I. INTRODUCTION

18 Plaintiff R.S. brings this putative class action against Defendant Prime 19 Healthcare Services, Inc. for an alleged violation of the Electronic Communications 20 Privacy Act (“ECPA”), 18 U.S.C. § 2511(1) et seq. (See Compl., ECF No. 1.) 21 Defendant now moves to dismiss this action under Federal Rule of Civil Procedure 22 (“Rule”) 12(b)(6). (Mot. Dismiss (“Mot.” or “Motion”), ECF No. 13.) For the 23 following reasons, the Court GRANTS Defendant’s Motion.1 24

II. BACKGROUND

25 Defendant Prime Healthcare is a healthcare company is a healthcare company 26 that operates forty-four hospitals in fourteen states, including California. (Compl. 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 ¶ 1); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that well-pleaded factual 2 allegations are accepted as true for purposes of a motion to dismiss). Prime 3 Healthcare also operates more than 300 outpatient locations and has nearly 4 45,000 employees and affiliated physicians. (Compl. ¶ 1.) 5 As part of the medical services it provides, Prime Healthcare owns, controls, 6 maintains websites for its hospitals, which include web-based patient portals. (Id. 7 ¶ 2.) Plaintiff R.S. alleges that, through its website, Prime Healthcare utilized tracking 8 “pixels” to collect client information and intentionally disclosed it to a third party for 9 pecuniary gain. (Id. ¶¶ 6–9.) The information disclosed to third parties—including 10 Meta Platforms, Inc. (“Meta” or “Facebook”)—allows the third parties to personally 11 identify the users for advertisement purposes. (See id. ¶¶ 9–12.) Specifically, R.S. 12 alleges that Prime Healthcare intercepted and disclosed the following private 13 information to Facebook: (1) “Plaintiff’s and Class Members’ status as medical 14 patients”; (2) “Plaintiff’s and Class Members’ communications with Defendant 15 through its Web Properties, including specific text queries typed into the search bar, 16 medical conditions for which they sought treatments and treatments sought”; 17 (3) “Plaintiff’s and Class Members’ searches for appointments, appointment details, 18 location of treatments, medical providers’ names and their specialties, medical 19 conditions, and treatments”; and (4) PII, including but not limited to patients’ 20 locations, IP addresses, device identifiers and an individual’s unique Facebook ID.” 21 (Id. ¶ 73.) 22 On February 8, 2024, R.S. filed this putative class action against Prime 23 Healthcare, asserting a single cause of action for violation of the ECPA on the basis 24 that Prime Healthcare “intentionally intercepted, endeavored to intercept, and/or 25 procured another person to intercept, the electronic communications of Plaintiff . . . , 26 in violation of 18 U.S.C. § 2511(1)(a).” (Id. ¶ 233; see also id. ¶¶ 223–54.) Under 27 Rule 12(b)(6), Defendant now moves to dismiss R.S.’s Complaint. 28 1 III. LEGAL STANDARD 2 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 3 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 4 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 5 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 6 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 7 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 8 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 9 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual 10 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 11 556 U.S. at 678 (internal quotation marks omitted). 12 The determination of whether a complaint satisfies the plausibility standard is a 13 “context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. at 679. A court is generally limited to the 15 pleadings and must construe all “factual allegations set forth in the complaint . . . ‘as 16 true and . . . in the light most favorable’” to the plaintiff. Lee v. City of Los Angeles, 17 250 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 18 1136, 1140 (9th Cir. 1996)). However, a court need not blindly accept conclusory 19 allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. 20 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 21 Where a district court grants a motion to dismiss, it should generally provide 22 leave to amend unless it is clear the complaint could not be saved by any amendment. 23 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 24 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 25 determines that the allegation of other facts consistent with the challenged pleading 26 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 27 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 28 1 denied . . . if amendment would be futile.” Carrico v. City and County of San 2 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). 3 IV. DISCUSSION 4 Prime Healthcare argues that R.S.’s ECPA claim fails because (1) Prime 5 Healthcare was a party to the communication that it allegedly unlawfully intercepted 6 and (2) the ECPA’s crime-tort exception does not apply. (Mot. 6–13.) In its 7 Opposition, although R.S. argues extensively why the ECPA’s crime-tort exception 8 should in fact apply, R.S. does not respond to Prime Healthcare’s argument that it 9 cannot unlawfully intercept a communication to which it is a party. Accordingly, 10 Plaintiff concedes this argument. See Muller v. Morongo Casino, Resort, & Spa, No. 11 5:14-cv-2308-VAP (KKx), 2015 WL 3824160, at *5 (C.D. Cal. June 17, 2015) 12 (concluding plaintiff’s failure to oppose an argument amounted to concession of that 13 argument); Heraldez v. Bayview Loan Servicing, LLC, No. 5:16-cv-1978-R (DTBx), 14 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016), aff’d, 719 F. App’x 663 (9th Cir. 15 2018) (“Failure to oppose constitutes a waiver or abandonment of the issue.”). 16 However, even if the Court were to consider the merits of Defendant’s 17 argument, the ECPA “contain[s] an exemption from liability for a person who is a 18 ‘party’ to the communication, whether acting under the color of law or not.” In re 19 Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 607 (9th Cir. 2020); see also In 20 re Google Inc. Cookie Placement Consumer Priv. Litig., 806 F.3d 125, 143 (3d Cir. 21 2015) (“[T]he intended recipient of a communication is necessarily one of its 22 parties.”). “[O]rdinarily, no cause of action will lie against a private person . . . 23 [‘]where one of the parties to the communication has given prior consent to such 24 interception.’” In re Google Inc., 806 F.3d at 135 (quoting 18 U.S.C. § 2511(2)(2)). 25 Courts across the country, including others in this District, agree that a hospital 26 is a party to the communication where it uses a pixel to track activity on its website. 27 See, e.g., B.K. v. Eisenhower Med. Ctr., No. 5:23-cv-2092-JGB (KKx), 2024 WL 28 878100, at *5 (C.D. Cal. Feb. 29, 2024) (“It is clear from Plaintiffs' Complaint that 1 || Defendant was a party to Plaintiffs’ Website communications.”); Williams vy. Dukehealth, No. 1:22-cv-727, 2024 WL 898051, at *8 (M.D.N.C. Mar. 1, 2024), 3 || report and recommendation adopted sub nom. Naugle v. Duke Univ. Health Sys., Inc., 4|| No. 1:22-cv-727, 2024 WL 1307216 (M.D.N.C. Mar. 27, 2024) (“Defendant was a 5 || party to the communications Plaintiff alleges it subsequently disseminated.” (citing 6] 18 U.S.C. § 2520(a), 2511(d))). 7 Here, as the party that “installed tracking technologies on its Web Properties,” 8 | (Compl. § 8), Prime Healthcare necessarily consented to the use of those pixels and 9 | the “interception” of the communications between R.S. and Prime Healthcare. See, 10 || e.g., Okash v. Essentia Health, No. CV 23-482 (JRT/LIB), 2024 WL 1285779, at *4 11 || (D. Minn. Mar. 26, 2024) (holding that Defendant’s “alleged interception was not 12 || unlawful because it was a party to the communication”). Accordingly, the Court 13 || dismisses R.S.’s ECPA claim and, because the Court finds that “the allegation of other 14 || facts consistent with the challenged pleading could not possibly cure the deficiency,” 15 || Schreiber Distrib., 806 F.2d at 1401, the dismissal is without leave to amend. 16 Vv. CONCLUSION 17 For the reasons discussed above, the Court GRANTS Defendant’s Motion to 18 | Dismiss WITHOUT LEAVE TO AMEND. (ECF No. 13.) The Clerk of the Court 19 || shall close this case. 20 21 IT IS SO ORDERED. 22 23 August 6, 2024 Be 24 Seri

OTIS D. GHT, II

7 UNITED STATRSI DISTRICT JUDGE

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