Cline v. Reetz-Laiolo (329 F. Supp. 3d 1000, 2018)

William H. Orrick, United States District Judge

INTRODUCTION

This litigation is grist for its own novel. From 2009 through 2012, Emma Cline, author of the 2016 best-selling novel The Girls , was romantically involved with writer Chaz Reetz-Laiolo, who is 13 years her senior. She accuses him of domestic abuse and other terrible conduct during and after their relationship. And he accuses her of awful conduct, including stealing his work for her book and intruding into his email and bank accounts, and the email accounts of Kari Bernard, their mutual friend and former roommate, and Kristin Kiesel, a romantic partner of Reetz-Laiolo.

After a year of trying to settle their dispute out of court, the parties filed separate lawsuits, which were subsequently related. Cline, The Clegg Agency (her literary agent), and Penguin Random House LLC (publisher of The Girls ) bring claims for declaratory judgment of non-infringement and preemption of Reetz-Laiolo's conversion and civil theft claims. Cline also brings a claim for declaratory judgment on certain statutes of limitations. And she asserts claims for conversion, domestic violence, intentional infliction of emotional distress, and tortious interference with prospective economic advantage. He brings claims for copyright infringement, conversion, trespass to chattels, civil theft, and intentional or reckless infliction of emotional distress. Bernard and Kiesel join him in asserting claims under the Federal Stored Communications Act, Federal Wiretap Act, Computer Fraud and Abuse Act, California Invasion of Privacy Act, California Computer Crime Law, the California Constitution, and for intrusion upon seclusion. This order addresses the parties' motions to dismiss.

BACKGROUND

I. FACTUAL BACKGROUND

A. The Relationship and The Dispute

In June 2009, Cline was a 20-year-old college student when she met 33-year-old Reetz-Laiolo, a writer and lecturer at the Academy of Art University in San Francisco. Cline Compl. ¶¶ 55, 57 (Dkt. No. 1); Reetz-Laiolo Am. Compl. ¶¶ 32-35, 38 (Dkt. No. 38). Prior to that, Cline had published short stories in various publications, including Tin House , Post Road Magazine, and The Paris Review. Cline Compl. ¶ 57; Reetz-Laiolo Am. Compl. ¶ 37. Reetz-Laiolo had also published works in publications, including The Paris Review. Cline Compl. ¶ 28; Reetz-Laiolo Am. Compl. ¶ 30. The two soon became romantically involved; she thereafter withdrew from college and moved in with Reetz-Laiolo in December 2009. Cline Compl. ¶ 55; Reetz-Laiolo Am. Compl. ¶¶ 2, 38-39. Cline lived with Reetz-Laiolo in Berkeley until the fall of 2011, when she moved to New York to begin a Masters in Fine Arts program at Columbia University. Cline Compl. ¶¶ 55, 72; Reetz-Laiolo Am. Compl. ¶¶ 39, 41 The relationship continued off and on until February 2012, after which the two remained in contact. Cline Compl. ¶¶ 55, 77; Reetz-Laiolo Am. Compl. ¶¶ 42-43. They shared drafts of their writing both during and after the relationship ended. Cline Compl. ¶ 20, 28.

By September 2014, Cline had completed a draft of The Girls. Cline Compl. ¶ 20; Reetz-Laiolo Am. Compl. ¶¶ 159-60. She had repeatedly asked Reetz-Laiolo to read her drafts, "both because she wanted his input and so he would be aware that certain facts from his life and their shared life had been included." Cline Compl. ¶ 20; see Reetz-Laiolo Am. Compl. ¶ 163 (explaining that he initially declined to read the draft novel because "[h]e wished to avoid further emotional entanglement with her").

On October 3, 2014, Penguin Random House LLC ("Random House") bought the rights to publish The Girls for $2 million. Cline Compl. ¶ 22; Reetz-Laiolo Am. Compl. ¶ 161. Cline called Reetz-Laiolo shortly after to tell him her novel had sold. Cline Compl. ¶ 22. According to Reetz-Laiolo, Cline sent him a G-chat message on November 28, 2014, stating "i will be exposed as a plagiarizer ... paid 40 bucks to run novel through online plagiarism detector." Reetz-Laiolo Am. Compl. ¶ 162.

On February 24, 2015, he finally agreed to read the manuscript, but days later changed his mind and asked Cline to "send him any passages she thought might concern him[.]" Cline Compl. ¶ 29. But see Reetz-Laiolo Am. Compl. (indicating that Cline refused to send the manuscript and instead sent a document with excerpts). On March 3, 2015, she sent him "eight brief phrases and snippets from her draft novel, then 355-pages, that she thought he should know about." Cline Compl. ¶ 30; Reetz-Laiolo Am. Compl. ¶ 165; see also Reetz-Laiolo Am. Compl. ¶¶ 165-167.

On October 12, 2015, Reetz-Laiolo requested a draft of The Girls manuscript that was sold to Random House. Cline Compl. ¶ 31; Reetz-Laiolo Am. Compl. ¶¶ 168-170. Cline informed him that the earlier version had been edited and revised over the intervening months, but he demanded to see the version sold to Random House. Cline Compl. ¶ 32. On October 14, 2015, she sent him this version. Cline Compl. ¶ 32; see Reetz-Laiolo Am. Compl. ¶ 171 (noting that she sent a version of the manuscript "that she created that very same day[,]" and recognizing that certain sentences included in the previous chart had been removed from this version of the draft). On November 3, 2015, Reetz-Laiolo wrote to Cline, "I would not publish this novel if I were you. It is vile how much of my work you have plagiarized in it." Reetz-Laiolo Am. Compl. ¶ 172.

On January 15, 2016, Reetz-Laiolo sent Cline a demand letter, itemizing 36 instances of "infringement." Cline Compl. ¶ 35; Reetz-Laiolo ¶¶ 9, 177. Cline agreed to remove the identified snippets. Cline Compl. ¶ 38. Reetz-Laiolo later identified a draft screenplay entitled All Sea as the source of the material he claims was copied. Cline Compl. ¶ 41. Reetz-Laiolo had emailed her a copy of this draft screenplay under the file name "Fadein.doc" on September 4, 2011. Cline Compl. ¶ 41.

On June 14, 2016, The Girls was published in hardcover to widespread acclaim. Cline Compl. ¶ 43. It debuted at number three on The New York Times Hardcover Fiction Bestseller list, and remained on the list for 12 weeks. Id.

On February 21, 2017, Reetz-Laiolo's new (current) counsel sent Cline and Random House a demand letter setting forth two theories of copyright infringement. Cline Compl. ¶¶ 45-47. On February 22, 2017, the parties entered into a tolling agreement. See Reetz-Laiolo MTD at 5 (Dkt. No. 34). On March 30, 2017, Reetz-Laiolo's counsel followed up with a draft complaint (the "First Draft Complaint"). Cline Compl. ¶¶ 89-90.

On May 26, 2017, Reetz-Laiolo's counsel provided Cline with five separate drafts of All Sea , but later claimed that portions of the challenged passages originated from only one of the five drafts, dated June 17, 2013. Cline Compl. ¶ 50; see 6/17/13 All Sea Draft (Cline Compl., Ex. A). According to Cline, Reetz-Laiolo's counsel indicated that the remainder originated from two later drafts, dated December 26, 2013 and June 24, 2014, respectively. Cline Compl. ¶ 50; see 12/26/13 All Sea Draft (Cline Compl. Ex. B); 6/24/14 All Sea Draft (Cline Compl., Ex. C). These versions were provided to Cline and Random House for the first time on July 28, 2017. Cline Compl. ¶ 50.

B. The Works

1. Cline's The Girls

In 2008, Cline composed three short stories that "contained the conceptual seeds ... that would develop over the years into The Girls. " Cline Compl. ¶¶ 17, 18. Those seeds were "the close, formative relationship between adolescent girls, the setting of a Sonoma County commune in the 1960s, and the dark underbelly of violence reflected in the Manson Family story[.]" Id. ¶ 17. She also incorporated factual details from her life, including information she learned while dating Reetz-Laiolo. Id. ¶ 19. She completed a draft manuscript of The Girls in September 2014. Id. ¶ 20. That same month, Cline's literary agency (The Clegg Agency) sent the manuscript to publishers, and included the following description of the novel:

... Emma Cline returns us to the combustable [sic] summer of 1969 and drops us onto the sun-scorched sidewalks of Marin County behind the bored and troubled eyes of 14-year-old Evie. Stranded in the lonely gulf between recently divorced parents and filled with a desperate restlessness, Evie leans with obsessive abandon into an accidental friendship with an older and beguiling drifter named Suzanne. Wide-eyed and smitten, Evie is easily towed into the turbulent waters of a soon-to-be-infamous commune, quickly finding herself under the sway of a madman and closer than she knows to unthinkable violence. Emma Cline's story of how a rudderless girl finds herself at the flashpoint of a stumbling counter-culture at decade's end delivers a hauntingly precise investigation into how power is lost when we look to find it in others, how frighteningly mutable the unformed, inchoate self can be, and just how far that self will go to be seen and named.

Id. ¶ 21; see also Reetz-Laiolo Am. Compl. ¶ 160.

2. Reetz-Laiolo's Works

Reetz-Laiolo alleges that Cline stole "numerous narrative overlaps" from his All Sea manuscript. Reetz-Laiolo Am. Compl. ¶ 195. He focuses on "a sequence of scenes in which the protagonist, a teenager named Gabe, interacts with his single mother when she comes home with her boyfriend, commits burglary at the behest of a friend from whom he wants acceptance, and, after he is caught, is sent away to live with a father figure character named Ray." Reetz-Laiolo Am. Compl. ¶ 197.

He also includes several "phrase- and sentence-level instances of plagiarism in the original draft that Cline and Clegg submitted to Random House." Id. ¶ 199.

Reetz-Laiolo outlines scenes from All Sea -not included in "Fadein.doc"-that he suggests Cline incorporated into The Girls. Reetz-Laiolo Am. Compl. ¶ 198. According to him, Cline could only have obtained a copy of All Sea from her unauthorized intrusions into his Yahoo account. Id. ; see infra section I.D.2, His Version-The Spyware and The Coverup.

C. Her Version

1. The Infidelity

Cline indicates that Reetz-Laiolo was "habitually unfaithful" to her. Cline Compl. ¶ 60. Over the course of the relationship, Reetz-Laiolo's behavior turned violent and abusive. Id. He routinely read her email, text messages, Facebook messages, and personal journal. Id. ¶ 61. On at least two occasions, he emailed himself "the entirety of Cline's private journal." Id. ¶ 63. When she attempted to stand up for herself, he would threaten to humiliate her by revealing private facts to her family and friends. Id. ¶ 61.

In March 2010, she discovered that he had been sleeping with "Ms. K," his ex-girlfriend.

Id. ¶ 59. In the summer of 2010, Cline learned that Ms. K had informed Reetz-Laiolo months earlier that Ms. K had tested positive for a sexually transmitted disease, and "she had noticed him showing symptoms ... and urged him to tell Cline of her possible exposure." Id. ¶ 66. Reetz-Laiolo did not tell Cline; rather, he continued to have unprotected sex with her. Id. When Cline confronted him, he denied that he was still seeing Ms. K. Id. ¶ 67.

2. The Keylogger Software

In September 2010, "in an attempt to protect herself from Reetz-Laiolo's prying into her personal documents, the possibility of future sexual transmission of disease, and any other deceptions," Cline installed on her computer a free keylogger program from a company called "Refog." Cline Compl. ¶ 69. The keylogger program recorded keystrokes and collected screenshots on Cline's computer, including the two instances where Reetz-Laiolo emailed himself a copy of Cline's personal journal. Id. ¶¶ 69-70, 74.

In February 2011, Reetz-Laiolo promised to stop seeing other women, and Cline decided to uninstall the Refog software and stop accessing his email. Cline Compl. ¶ 71. On February 10, she told him that she had gained access to his email and that he should change his password. Id. In December 2011, as she was planning to return to Berkeley for winter break, Reetz-Laiolo told her that he had been suffering from symptoms associated with STDs. Id. ¶ 73. When she arrived in Berkeley, she downloaded on her computer a free three-day trial version of Refog's "Personal Monitor" software, which had enhanced functionality. Id.

In February 2012, Cline reviewed the activity captured by the Refog software and discovered that Reetz-Laiolo had stolen her personal journal. Id. ¶ 75. When she confronted him, he assured her he would delete the journal, but he still possesses it. Id. When he asked how she could have known about what he did, she explained the keylogger software to him. Id. The relationship ended soon after, but they remained in contact. Id. ¶¶ 76-77.

3. After the Break-Up

In July 2012, Cline visited Reetz-Laiolo in Berkeley while on summer break from Columbia. Cline Compl. ¶ 64. He looked through her text messages as she was sleeping, and became so incensed at what he perceived as flirtatious that he deleted the message, held her down on the bed and choked her so violently that she could not breathe. Id. When she said she would call the police, he again threatened to humiliate her by exposing highly personal information to family members. Id. He threw all of her possessions into the street. Id.

In December 2012, Reetz-Laiolo asked Cline to sell him her two-year-old laptop for $300, a fraction of its value, because he could not afford a new computer. Cline Compl. ¶ 77. Cline finally agreed, but indicated that she would wipe the hard drive first. Id. Reetz-Laiolo asked that she leave the computer's applications intact so that he could use her licensed copy of Microsoft Word without paying for a license for himself. Id.

In January 2013, Cline brought the computer to a tech professional to have all her personal files transferred to her new computer and deleted from the old one. Cline Compl. ¶ 78. Unbeknownst to her, the Refog software, "which she had accessed only three times in the preceding year[,]" along with all of the activity it had logged from September 2010 to February 2011 and from December 2011 until January 2013, remained on her computer when she sold it to Reetz-Laiolo. Id. ¶¶ 78-79. The records included private correspondence, journal entries, intimate web browsing history, and photographs. Id. ¶ 83. Cline has made repeated requests that Reetz-Laiolo "return to her the records of her personal computer activity, which do not belong to him." Id. ¶ 98.

4. After the Book Deal

On October 22, 2014, shortly after Cline had informed Reetz-Laiolo that Random House had purchased rights to The Girls , the two met for lunch in San Francisco. Cline Compl. ¶ 26. He responded that perhaps people would be interested in nude photographs of her given her newfound literary fame. Id. He also told her that he had been contacted by a magazine to write a tell-all article about her, and he planned to do it. Id. After he had reduced Cline to sobbing in public, he told her he was just joking. Id.

In February 2015, Reetz-Laiolo informed Cline that the Refog software and the associated data were still on the computer she had sold him. Cline Compl. ¶ 81. He asked her if she had been remotely accessing the computer, and she informed him she had no way of doing that. Id.

In October 2015, after Reetz-Laiolo read the outdated version of the manuscript, he accused Cline of "vile" plagiarism and told her "I wouldn't publish this book if I were you." Cline Compl. ¶ 33. Cline informed her literary agent Bill Clegg, and Clegg informed Cline's editor at Random House. Id.

As Reetz-Laiolo "began to realize the weakness of his copyright claims against Cline," he devised a plan to use the Refog records to exploit her and "extract a financial windfall from Cline and Random House through alternative means." Cline Compl. ¶¶ 84-85. Part of this plan included a theory that Cline accessed the computer remotely, even though Reetz-Laiolo knew that the Refog software did not provide that functionality. Id. ¶¶ 87-88. The "remote access theory" was necessary because any claims Reetz-Laiolo may have had based on Cline's use of the Refog software were time-barred. Id. The theory was eventually incorporated into the First Draft Complaint, as well as Reetz-Laiolo's complaint in this action. See infra section I.D.4, His Story-The Copying.

Reetz-Laiolo also included accusations that Cline had plagiarized other writers during her coursework in the MFA program at Columbia. Cline Compl. ¶ 91. He knew that "neither of these instances arose to anything illegal or improper on Cline's part[,]" but knew that the accusations would smear Cline's reputation at a pivotal point in her career. Id. ¶ 92.

In the First Draft Complaint, Reetz-Laiolo and his counsel included screenshots of Cline highlighting and copying erotic literature from the internet into a document, and alleged that these were a further example of Cline's "plagiarism." Cline Compl. ¶ 93. But the First Draft Complaint failed to identify any corresponding passages in Cline's work; rather, according to Cline, the allegations were only included to humiliate her. Id.

Months later, Reetz-Laiolo sent a revised draft complaint (the "May 26 Draft Complaint"), which "incorporated over ten pages of screenshots of Cline's most sexually explicit chat messages (along with the full names of individuals she chatted with, calculated to identify those most likely to have recognizable names), and records of intimate details of her sexual fantasy life." Cline Compl. ¶ 94; see also Cline Decl., Ex. A. It also threatened to expose her as the author of an erotic story she had posted online under a pseudonym, falsely accused her of being an "escort," and attempted to sexualize her platonic relationship with a benefactor, who it also named. Id. This information was included to bully Cline and her publisher into paying Reetz-Laiolo millions of dollars. Cline Compl. ¶ 94.

5. The Fall Out

Since this ordeal began, Cline has suffered substantial personal and professional injury, including physical symptoms such as significant weight loss and insomnia. Cline Compl. ¶ 100. She has been forced to seek medical and psychological care, and has been prescribed medication. Id. She has also had to cancel an international book tour, and numerous other public appearances, paid speaking engagements, residencies, and travel plans. Id. She has also had to pass on opportunities to sell or option the film rights to The Girls because she was "unwilling to subject a producing partner to these harassing claims, even as frivolous as they are." Id. She has also been unable to focus on creating new work. Id.

D. His Version

1. The Loving Relationship, The Roommate, and The Close Friend

Reetz-Laiolo describes the relationship as loving, although "not, from the beginning, a monogamous one on either party's behalf." Reetz-Laiolo Am. Compl. ¶ 38. Cline herself spoke of her affectionate relationship with Reetz-Laiolo in a published article. Reetz-Laiolo Am. Compl. ¶¶ 39-40. After the relationship ended in January 2012, "Cline continued to approach Reetz-Laiolo about getting back together." Id. ¶ 42. He continued to be invited to her family dinners and parties as late as the spring of 2015. Id. ¶ 43.

During the summer of 2010, plaintiff Kari Bernard sublet a room in Reetz-Laiolo's Berkeley apartment, while Cline was also living there. Reetz-Laiolo Am. Compl. ¶ 44. In September 2010, Cline's parents hired Bernard as a farm manager at the Green String Farm in Sonoma, where she worked until November 2016. Id. ¶ 45.

In August 2010, Cline and Reetz-Laiolo took a three-week trip to Italy to help Cline's parents decorate a villa they had purchased in Cortona. Id. ¶ 46. Bernard and another friend traveled with them for a brief time during this trip. Id. ¶ 47. While abroad, Bernard occasionally used Cline's computer with her knowledge and consent. Id. ¶ 48.

Plaintiff Kristin Kiesel was romantically involved with Reetz-Laiolo from 2007 through 2009. Reetz-Laiolo ¶ 51. After the relationship ended, they remained close friends, and were occasionally intimate. Id.

2. The Spyware and The Coverup

At some point prior to the 2010 trip to Italy, Cline installed the Refog software on her computer as part of "an elaborate and prolonged operation to secretly spy on [p]laintiffs." Reetz-Laiolo Am. Compl. ¶¶ 52, 56. The Refog software, marketed as a tool for parents concerned about their children's safety, describes the "Keylogger" program as follows:

Running unobtrusively and undetectable in the background of your PC, Refog Keylogger will store everything your kids, copy and paste on the computer, capture periodic snapshots of the computer's screen, log chats and social networking conversations and keep track of all Web resources and applications used on that PC.

Id. ¶ 54. Refog's website indicates that the legality of the Keylogger program "depends upon how it is being used[,]" and it "can be illegal if you are using it for criminal purposes such as stealing personal data and financial information." Id. ¶ 55.

Cline used the Keylogger program to capture passwords for various online accounts of Reetz-Laiolo, Bernard, and Kiesel, and used the passwords to "break into [those] accounts repeatedly over a period of years, without [plaintiffs'] knowledge or consent." Reetz-Laiolo Am. Compl. ¶¶ 57-58. Refog ran continuously on Cline's computer and "intercepted some of [p]laintiffs' emails, chat messages, bank account data, usernames, passwords and other sensitive information submitted and received through websites by taking screenshots of these electronic communications while they were in transit." Reetz-Laiolo Am. Compl. ¶ 60; see also id. ¶ 115-119 (describing and documenting Cline's access into Reetz-Laiolo's online Wells Fargo account).

Cline used the passwords to access the Reetz-Laiolo plaintiffs' online accounts after she and Reetz-Laiolo had separated, and years after she and Bernard ceased regular contact. Id. ¶ 71. She also "scoured through emails ... dating from many years before she had met them[,]" and "recorded ... some of [p]laintiffs' live communications-including chat messages, emails, and other data submitted and received through websites-contemporaneously with their transmission." Id. ; see also id. ¶ 82 (screenshot of email communication "contemporaneous[ ]" with its transmission); id. ¶¶ 83-86, 97-104 (describing Cline's process of keyword searches). She read thousands of emails in the Reetz-Laiolo plaintiffs' email accounts, and altered certain settings in Bernard's Gmail account. Id. ¶¶ 79-81, 87-91.

When Cline hacked into Bernard's and Kiesel's email accounts, she frequently used an online program called VTunnel, an IP address scrambler that conceals the origin of the computer used to log into accounts, so that they would not discover or trace her hacking. Id. ¶¶ 74-76. VTunnel's website describes it as:

a free proxy that acts as a middleman between your computer and the Internet. It is also a web proxy and an anonymous proxy. It is a web proxy that concentrates on facilitating your access to the World Wide Web. It acts as an anonymous proxy, which attempts to make all online activities untraceable. It hides your personal information so you can browse the web anonymously and access sites that are restricted to your network or area.

Id. ¶ 75. She rarely used the program when accessing Reetz-Laiolo's email accounts because they were living together and it was unnecessary for her to mask her location. Id. ¶ 78.

Cline's hacking of Bernard's and Kiesel's email accounts was not limited to their ties to Reetz-Laiolo; rather, she frequently reviewed communications that had nothing to do with him. Id. ¶¶ 106-09. She also looked at the "previews" of messages, without opening them. Id. ¶¶ 109-113. She accessed Kiesel's account through August 2012, and Bernard's account until January 2013, just days before she sold the computer to Reetz-Laiolo. Id. ¶¶ 79-80, 131.

Shortly before the sale, Cline researched an upgraded version of Refog's Keylogger program called the "Personal Monitor," which permits remote access to activity on a computer. Id. ¶ 138. At the time of the sale, Cline "intentionally" misrepresented that she had wiped the computer, but "in fact left Refog running on the computer." Id. ¶¶ 141-42.

In 2017, through the aid of computer forensic specialists, Reetz-Laiolo discovered that "Cline had remotely surveilled his computer activity during 2013-2015, through Refog Personal Monitor or other means." Reetz-Laiolo Am. Compl. ¶ 182.

3. The Discovery

In 2015, Reetz-Laiolo discovered the Refog software and "huge cache of screen-capture files" after he asked a friend who was a computer specialist to determine why the computer was running so slowly. Id. ¶¶ 145-47. In the years since, he has "pieced together much of the shocking extent of Cline's intrusion into his private life[.]" Id. ¶ 147. The discovery "had a profound and negative impact on his well-being[,]" and lead him to experience paranoia, panic attacks, and a severe sleeping disorder. Id. ¶¶ 149-50.

In March 2016, Reetz-Laiolo told Bernard, who was "stunned and upset" at the news, and later "was shocked and distressed" after viewing the screenshots and realizing the extent to which Cline had invaded her privacy. Id. ¶¶ 151, 153. In late 2016, Reetz-Laiolo told Kiesel, who was "stunned and upset[,]" and later "shocked and distressed to discover the magnitude of Cline's intrusion." Id. ¶¶ 154-55.

4. The Copying

The Refog software captured Cline searching for messages between Reetz-Laiolo and his editors, downloading drafts of his work, opening them using Google Docs, and keeping them on her computer to use in her own work. Id. ¶¶ 91-94. After this activity, she would delete her browsing history. Id. ¶ 96. The software also captured Cline's pattern of "cop[ying] significant portions of other authors' published works and incorporat[ing] these directly into written work she held out as her own." Id. ¶ 203; see id. ¶¶ 204-223 (providing several examples, including work submitted as part of Cline's thesis for her MFA program at Columbia).

Cline secretly accessed "Reetz-Laiolo's computer and email account to steal numerous distinctive passages and phrases, scenes and scenic elements, sentence structures, and other creative expressions from his published and unpublished written work." Id. ¶ 156. Her "most critical theft of his writing-three core, chronologically ordered scenes" in The Girls -took place by breaking into his email accounts "and/or remotely accessing his computer with the Refog spyware." Id. ; see also id. ¶ 187 (explaining that Cline could only have accessed versions of the script by breaking into his online accounts). A comparison of the works "reveals that Cline stole and copied material in at least two drafts of All Sea " Id. ¶ 197; see id. (illustrating examples of stolen scenes); id. ¶ 199 (illustrating examples of "phrase- and sentence-level instances of plagiarism"); Am. Compl., Ex. 6 (6/17/13 All Sea draft); Am. Compl., Ex. 7 (12/26/13 All Sea Draft).

In April 2016, counsel for Cline revealed to Reetz-Laiolo's counsel that Cline possessed a copy of Reetz-Laiolo's manuscript for All Sea , even though the manuscript "has never been published or made publicly available[, n]or has Reetz-Laiolo ever provided a copy of it to Cline." Id. ¶¶ 186-87.

5. Random House's Role

According to Reetz-Laiolo, Random House falsely represented that the eight snippets Cline sent to him in March 2015 were "added [to the draft manuscript] after the book was acquired and played no role in [Random House's] decision to buy the Book." Reetz-Laiolo Am. Compl. ¶¶ 173-75; see id. ¶ 175 (identifying where the snippets appeared in the original manuscript submitted to Random House). After Random House was put on notice that Cline possessed Reetz-Laiolo's manuscripts without his consent, it made no effort to return them; rather, it retained them and "conspired with Cline to conceal her and Random House's illegal conduct ...." Id. ¶¶ 189, 201-02.

Cline and Random House became concerned over negative publicity and pressured Reetz-Laiolo to enter a non-disclosure agreement. Id. ¶ 191. "As leverage, they threatened to make public certain facts about his sex life, and propagate a fiction about him being abusive, while making clear the financial resources they would enlist to fight any public claims he might make." Id. He declined to enter a nondisclosure agreement. Id. ¶ 192.

Random House proceeded to publish The Girls "with the crucial stolen scenes included." Id. ¶¶ 193-95.

II. PROCEDURAL HISTORY

On November 29, 2017, Cline, The Clegg Agency, and Random House filed a complaint against Reetz-Laiolo seeking declaratory relief, damages, and attorney's fees. ("Cline Compl.")(17-cv-6866, Dkt. No. 1). Counts I through III of the Complaint seek declaratory judgments that The Girls does not infringe any work by Reetz-Laiolo, that his claims for conversion and civil theft of his work are preempted, and that any claims by Reetz-Laiolo related to Cline's use of the Refog software and access to his email are time-barred. Cline Compl. ¶¶ 103-131. Cline is the only plaintiff in Counts IV through VII, which allege conversion, domestic violence pursuant to Cal. Civ. Code § 1708.6, intentional or reckless infliction of emotional distress, and tortious interference with prospective economic advantage. Id. ¶¶ 132-148.

The same day, Reetz-Laiolo, Kari Bernard, and Kristin Kiesel filed a complaint against Cline, Random House, and Scott Rudin Productions, Inc. (17-cv-6867, Dkt. No. 1).

On December 13, 2017, the cases were related (17-cv-6866, Dkt. No. 15; 17-cv-6867, Dkt. No. 7), and on December 15, 2017, they were assigned to me (17-cv-6866, Dkt. No. 20; 17-cv-6867, Dkt. No. 12). On December 22, 2017, Reetz-Laiolo filed a notice of voluntary dismissal, dismissing all claims against Scott Rudin Productions, Inc. (17-cv-6867, Dkt. No. 24). On January 29, 2018, Cline and Random House filed a motion to dismiss (17-cv-6867, Dkt. No. 33) and on February 5, 2018, Reetz-Laiolo filed his motion to dismiss counts IV through VII of Cline's complaint, as well as her claim for attorneys' fees. Def.'s Mot. to Dismiss ("Reetz-Laiolo MTD")(17-cv-6866, Dkt. No. 34).

On February 20, 2018, Reetz-Laiolo, Kiesel, and Bernard filed an amended complaint, thereby mooting the motion to dismiss filed by Cline and Random House. ("Reetz-Laiolo Am. Compl.")( 17-cv-6867, Dkt. No. 38). Their amended complaint brings claims for (1) violation of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq. , (2) violation of the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., (3) violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 et seq., (4) violation of the California Invasion of Privacy Act ("CIPA"), Cal. Penal Code § 630 et seq., (5) violation of the California Computer Crime Law, Cal. Penal Code § 502, (6) invasion of the right to privacy embodied in the California Constitution, Article I, Section 1, (7) intrusion upon seclusion, (8) copyright infringement under 17 U.S.C. §§ 106(3), 501(a) for distribution of The Girls manuscript, (9) copyright infringement under 17 U.S.C. §§ 106(3), 501(a) for publication and distribution of The Girls, (10) conversion, (11) trespass to chattels, (12) civil theft, and (13) intentional or reckless infliction of emotional distress.

On March 5, 2018, Cline and Random House filed a motion to dismiss the amended complaint. Mot. to Dismiss Pls.' Am. Compl. ("Cline MTD")(17-cv-6867, Dkt. No. 46).

On April 11, 2018, I heard arguments on both motions to dismiss.

On April 23, 2018, Reetz-Laiolo, Bernard, and Kiesel filed a motion for leave to file a second amended complaint to add claims stemming from communications related to litigation and settlement based on my tentative ruling at the hearing that the litigation privilege would not bar such claims in this case. Mot. for Leave to Amend (17-6867, Dkt. No. 68). The potential application of the statutes of limitations and Cline's and Random House's refusal to enter a tolling agreement compelled them to file the motion prior to my resolution of the motions to dismiss. Id. at 1. But they indicated that they "are amenable to holding the resolution of this Motion in abeyance pending the Court's rulings on those pending motions, and to filing a further amended complaint that takes account of those rulings, for overall efficiency." Id.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." See Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles , 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." See In re Gilead Scis. Sec. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008).

If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." See Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." See Moore v. Kayport Package Express , 885 F.2d 531, 538 (9th Cir. 1989).

DISCUSSION

I. HIS MOTION

Reetz-Laiolo argues that Cline's claim for conversion is untimely, plus she has no legal interest in the Refog records she claims Reetz-Laiolo converted. Reetz-Laiolo MTD at 1. He argues that her claims for domestic violence, intentional infliction of emotional distress, and tortious interference constitute a Strategic Lawsuit Against Public Participation (SLAPP) because they are based on litigation-related activity and thus are shielded from liability by the U.S. Constitution and by statute. Id. at 2. Lastly, he contends that her demand for attorneys' fees fails as a matter of law because it must be based on her domestic-violence claim, which fails. Id.

A. Conversion Claim

A cause of action for conversion requires: "(1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages." Fremont Indem. Co. v. Fremont Gen. Corp. , 148 Cal. App. 4th 97, 119, 55 Cal.Rptr.3d 621 (2007). California's statute of limitations for conversion claims is three years. Cal. Civ. Proc. Code § 338(c). Cline bases her conversion claim on allegations that Reetz-Laiolo obtained copies and remains in possession of the Refog records and her personal journal without her consent. Cline Compl. ¶¶ 132-37.

1. Whether the Claim is Timely

Cline alleges that "on February 5, 2012, [she] reviewed the activity captured by the Refog software and discovered Reetz-Laiolo's theft of her journal." Id. ¶ 75. In January 2013, she sold the computer to Reetz-Laiolo, thereby marking the date he took possession of the Refog records. See Cline Compl. ¶¶ 132-137. From these allegations, Reetz-Laiolo argues that Cline's conversion claim must be dismissed as untimely because more than three years have passed since she learned of the alleged "conversions." Reetz-Laiolo MTD at 5-7.

a. Refog Records

Cline argues that her conversion claim based on the Refog records is timely because the claim is based on a lawful taking, in which case the statute of limitations began to run when she demanded return of the property and Reetz-Laiolo refused to return it. Opp'n at 9-10. She reaches this conclusion by urging that Reetz-Laiolo was merely "entrusted" with the Refog records through an involuntary bailment or constructive trust. Id. at 10.

An involuntary bailment or "deposit" is made "[b]y the accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner." Cal. Civ. Code § 1815 ; see also Hillhouse v. Wolf , 166 Cal. App. 2d Supp. 833, 835, 333 P.2d 454 (Cal. App. Ct. 1958) ("The facts of this case clearly show the defendant to have been an involuntary bailee of the sulphuring machine, the machine having been accidentally left in his possession by the plaintiff."). The Hillhouse court found that the cause of action for conversion began to accrue when the defendant used the machine, not when the defendant refused plaintiff's demand to return the machine. 166 Cal. App. 2d Supp. at 835, 333 P.2d 454. Reetz-Laiolo contends that Cline could not have created an involuntary bailment because she was negligent in leaving the records on the computer. Reply at 4; see Cal. Civ. Code § 1815 (creation of involuntary deposit contingent on owner acting "without negligence"). I agree. She took the computer to a tech professional to transfer "all her documents, photographs and other information" to her new computer and removed from her old computer, but left the applications on her computer per Reetz-Laiolo's request. Cline Compl. ¶ 78. But she allegedly forgot about the Refog software and the secret cache of screenshots. Id. This behavior fails to plausibly plead the non-negligence required to establish an involuntary bailment.

Cline's argument on constructive trust fares better. A constructive trust "is not an independent cause of action but merely a type of remedy for some categories of underlying wrong[,]" and "is subject to the statute of limitations governing the nature of the underlying wrong." Glue-Fold, Inc. v. Slautterback Corp. , 82 Cal. App. 4th 1018, 1023 n.3, 98 Cal.Rptr.2d 661 (2000) ; see also Cal. Civ. Code § 2224 ("One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it."). When a defendant obtains property by fraud or mistake, the fraud statute ( Cal. Civ. Proc. Code § 338(d) ) provides the appropriate limitations period. 3 Witkin, Cal. Proc. (5th ed. 2008), Actions § 680. The civil code provides that a cause of action on the ground of fraud or mistake "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Cal. Civ. Proc. Code § 338(d).

Under a constructive trust theory, Cline's cause of action for conversion based on mistake began to accrue in February 2015, when Reetz-Laiolo told her the software and records remained on the computer. See Cline Compl. ¶¶ 79-81. Since the three year statute-of-limitations began to run in February 2015, her conversion claim based on the Refog records is timely.

b. Personal Journal

Cline contends that her conversion claim based on her personal journal was tolled because Reetz-Laiolo falsely represented that he would delete his copy of the journal. Cline Compl. ¶ 75.

"A statute of limitations may be tolled if the defendant fraudulently concealed the existence of a cause of action in such a way that the plaintiff, acting as a reasonable person, did not know of its existence." Hexcel Corp. v. Ineos Polymers, Inc. , 681 F.3d 1055, 1060 (9th Cir. 2012). "[Plaintiff] carries the burden of pleading and proving fraudulent concealment; [she] must plead facts showing that [defendant] affirmatively misled [her], and that [she] had neither actual nor constructive knowledge of the facts giving rise to [her] claim despite [her] diligence in trying to uncover those facts." Conmar Corp. v. Mitsui & Co. (U.S.A.) , 858 F.2d 499, 502 (9th Cir. 1988). In addition, "[c]onclusory statements are not enough." Id. Rather, Cline "must plead with particularity the circumstances of the concealment and the facts supporting [her] due diligence." Id.

As Reetz-Laiolo highlights, Cline only alleges that he "did not delete her journal and he now continues to unlawfully possess it." Cline Compl. ¶ 75. Even if I accept Cline's allegation that in 2012 Reetz-Laiolo told her he would delete the journal and she has thus demonstrated that he "affirmatively misled" her, she has not included any allegations of her diligence to uncover the misrepresentation. See Conmar , 858 F.2d at 502. In other words, she was at least on inquiry notice of her claim as of 2012, after which, she was "under a duty to reasonably investigate, and a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, commences the limitations period." New Amsterdam Project Mgmt. Humanitarian Found. v. Laughrin , No. C 07-935 JF (HRL), 2009 WL 1513390, at *3 (N.D. Cal. May 29, 2009) (quoting another source).

In the absence of these allegations, her conversion claim based on her personal diary is untimely. I will give her leave to amend.

2. Whether Cline has a Protectable Interest in the Refog Records

Reetz-Laiolo argues that Cline has not alleged that she retained any "property right" in the computer after she sold it, nor has she established a "right to possession" of the screenshots containing images of private information belonging to others. Reetz-Laiolo MTD at 7-8. It is clear from Cline's allegations that the Refog records were not a part of the bargained for agreement when she sold the computer to Reetz-Laiolo. See Cline Compl. ¶¶ 77-79. She has thus established a property right in the records under a constructive trust theory as discussed above.

As for her right to possess the records containing the private information of others, Cline emphasizes that her claim is based on her right to the records of her own activity on her personal computer. Opp'n at 13; see Cline Compl. ¶ 133. Reetz-Laiolo interprets this as an admission "that she does not have a legal 'right to possession' of those Refog screenshots which contain deeply sensitive and private information belonging to others that she possessed only in violation of law." Reply at 7. I am not as convinced as Reetz-Laiolo that Cline's representation means that she is not claiming a right to the private information belonging to others. While she may not claim a right to the records logging the activity of others on her laptop, from which she gathered the information necessary to subsequently log into their accounts, any ensuing activity by her still seems to fall within her claim.

Regardless of what her representation means for the scope of her claim, Reetz-Laiolo maintains that she has no right to possession because (1) she relinquished any rights when she sold the computer, (2) even if she did not relinquish rights with the sale, she effectively abandoned them by claiming she intended to destroy them, and (3) she cannot be entitled to the return of screenshots of her illegal behavior and the private information belonging to others. Reply at 7. He further urges that it would be impractical to undergo a massive document review to determine who was using the computer when each screenshot was captured, and then isolate those screenshots over which Cline may have a legitimate interest, which will further exacerbate the intrusions into the privacy of others. Id. at 7-8. Reetz-Laiolo's arguments may prove meritorious down the line, but he has not convinced me that they impact Cline's ability to state a claim for conversion based on the Refog records of her own computer activity that she unknowingly left on her computer.

Reetz-Laiolo's motion to dismiss the conversion claim is DENIED.

B. Claims for Domestic Violence, Intentional Infliction of Emotional Distress, and Tortious Interference

Reetz-Laiolo contends that Cline's claims for domestic violence, intentional infliction of emotional distress, and tortious interference with prospective economic advantage are each based on his pre-suit litigation related activities, including correspondence related to settlement negotiations, and are therefore barred by California's Anti-SLAPP and protected by the litigation privilege. Reetz-Laiolo MTD at 8-14.

1. Whether Claims Constitute Strategic Lawsuit Against Public Participation (SLAPP)

a. Choice-of-Law Analysis

California applies the three-step governmental interest analysis in resolving choice-of-law issues. Kearney v. Salomon Smith Barney, Inc. , 39 Cal. 4th 95, 107, 45 Cal.Rptr.3d 730, 137 P.3d 914 (2006).

First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law "to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state" [citation], and then ultimately applies "the law of the state whose interest would be the more impaired if its law were not applied."

Id. at 107-08, 45 Cal.Rptr.3d 730, 137 P.3d 914.

The parties agree that the anti-SLAPP laws of California and New York differ. Opp'n at 14; Reply at 8-9. California's anti-SLAPP generally protects prelitigation conduct, whereas New York's anti-SLAPP does not. Compare Flatley v. Mauro , 39 Cal. 4th 299, 322 n.11, 46 Cal.Rptr.3d 606, 139 P.3d 2 (2006) (rejecting plaintiff's assertion that "prelitigation conduct does not fall within the ambit of section 425.16."), with Gilman v. Spitzer , 902 F.Supp.2d 389, 398 (S.D.N.Y. 2012), aff'd , 538 Fed.Appx. 45 (2d Cir. 2013) ("[F]or an anti-SLAPP claim to exist under New York law: '1) there must be a public application or petition ....' ").

Cline asserts that New York's interest in applying its law to these claims is "decidedly greater" because: "(1) Cline is a resident of New York; (2) all of the conduct relevant to the anti-SLAPP issue-communications by Reetz-Laiolo's New York-based lawyers with Cline's New York based lawyers-occurred in New York; and (3) Cline's injuries from that conduct occurred in New York, including her physical and emotional harm, financial injury, and damage to her existing business relationships with multiple third parties based in New York, including her publisher, agent, and the purchaser of the option for film rights to The Girls. " Opp'n at 15.

Reetz-Laiolo responds that Cline has not provided a compelling reason to displace California law. To the contrary, he argues, the most important factor is the residence of the defendant because California's anti-SLAPP is designed to protect the first amendment rights of its residents. See Competitive Techs. v. Fujitsu Ltd. , 286 F.Supp.2d 1118, 1159 (N.D. Cal. 2003) (concluding that California had no governmental interest in having its law applied "because it is the plaintiffs rather than the defendants who reside in California."). Another factor is that this litigation was filed in California, not New York; Cline insists that is "irrelevant to the choice-of-law analysis." Opp'n at 15 n.6.

That said, "New York has a compelling interest in policing tortious conduct committed in New York, by a New York attorney, with reference to future or pending litigation in New York." Block v. First Blood Assocs. , 691 F.Supp. 685, 697 (S.D.N.Y. 1988). Even though Cline's suit was filed in California against a California speaker, Cline has offered compelling reasons to displace California's anti-SLAPP regime-the acts underlying her claims and the resulting harm largely occurred in New York. Since New York's anti-SLAPP does not apply to prelitigation conduct, see Gilman , 902 F.Supp.2d at 398, Reetz-Laiolo's motion to strike these claims on this ground is DENIED.

2. Whether the Litigation Privilege Provides Absolute Immunity

Cline argues that state law privileges do not apply in federal question cases where the evidence relates to both federal and state claims, citing several Ninth Circuit decisions. Opp'n at 20. But those cases are not on point. In two cases, the court addressed the admissibility or production of evidence. See In re TFT-LCD (Flat Panel) Antitrust Litig. , 835 F.3d 1155, 1159 (9th Cir. 2016) (concluding that federal privilege law, rather than California Evidence Code, governed admissibility of emails exchanged in settlement negotiations); Agster v. Maricopa Cty. , 422 F.3d 836, 837 (9th Cir. 2005) (rejecting County's attempt to invoke state law privilege to preclude the production of a mortality review conducted by Correctional Health Services, concluding that federal privilege law applies when there are federal question claims and pendent state law claims). And in the third, the court rejected the applicability of the litigation privilege as a defense to a claim of copyright infringement. See Religious Tech. Ctr. v. Wollersheim , 971 F.2d 364, 368 (9th Cir. 1992) (citing Federal Rule of Evidence 501 for the proposition that "federal courts will recognize state privileges only in cases in which '[s]tate law supplies the rule of decision.' ").

Reetz-Laiolo raises the litigation privilege as a complete bar to Cline's state law claims. Under such circumstances, federal courts apply state law. See Fed. R. Evid. 501 ("But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.); Kearney v. Foley & Lardner, LLP , 590 F.3d 638, 650 (9th Cir. 2009) (affirming district court decision that California's litigation privilege barred plaintiff's state law claims, even where claims were based on prelitigation conduct); Hundal v. PLM Loan Mgmt. Servs., Inc. , No. 3:16-CV-01287-WHO, 2016 WL 7157644, at *6 (N.D. Cal. Dec. 8, 2016) (finding that defendant was "entitled to immunity for state law causes of action, even though this case is in federal court on the basis of federal question jurisdiction.").

3. Choice-of-Law Analysis

Cline insists that if any state litigation privilege applies, it is New York's, and New York's privilege does not extend to prelitigation conduct. For the same reasons I concluded that New York's anti-SLAPP regime applies, New York's litigation privilege applies.

New York's litigation privilege extends to the prelitigation stage, but it only applies "to statements pertinent to a good faith anticipated litigation." Front, Inc. v. Khalil , 24 N.Y.3d 713, 720, 4 N.Y.S.3d 581, 28 N.E.3d 15 (2015). The "privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client's adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel's ethical obligations." Id.

Cline insists that Reetz-Laiolo's choice to excise the most intrusive and outrageous allegations from the complaint, including sexually explicit communications, a nude photograph, and references to erotica sites, demonstrates that those allegations had no logical relationship to the litigation. Reetz-Laiolo counters that Cline's sexual history was relevant to her claims that he infected her with HPV, the screenshots were necessary to rebut her claims that her hacking should be excused by her youth and naiveté, and the erotica sites were relevant to his copyright claim. But Cline underscores that the inclusion of sexually explicit communications post-dating her relationship with Reetz-Laiolo could not be relevant to any potential claims.

Under these circumstances, the applicability of New York's qualified privilege protecting prelitigation communications presents a question of fact better left for resolution at a later stage of the proceedings. Reetz-Laiolo's motion to dismiss these claims on the grounds of an absolute litigation privilege is DENIED.

C. Whether Cline Has Stated a Claim for IIED

The statute of limitations for the intentional infliction of emotional distress is two years. See Cal. Civ. Proc. Code § 335.1 (identifying two-year statute of limitations); Pugliese v. Superior Court , 146 Cal. App. 4th 1444, 1450, 53 Cal.Rptr.3d 681 (2007) ("Causes of action for assault, battery and intentional infliction of emotional distress are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1."). To the extent Cline's intentional infliction of emotional distress claim is not based on litigation-related activities, it concerns events outside the two-year statute of limitations period and is untimely.

D. Whether Cline Has Stated a Claim for Domestic Violence

Cline bases her domestic violence claim on her allegations that Reetz-Laiolo stole a couch in late 2011, choked her in July 2012, and threatened to release nude photos of her in 2014. Cline Compl. ¶ 139. She also alleges abuse in the form of "extortionate demands made directly and through counsel, failure to return [her] private materials, and [Reetz-Laiolo's] use of those materials to threaten, harass, disturb the peace of, and humiliate [her]." Id. ¶ 140; see also Opp'n at 24 (explaining that this conduct began in January 2016 and continued through May 2017).

In California, "[a] person is liable for the tort of domestic violence if the plaintiff proves both of the following elements: (1) [t]he infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code [,]" and "(2) [t]he abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code [,]" which includes cohabitants. Cal. Civ. Code § 1708.6 ; see Cal. Penal Code § 13700(b). Section 13700 of the penal code defines abuse as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." Cal. Penal Code § 13700(a).

Reetz-Laiolo argues that the alleged threat to release nude photos and "extortionate demands" do not relate to "bodily injury" and therefore do not constitute domestic violence. Reetz-Laiolo MTD at 12-13. He concedes that the allegations concerning their period of cohabitation fall within the statutory definition of "domestic violence," but insists that the claim nonetheless fails because those acts occurred outside the statute of limitations.

Absent a delayed discovery of injury, "[i]n any civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be ... [w]ithin three years from the date of the last act of domestic violence by the defendant against the plaintiff." Cal. Civ. Proc. Code § 340.15(a). Under this section, " 'domestic violence' has the same meaning as defined in Section 6211 of the Family Code." Cal. Civ. Proc. Code § 340.15(b). And section 6211 of the Family Code defines "domestic violence" as "abuse perpetrated against a specified list of persons, including a cohabitant or former cohabitant. Cal. Fam. Code § 6211.

Cline contends that her domestic violence claim is timely because it is extended by the additional acts of abuse as defined by the Family Code, which occurred during the three years prior to the tolling agreement. Opp'n at 23-25. The Family Code's definition of abuse is "not limited to the actual infliction of physical injury or assault[,]" and includes "behavior that has been or could be enjoined pursuant to Section 6320[,]" which lists threatening, harassing, or "disturbing the peace of [another]" as examples of conduct that a court can enjoin. Cal. Fam. Code § 6203 ; Cal. Fam. Code § 6320(a). Reetz-Laiolo counters that Cline has not alleged any act of domestic violence within the three-year limitations period, so her claim cannot be saved by any additional acts of "abuse" within the period.

Cline cites to Pugliese v. Superior Court , 146 Cal. App. 4th 1444, 53 Cal.Rptr.3d 681 (2007), to insist that "a much broader array of abusive conduct can serve to extend the statute of limitations on claims of domestic violence." Opp'n at 23-24. In Pugliese , the California Court of Appeal set aside the trial court's order granting defendant's "in limine motion to exclude all references to acts of domestic violence alleged to have occurred three years prior to the date [plaintiff] filed her domestic violence complaint." 146 Cal. App. 4th at 1447, 53 Cal.Rptr.3d 681. The Court looked at the statutory language and decided that the legislature must have intended to adopt the continuing tort theory by adding the words "last act" to the statute, "thus allowing domestic violence victims to recover damages for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the 'last act of domestic violence.' " Id. at 1451, 53 Cal.Rptr.3d 681. The court explained, "[g]enerally, a limitations period begins to run upon the occurrence of the last fact essential to the cause of action[,]" but "where a tort involves a continuing wrong, the statute of limitations does not begin to run until the date of the last injury or when the tortuous [sic] acts cease." Id. at 1452, 53 Cal.Rptr.3d 681. The court continued to examine the legislative history and found that the legislature "understood that domestic violence encompasses a series of acts, including assault, battery and intentional infliction of emotional distress, and that when these acts are coupled with an oppressive atmosphere of control, the continuing tort of domestic violence results." Id. at 1455, 53 Cal.Rptr.3d 681. And it concluded "that damages are available to victims of domestic violence, not just for the 'last act' of abuse, but for acts occurring prior to the date of the 'last act.' " Id. ; see also id. at 1447, 53 Cal.Rptr.3d 681 ("We conclude that domestic violence litigants are entitled to seek recovery for all acts of domestic abuse occurring during the domestic relationship, so long as the litigant proves a continuing course of abusive conduct.").

Pugliese dealt with a plaintiff's ability to recover damages for acts of domestic violence outside of the limitations period. See 146 Cal. App. 4th at 1448, 53 Cal.Rptr.3d 681 ("The issue presented is whether [plaintiff] is barred, pursuant to the three-year limitations period ... from recovering damages for acts of domestic violence occurring prior to April 2001."). Cline seizes on its "continuing tort theory" discussion to stretch its holding beyond recognition. Her situation is easily distinguished from the plaintiff in Pugliese , who "ha[d] alleged continual domestic abuse over a 15-year period, and that [defendant's] tortuous [sic] conduct d