy, and (2) in the subject line, which enticed the recipients with 

the promise of free gifts, but the gifts came with strings attached.

4. Trial court’s ruling.

The trial court sustained Guthy’s demurrer to the first amended complaint without 

leave to amend, and set forth its rationale as follows:

The claims, as pled, set up theories that: (1) the email “header information” used 

by defendants was falsified, misrepresented, or forged within the meaning of section 

17529.5, subdivision (a)(2); and the “subject line” was one the sender “knows would be 

likely to deceive a recipient, acting reasonably under the circumstances, about a material 

fact regarding the contents or subject matter of the message” within the meaning of 

section 17529.5, subdivision (a)(3). Said claims could escape preemption by the federal 

CAN-SPAM Act if and only if, each such misrepresentation were material. (Hypertouch, 

Inc. v. Valueclick, Inc. (2011) 192 Cal.App.4th 805, 833 (Hypertouch).)

“Since the ‘Sender’ line does not identify defendant Guthy-Renker by name and 

instead uses the name of defendant’s various products, [Plaintiffs] collectively allege ‘its 

spams say they are coming from people and companies that don’t even exist.’ . . . This is 

akin to complaining that an email from ‘Buick’ is falsely labeled because, in [Plaintiffs’]

view, the sender should read ‘General Motors Corporation.’ The Court holds as a matter 

of law that this is not a material misrepresentation sufficient to overcome CAN-SPAM 

pre-emption. Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 345-347

[(Kleffman)].
6

“The various ‘Subject’ lines are criticized as ‘making affirmatively false material 

representations to the effect that the recipient is entitled to a free or complimentary 

gift.’ . . . . The email text which emerges if one clicks to open, show that ‘free shipping’

is offered for an email saying so in the Subject line, that free shipping and a tube of 

Proactiv Oil Free Moisture is offered for an email saying so in the Subject line, and that 

free shipping and two free gifts are offered when the Subject line says ‘Get 33% More 

with New Wen Hair Care System plus Two Free Gifts and Free Shipping.’ The same is 

true as to the others presented, and no email is so simple as to merely offer a ‘Free Gift’

with nothing further said. Despite plaintiffs’ protests that they were duped by these 

emails, the Court holds as a matter of law that a reasonable sender would not have reason 

to believe that commercial missives like these were ‘likely to deceive a recipient, acting 

reasonably under the circumstances, about a material fact regarding the contents or 

subject matter of the message.’ Thus, all of plaintiffs’ claims are subject to federal preemption under CAN-SPAM Act.”

In denying leave to amend, the trial court stated, “Plaintiffs have already put their 

cards on the table with the detailed pleading and the many emails attached thereto. A 

review of the theory of the case and the facts offered in support (as compared to the 

various matters pled as matters ‘for which Plaintiffs lack evidentiary support at the 

present time’ (First Amended Complaint ¶ 6 (alleged self-destructing emails), ¶ 7 

(alleged faked online consent from recipients), demonstrates that this is exactly the kind 

of case which the CAN-SPAM Act was intended to pre-empt to avoid vexatious litigation 

of no substantial social value. Congress has the power to pre-empt California consumer 

law, and it has done so here. Plaintiffs have failed to show that they come within the 

narrow exception to CAN-SPAM’s pre-emptive provisions. It is for this reason that this 

Court exercises its discretion to deny plaintiffs leave to amend. The theory of the case is 

manifest already and will not improve just by adding more prolixity and surmise to a 

pleading with more than enough already.”

Plaintiffs filed a timely notice of appeal from the judgment of dismissal.
7

CONTENTIONS

Plaintiffs contend the operative first amended complaint stated facts sufficient to 

state causes of action against Guthy for violations of section 17529.5, subdivision (a)(2) 

(misrepresented header information) and subdivision (a)(3) (misleading subject line), and 

the claims are not preempted by federal law.

DISCUSSION

1. Standard of appellate review.

In determining whether a plaintiff has properly stated a claim for relief, “our 

standard of review is clear: ‘ “We treat the demurrer as admitting all material facts 

properly pleaded, but not contentions, deductions or conclusions of fact or law. 

[Citation.] We also consider matters which may be judicially noticed.” [Citation.] 

Further, we give the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we determine whether 

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when 

it is sustained without leave to amend, we decide whether there is a reasonable possibility 

that the defect can be cured by amendment: if it can be, the trial court has abused its 

discretion and we reverse; if not, there has been no abuse of discretion and we affirm. 

[Citations.] The burden of proving such reasonable possibility is squarely on the 

plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 

italics added (Zelig).) Our review is de novo. (Ibid.)

2. Overview of section 17529.5 and the CAN–SPAM Act.

a. Section 17529.5.

In 2003, “the California Legislature passed Senate Bill 186, which imposed broad 

restrictions on advertising in unsolicited commercial e-mail advertisements sent from or 

to a computer within California. [Citation.] According to the Legislature’s ‘findings and 

declarations,’ the bill was adopted to address the ‘skyrocket[ing]’ costs and 

‘annoyance[s]’ associated with ‘spam,’ which the statute defines as ‘unsolicited 

commercial e-mail advertisements.’ [Citations.] The Legislature concluded that, to 

effectively regulate the abuses associated with spam, it was necessary to target not only 
8

the entities that send unsolicited commercial e-mail advertisements, but also the 

advertisers whose products and services are promoted in those e-mails.” (Hypertouch, 

supra, 192 Cal.App.4th at p. 818.)

Section 17529.5 prohibits certain deceptive practices in commercial email, which 

practices are enumerated in subdivision (a) as follows:

“(a) It 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 

under any of the following circumstances: [¶] (1) The e-mail advertisement contains or 

is accompanied by a third-party’s domain name without the permission of the third party. 

[¶] (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, 

or forged header information.[

4

] . . . [¶] (3) The 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.” (Italics added.)

Section 17529.5, subdivision (b), in turn, contains an enforcement provision that 

permits the “Attorney General,” “an electronic mail service provider” or a “recipient of 

an unsolicited commercial e-mail advertisement” to “bring an action against a person or 

entity that violates any provision of this section.” (§ 17529.5, subds. (b)(1)(A)(i)-(iii).)

Section 17529.5, subdivision (b) also lists the remedies available under the statute, 

which include “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 

 

4

 Kleffman observed, “California statutes do not define either the word ‘header’ or 

the phrase ‘header information.’ [However,] the federal CAN–SPAM Act, which makes 

it unlawful to initiate transmission of a commercial e-mail message that contains or is 

accompanied by ‘header information that is materially false or materially misleading’

(15 U.S.C. § 7704(a)(1)), defines ‘header information’ as ‘the source, destination, and 

routing information attached to an electronic mail message, including the originating 

domain name and originating electronic mail address, and any other information that 

appears in the line identifying, or purporting to identify, a person initiating the message’

(15 U.S.C. § 7702(8)).” (Kleffman, supra, 49 Cal.4th at p. 340, fn. 5.)
9

($1,000,000) per incident.” (§ 17529.5, subd. (b)(1)(B).) The statute further provides, 

however, that if the court finds the “defendant established and implemented, with due 

care, practices and procedures reasonably designed to effectively prevent unsolicited 

commercial e-mail advertisements that are in violation of this section, the court shall 

reduce the liquidated damages . . . to a maximum of one hundred dollars ($100) for each 

unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand 

dollars ($100,000) per incident.” (§ 17529.5, subd. (b)(2).)

b. The CAN–SPAM Act.

Shortly after California adopted S.B. 186, Congress enacted the CAN–SPAM Act,

which, like S.B. 186, was passed “ ‘in response to mounting concerns associated with the 

rapid growth of spam e-mails.’ [Citation.] The Act does ‘not ban spam outright, but 

rather provides a code of conduct to regulate commercial e-mail messaging practices. 

Stated in general terms, the CAN–SPAM Act prohibits such practices as transmitting 

messages with “deceptive subject headings” or “header information that is materially 

false or materially misleading.” [Citation.] The Act also imposes requirements regarding 

content, format, and labeling. For instance, unsolicited e-mail messages must include the 

sender’s physical postal address, indicate they are advertisements or solicitations, and 

notify recipients of their ability to decline further mailings. [Citation].’ [Citation.]” 

(Hypertouch, supra, 192 Cal.App.4th at p. 823.)

The CAN–SPAM Act “includes a provision that expressly preempts state statutes 

that regulate the use of commercial e-mail ‘except to the extent that any such 

statute . . . prohibits falsity or deception in any portion of a commercial [e-mail].’ 

(15 U.S.C., § 7707, subd. (b)(1).) The preemption clause reflects one of the primary 

goals of the CAN–SPAM Act: to regulate commercial electronic mail “on a nationwide 

basis.” (15 U.S.C., § 7701, subd. (b)(1).) As stated in the Congressional findings 

accompanying the Act, the federal statute was intended to ‘to implement “one national 

standard” [citation]’ regarding the content of commercial e-mail because ‘the patchwork 

of state laws had proven ineffective.’ [Citation.]” (Hypertouch, supra, 192 Cal.App.4th 

at p. 824.)
10

3. The Kleffman decision.

In Kleffman, the Supreme Court addressed “the scope of section 17529.5(a)(2), 

which makes it ‘unlawful . . . to advertise in a commercial e-mail advertisement’ that

‘contains or is accompanied by falsified, misrepresented, or forged header 

information.’ ” (Kleffman, supra, 49 Cal.4th at pp. 339-340, italics added.)

In Kleffman, as in the instant case, the plaintiff sued under section 17529.5(a)(2), 

alleging Vonage, by and through its marketing agents, sent him 11 unsolicited e-mail 

advertisements for its broadband telephone services using “ ‘11 different domain names: 

superhugeterm.com; formycompanysite.com; ursunrchcntr.com; urgrtquirkz.com; 

countryfolkgospel.com; lowdirectsme.com; yearnfrmore.com; openwrldkidz.com; 

ourgossipfrom.com; specialdlvrguide.com; and struggletailssite.com.’ These ‘11 

different domain names can [all] be traced to a single physical address’ in Nevada where 

Vonage’s marketing agent ‘is located.’ ‘None of these domain names provides any 

indication to the recipient (or its spam filter) that the advertisement is from Vonage.’ 

Vonage’s ‘use of these multiple domain names . . . reduces the likelihood that an internet 

service provider will identify these . . . advertisements as spam and block them before 

they reach the email inboxes of [plaintiff] and class members.’ ” (Kleffman, supra, 

49 Cal.4th at p. 338.)

The discrete issue addressed by the Supreme Court in Kleffman was whether

sending unsolicited commercial e-mail advertisements from multiple domain names for 

the purpose of bypassing spam filters constitute falsified, misrepresented, or forged 

header information within the meaning of section 17529.5, subdivision (a)(2). (Kleffman, 

supra, 49 Cal.4th at pp. 337, 339.) Kleffman concluded the use of multiple domain 

names for the purposes of bypassing spam filters does not violate the statute.

At the outset of its analysis, Kleffman noted there was no dispute the domain 

names used in the challenged emails “actually exist and are technically accurate, literally 
11

correct, and fully traceable to Vonage’s marketing agents,”5and the e-mails therefore 

“neither contained nor were accompanied by ‘falsified . . . or forged header information’ 

within the meaning of section 17529.5(a)(2).” (Kleffman, supra, 49 Cal.4th at p. 340, 

italics added.) The parties agreed the issue was whether the emails contained or were 

accompanied by “ ‘misrepresented . . . header information’ ” within the meaning of that 

subdivision. (Kleffman, supra, at p. 340, italics added.) The plaintiff argued the domain 

names, while not actually false, were “misrepresented” because their random, garbled, 

and nonsensical nature created a misleading or deceptive impression the emails were all 

from different entities when in fact they were all from Vonage via a single marketing 

agent. (Id. at pp. 341-342.)

Based on a close reading of the text and legislative history of the statutory 

language in issue, the Supreme Court rejected the plaintiff’s argument the word 

“misrepresented” in section 17529.5, subdivision (a)(2) means “ ‘misleading’ ” or “ 

‘likely to mislead.’ ” (Kleffman, supra, 49 Cal.4th at pp. 342-345.) The court found the 

Legislature did not intend subdivision (a)(2) “generally to prohibit the use of multiple 

domain names.” (Kleffman, supra, at p. 345.) Thus, as the plaintiff in Kleffman

conceded, the mere use of multiple domain names did not “ ‘in and of itself’ ” violate 

subdivision (a)(2). (Kleffman, supra, at p. 345.)

Kleffman further found the use of a domain name in a single e-mail that 

“does not make clear the identity of either the sender or the merchant-advertiser on 

whose behalf the e-mail advertisement is sent” is not prohibited by section 17529.5, 

subdivision (a)(2). (Kleffman, supra, 49 Cal.4th at p. 345.) Kleffman determined such 

use does not in fact make any representation, express or implied, regarding the email’s 

source. (Id. at pp. 345-346.) Kleffman also concluded that construing the statute 

otherwise would raise a substantial question with regard to federal preemption. 

(Kleffman, supra, at p. 346.)

 

5 We make the observation that a typical recipient of email would not attempt to 

search the WHOIS database for the sender’s identity before deciding whether to open up 

an email. Be that as it may, this court is not writing on a clean slate in this area.
12

While expressly declining to define the full scope of the statutory phrase 

“ ‘misrepresented . . . header information,’ ” Kleffman concluded: “[A] single e-mail with 

an accurate and traceable domain name neither contains nor is accompanied by 

‘misrepresented . . . header information’ within the meaning of section 17529.5(a)(2) 

merely because its domain name is . . . ‘random,’ ‘varied,’ ‘garbled,’ and ‘nonsensical’ 

when viewed in conjunction with domain names used in other e-mails. An e-mail with an 

accurate and traceable domain name makes no affirmative representation or statement of 

fact that is false . . . [and] . . . cannot reasonably be understood to be an implied assertion 

that the source of that e-mail is different from the source of another e-mail containing a 

different domain name.” (Kleffman, supra, 49 Cal.4th at pp. 346-347 & fn. 11.)

4. Irrespective of the allegedly untraceable domain names herein, the identity of 

the sender was readily ascertainable from the body of the emails; therefore, Plaintiffs 

failed to state a cause of action against Guthy for misrepresented header information 

under section 17529.5, subdivision (a)(2).

The instant case presents a different factual scenario than the one addressed by the 

Supreme Court in Kleffman in a critical respect. In Kleffman, it was undisputed “the 

domain names used to send Vonage’s e-mail advertisements, and reflected in the header 

information of these e-mail advertisements, actually exist and are technically accurate, 

literally correct, and fully traceable to Vonage’s marketing agents.” (Kleffman, supra, 

49 Cal.4th at p. 340.)

Here, in contrast, Guthy used domain names (“Proactiv Special Offer,” “Wen Hair 

Care,” “Proactiv Special Bonus Deal,” “Wen Healthy Hair,” “Wen by Chaz Dean,” 

“Proactiv Bonus Deal,” “Proactiv Bonus Gift,” and “Proactiv: Special Offer”) which 

were not traceable to Guthy. On demurrer, accepting these properly pleaded facts as true 

(Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173), Plaintiffs 

alleged said names “are not names of existing companies or persons, there are no such 

entities or persons, and no such entities or persons are registered as fictitious business 

names.” Further, the purported senders “were not the people or entities advertising in the 

emails. The domains from which these emails originated were not traceable to [Guthy]. 
13

A WHOIS search would not identify [Guthy] as the registrant of the domains from which 

the emails originated.”

The Kleffman court did not specify what is meant by a traceable domain name. 

It simply stated all 11 emails at issue could be “traced” to a single physical address in 

Nevada where Vonage’s marketing agent was located. (Kleffman, supra, 49 Cal.4th at 

p. 338.) There, it was undisputed “the domain names used to send Vonage’s e-mail 

advertisements, and reflected in the header information of these e-mail advertisements, 

actually exist[ed] and [were] technically accurate, literally correct, and fully traceable to 

Vonage’s marketing agents.” (Id. at p. 340.)

a. The Balsam decision.

Unlike Kleffman, where all of the domain names were accurate and traceable to 

the sender, in Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083 (Balsam), “the 

domain names were not traceable to the actual sender. The header information [was] 

‘falsified’ or ‘misrepresented’ because Trancos deliberately created it to prevent the 

recipient from identifying who actually sent the message. Thus, the nonsensical domain 

name ‘misstepoutcome.com’ neither disclose[d] Trancos’s name nor [could] it be linked 

to Trancos using any public database. While, as Kleffman states, an e-mail with an 

accurate and traceable domain name makes no affirmative representation or statement of 

fact that is false, an e-mail with a made-up and untraceable domain name affirmatively 

and falsely represents the sender has no connection to Trancos.” (Balsam, supra, 

203 Cal.App.4th at p. 1098, certain italics added.) Balsam concluded Kleffman should be 

“read . . . commonsensically . . . to mean that a domain name is ‘traceable’ to the sender 

if the recipient of an e-mail could ascertain the sender’s identity and physical address 

through the use of a publicly available database such as WHOIS.” (Balsam, supra, 203 

Cal.App.4th at p. 1098.) 

Balsam “express[ed] no judgment about other circumstances in which (1) header 

information might be falsified or misrepresented for purposes of the statute, or (2) the 

presence of other information identifying the sender in the body of the e-mail could affect 

liability under the statute.” (Balsam, supra, 203 Cal.App.4th at p. 1101, fn. 17, italics 
14

added; see Asis Internet Services v. Subscriberbase Inc., No. 09-3503 SC, 2010 WL 

1267763 (N.D.Cal. April 1, 2010) at p. 5 [“A finder of fact may therefore reasonably 

consider the body of an email or a hyperlinked page in determining whether 

misrepresentations in the subject lines were actually material”].)

b. Body of the emails was sufficient to enable recipient to identify Guthy as 

the sender.

Guided by the above, we turn to the facts of the instant case. Although the identity 

of the sender of the subject emails in the “from” line could not be ascertained through the 

use of a publicly available database such as WHOIS, the body of the emails was 

sufficient to enable the recipient to identify Guthy as the sender. The emails were

advertisements for Guthy’s various consumer brands. The emails provided a hyperlink to 

Guthy’s website, and provided an unsubscribe notice as well as a physical address in 

Palm Desert, California. Plaintiffs cannot plausibly allege that Guthy attempted to 

conceal its identify, as the clear purpose of emails was to drive traffic to Guthy’s website. 

The complaint concedes as much, in that it alleged if a “recipient clicks in an email’s 

body, a link takes him to [Guthy’s] website where he is encouraged to make a purchase.”

Giving section 17529.5(a)(2) a commonsense reading, as did the Balsam court, we 

conclude a header line does not misrepresent the identity of the sender merely because it 

does not identify the official name of the entity which sent the email, or merely because it 

does not identify an entity whose domain name is traceable via a database such as 

WHOIS, provided the sender’s identity is readily ascertainable from the body of email, as 

was the case here.

5. Plaintiffs failed to state a cause of action on the theory the emails contained 

misleading subject lines (§ 17529.5, subdivision (a)(3)).

As indicated, section 17529.5, subdivision (a)(3), makes it unlawful for a 

commercial email advertisement to contain “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.”
15

Plaintiffs alleged the subject lines in the various emails falsely represented that the 

recipients were entitled to a free or complimentary gift without mentioning that receipt of 

such a gift was contingent upon a purchase.

In sustaining the demurrer, the trial court ruled, “The email text which emerges if 

one clicks to open, show that ‘free shipping’ is offered for an email saying so in the 

Subject line, that free shipping and a tube of Proactiv Oil Free Moisture is offered for an 

email saying so in the Subject line, and that free shipping and two free gifts are offered 

when the Subject line says ‘Get 33% More with New Wen Hair Care System plus Two 

Free Gifts and Free Shipping.’ The same is true as to the others presented, and no email 

is so simple as to merely offer a ‘Free Gift’ with nothing further said. Despite plaintiffs’ 

protests that they were duped by these emails, the Court holds as a matter of law that a 

reasonable sender would not have reason to believe that commercial missives like these 

were ‘likely to deceive a recipient, acting reasonably under the circumstances, about a 

material fact regarding the contents or subject matter of the message.’ ”

Plaintiffs acknowledge the emails, in their entirety, are not misleading because the 

body of the emails “make clear that receipt of [Guthy’s] ‘free’ gifts is conditional upon a 

purchase.” Nonetheless, Plaintiffs’ theory is that the emails are actionable because 

liability under section 17529.5, subdivision (a)(3), turns upon whether the emails’ subject 

lines are misleading, not whether the emails are misleading in their entirety. The 

argument is unpersuasive.

Again, giving section 17529.5, subdivision (a)(3) a commonsense reading (see 

Balsam, supra, 203 Cal.App.4th at p. 1098), we conclude, as did the trial court, that the 

subject lines were not likely to mislead a recipient, acting reasonably under the 

circumstances, about a material fact regarding the contents or subject matter of the 

message. (§ 17529.5, subd. (a)(3).) The email advertisements plainly and conspicuously 

stated the conditional nature of the offer, so that an email recipient, acting reasonably 

under the circumstances, would not be misled about a material fact with respect to the 

nature of the offer of a free gift or free shipping. Therefore, a reasonable sender would 

not have reason to believe the subject lines were likely to mislead a recipient, acting 
16

reasonably under the circumstances, about a material fact regarding the contents or 

subject matter of the message. (Ibid.)

Plaintiffs contend the facts alleged in support of their assertion that Guthy violated 

section 17529.5, subdivision (a)(3), are nearly identical to those in Hypertouch, supra, 

192 Cal.App.4th 805. In Hypertouch, some of the subject lines “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)’.)” (Hypertouch, supra, 192 Cal.App.4th at p. 840.)

Hypertouch reasoned, “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 single survey), and the content of the e-mail reveals 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.” (Hypertouch, supra, 192 Cal.App.4th at p. 838.)

Unlike Hypertouch, we view an email’s subject line in conjunction with the body 

of the email, rather than in isolation. We conclude the subject lines’ offer of a free gift 

was not likely to mislead a recipient, acting reasonably under the circumstances, about a 

material fact (§ 17529.5, subd. (a)(3)), because the email advertisements made it clear 

that a free gift was conditional upon a purchase. Accordingly, Plaintiffs failed to state a 

cause of action under section 17529.5, subdivision (a)(3).
17

6. Issue of federal preemption not reached.

Because we conclude Plaintiffs failed to state sufficient facts to allege violation of 

section 17529.5, subdivision (a)(2) (misrepresented header information) or subdivision 

(a)(3) (misleading subject lines), it is unnecessary to address Guthy’s argument the CANSPAM Act preempts Plaintiffs’ claims. (See Martin v. PacificCare of California (2011) 

198 Cal.App.4th 1390, 1409 [“Because we conclude [Health & Safety Code] section 

1371.25 bars the Martins’ claims, we do not reach the question whether the Medicare Act 

preempts the Martins’ claims”].)

DISPOSITION

The judgment of dismissal is affirmed. Respondent shall recover their costs on 

appeal.

CERTIFIED FOR PUBLICATION

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.