Javier v. Assurance IQ, LLC

Background

Defendants Assurance IQ, LLC and ActiveProspect brought their fifth motion to dismiss Florentino Javier’s complaint. Javier asserted claims under California’s Invasion of Privacy Act, including a direct wiretapping claim. The dispute addressed whether California’s delayed-discovery rule postponed the one-year statute of limitations.

In an earlier order, the court held that Javier had constructive notice of Assurance’s privacy policy. That policy stated that Assurance could use third-party vendors to help monitor and analyze activity on its website. The court previously allowed Javier to amend his allegations about delayed discovery because it was not clear that the defect could not be cured.

Arguments and Analysis

Javier amended his complaint but argued that the amendments were sufficient. He contended that he had no reason to suspect ActiveProspect’s involvement until April 2020, when he first received a recording of his website visit. He also argued that the webform’s design did not adequately notify him of the privacy policy and that the policy did not disclose ActiveProspect’s alleged wiretapping.

The court rejected those arguments. It concluded that the privacy policy disclosed that Assurance and third-party vendors could use Javier’s information for purposes beyond providing an insurance quote, including monitoring and analyzing website activity. The court also concluded that the webform provided reasonably conspicuous notice of the policy and that clicking “View my Quote” indicated assent to it. Although Javier might not have known ActiveProspect’s identity or the full extent of the alleged recording, the court held that the policy gave him inquiry notice—a level of information that should have prompted a reasonable investigation of a possible wiretapping claim.

The court resolved the motion on the delayed-discovery issue alone and therefore did not decide the defendants’ separate argument that Javier’s communications were not intercepted “in transit.” The court also struck Javier’s new attorney-fee allegations because the prior order had allowed amendment only of his delayed-discovery allegations.

Disposition

The court granted Defendants’ motion to dismiss. Because Javier again failed to plead facts sufficient to invoke delayed discovery, the court dismissed his claims without leave to amend. The order was signed by Judge Charles R. Breyer.