Hypertouch, Inc. v. Valueclick, Inc.

*813 Opinion

INTRODUCTION

Appellant Hypertouch, Inc. (Appellant), filed an action alleging that ValueClick, Inc., various ValueClick subsidiaries and PrimaryAds, Inc. (Respondents), violated Business and Professions Code section 17529.5, subdivision (a), 1 which prohibits entities from advertising in a commercial electronic message (e-mail) that contains various types of deceptive content. Respondents moved for summary judgment, arguing that Appellant’s claims were preempted by the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (CAN-SPAM Act or Act; 15 U.S.C. § 7701 et seq.). Alternatively, Respondents argued that (1) Appellant had failed to establish a triable issue of fact as to whether Respondents had violated section 17529.5, and (2) any claim predicated on an e-mail received more than one year prior to the filing of the complaint was barred by the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (a).

The trial court granted summary judgment, ruling that the CAN-SPAM Act preempted Appellant’s section 17529.5 claims. Although the Act expressly exempts from preemption state laws prohibiting “falsity or…