Ferguson

I. Introduction

Mark Ferguson (Ferguson) sued respondents for violating California law by sending him unsolicited e-mail advertisements that were allegedly deceptive and misleading. The superior court sustained a demurrer without leave to amend with respect to each of Ferguson’s causes of action. In reaching its decision, the lower court found that section 17538.4 of the Business and Professions Code violates the dormant commerce clause of the United States Constitution.

In the published portion of this decision, we hold that section 17538.4 does not violate the dormant commerce clause. In the unpublished portion of this opinion, we conclude that the trial court erred by sustaining a demurrer without leave to amend as to each of Ferguson’s causes of action except for the cause of action in which he purported to state a negligence claim.

II. Statement of Facts

A. The Statute

Section 17538.4 regulates conduct by persons or entities doing business in California who transmit unsolicited advertising materials. Section 17538.4, which originally applied only to faxed documents, was amended in 1998 to extend to electronic mail (e-mail).

The statute defines “unsolicited…