THE PEOPLE ex rel. KAMALA HARRIS, as Attorney General, etc., Plaintiff and Appellant,
DELTA AIR LINES, INC., Defendant and Respondent.
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?????????Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Robert Morgester, Assistant Attorney General, Adam Miller and Stacey D. Schesser, Deputy Attorneys General, for Plaintiff and Appellant.
?????????Latham & Watkins, David J. Schindler, Jennifer C. Archie and Drew R. Wisniewski for Defendant and Respondent.
?????????Steinbrecher & Span and Robert S. Span for Air Transport Association of America, Inc., doing business as Airlines for America, as Amicus Curiae on behalf of Defendant and Respondent.
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FACTUAL AND PROCEDURAL BACKGROUND
A. California?s Online Privacy Protection Act of 2003
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Web site or online service with notice of its privacy policies, thus improving the knowledge these individuals have as to whether personally identifiable information obtained by the commercial Web site through the Internet may be disclosed, sold, or shared. [?] (c) It is the intent of the Legislature that Internet service providers or similar entities shall have no obligations under this act related to personally identifiable information that they transmit or store at the request of third parties.? (Stats. 2003, ch. 829, ? 2, p. 6183.)
? The Senate Rules Committee?s third reading analysis of [the OPPA] indicated that this legislation was necessary because ?[e]xisting law does not directly regulate the privacy practices of online business entities.? (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 68 (2003-2004 Reg. Sess.) as amended Sept. 3, 2003, p. 2.) The bill?s author explained that because ?many consumers refuse to do business online because they have little protection against abuse, ? online retailers should be required at least to disclose in their online privacy policies what personal information may be collected and how it is used. (Assem. Com. on Business and Professions, Analysis of Assem. Bill No. 68 (2003-2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2; see Assem. Com. on Judiciary, Analysis of Assem. Bill No. 68 (2003?2004 Reg. Sess.) as amended Apr. 2, 2003, p. 3 [? ?Any policy will do. The bill simply requires that an operator have a policy and then follow it.? ?].) According to the bill?s author, this disclosure regime would ?provide meaningful privacy protection that will help foster the continued growth of the Internet economy.? (Assem. Com. on Business and Professions, Analysis of Assem. Bill No. 68 (2003?2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2.)? (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 148 [151 Cal.Rptr.3d 841, 292 P.3d 883].)
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B. Delta?s Fly Delta Mobile Application
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By a letter dated October 26, 2012, the state Attorney General notified Delta that its Fly Delta mobile application did not comply with the requirements of the OPPA, and that violations of the OPPA were subject to enforcement under the UCL. Among other things, Delta was told that ?[a] Web site or online service operator that collects personally identifiable information (?PII?) and ?fails to post its [privacy] policy [that complies with statutory requirements] within 30 days after being notified of noncompliance? is in violation of? the OPPA. Delta was asked to respond within 30 days of the date of the letter with the following information: (1) Delta?s specific plans and timeline to comply with the law; or (2) why Delta believed the Fly Delta mobile application was not covered by the law. On October 30, 2012, ?several media sources reported that Delta had released a statement that said: ?We have received a letter from the Attorney General and intend to provide the requested information.? ?
C. Superior Court Proceeding
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In lieu of an answer, Delta filed a demurrer, arguing, in pertinent part, that the plain terms of the ADA, and United States Supreme Court decisions interpreting the ADA?s broad preemption provision, compelled the conclusion that the federal law expressly preempted the State?s lawsuit. The State opposed the demurrer, arguing that the ADA did not preempt its lawsuit. Finding that the ADA expressly preempted the State?s lawsuit, the superior court sustained Delta?s demurrer without leave to amend and dismissed the complaint with prejudice. The State?s timely appeal ensued. 
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I. Standard of Review
?We apply a de novo standard of review because this case was resolved on demurrer (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [106 Cal.Rptr.2d 271, 21 P.3d 1189]) and because federal preemption presents a pure question of law (Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371 [104 Cal.Rptr.2d 197]).? (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [72 Cal.Rptr.3d 112, 175 P.3d 1170].) “A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the [superior] court acted on that ground.? (Carman v. Alvord (1982) 31 Cal.3d 318, 324 [182 Cal.Rptr. 506, 644 P.2d 192].)
II. Federal Preemption Principles
? ?The Supremacy clause of the United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preempt state law.? (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935 [63 Cal.Rptr.3d 50, 162 P.3d 569]; see U.S. Const., art. VI, cl. 2; Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [120 L.Ed.2d 407, 112 S.Ct. 2608].) Congress may exercise that power by enacting an express preemption provision, or courts may infer preemption under one or more of three implied preemption doctrines: conflict, obstacle, or field preemption. (See In re Jose C. (2009)45 Cal.4th 534, 550 [87 Cal.Rptr.3d 674, 198 P.3d 1087].)? (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1059 [126 Cal.Rptr.3d 428, 253 P.3d 522] (Brown).)
Also, ?[t]he United States Supreme Court has identified ?two cornerstones? of federal preemption analysis. (Wyeth v. Levine (2009) 555 U.S. 555, 565 [173 L.Ed.2d 51, 129 S.Ct. 1187, 1194].) First, the question of preemption
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? ?fundamentally is a question of congressional intent.? ? (In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1265 [63 Cal.Rptr.3d 418, 163 P.3d 106], quoting English v. General Electric Co. (1990) 496 U.S. 72, 79 [110 L.Ed.2d 65, 110 S.Ct. 2270]; see also Wyeth, 555 U.S. at p. 565 [129 S.Ct. at p. 1194] [? ?[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.? ?].) If a statute ?contains an express pre-emption clause, our ?task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress? pre-emptive intent.? ? (Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 62-63 [154 L.Ed.2d 466,123 S.Ct. 518]; see also Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 939.)? (Brown, supra, 51 Cal.4th at pp. 1059-1060.) ?[W]hen Congress has made its intent known through explicit statutory language, the courts? task is an easy one.? (English v. General Electric Co., supra, 496 U.S. at p. 79.) There is also a second rule that may be relevant to an analysis in preemption cases, namely, ? ? ? ?the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.? ? ? [Citations.]? (Brown, supra, 51 Cal.4th at p. 1060.) This is known as the presumption against preemption, and its application ? ?provides assurance that ?the federal-state balance? [citation] will not be disturbed unintentionally by Congress or unnecessarily by the courts.? [Citation.]? (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815 [135 Cal.Rptr.2d 1, 69 P.3d 927].)
III. The ADA Preemption Provision (49 U.S.C. ? 41713(b)(1))
?Prior to 1978, the Federal Aviation Act of 1958 (FAA) [(72 Stats. 731, as amended, 49 U.S.C.App. ? 1301 et. seq.)], gave the Civil Aeronautics Board (CAB) authority to regulate interstate airfares and to take administrative action against certain deceptive trade practices. It did not, however, expressly pre-empt state regulation, and contained a ?savings clause? providing that ?nothing… in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.? [(49 U.S.C.App. ? 1506 [now 49 U.S.C. ? 40120(c)].)] As a result, the States were able to regulate intrastate airfares (including those offered by interstate air carriers) [(see, e.g., California v. CAB (1978) 189 U.S.App.D.C. 176, 178, [581 F.2d 954, 956], cert. denied (1979) 439 U.S. 1068 [59 L.Ed.2d 32, 99 S.Ct. 834])], and to enforce their own laws against deceptive trade practices. [(See Nader v. Allegheny Airlines, Inc. (1976) 426 U.S. 290, 300 [48 L.Ed.2d 643, 96 S.Ct. 1978].)]” (Morales v. Trans World Airlines, Inc. (1992) 504 U.S. 374, 378 [119 L.Ed.2d 157, 112 S.Ct. 2031] (Morales).)
?In 1978, however, Congress, determining that ?maximum reliance on competitive market forces? would best further ?efficiency, innovation, and low
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prices? as well as ?variety [and] quality… of air transportation services, ? enacted the Airline Deregulation Act (ADA). [(49 U.S.C.App. ?? 1302(a)(4), 1302(a)(9) [now 49 U.S.C. ?? 40101(a)(6), (12)(A)].)] To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law ?relating to rates, routes, or services? of any air carrier. [(49 U.S.C.App. ? 1305(a)(1) [now 49 U.S.C. ? 41713(b)(1)].)]? (Morales, supra, 504 U.S. at pp. 378-379.) ?In its current form, this provision states that ?a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.? [(49 U.S.C.] ? 41713(b)(1).)]?  (Northwest, Inc. v. Ginsberg, supra, 572 U.S. at p. ___ [134 S.Ct. at p. 1428 (Ginsberg).) ?The ADA retained the CAB?s previous enforcement authority regarding deceptive trade practices (which was transferred to the Department of Transportation (DOT) when the CAB was abolished in 1985), and it also did not repeal or alter the saving clause in the prior law.? (Morales, supra, 504 U.S. at p. 379.)
The United States Supreme Court has addressed the reach of the ADA?s preemption provision in three cases: Morales, supra, 504 U.S. 374; Wolens, supra, 513 U.S. 219; and Ginsberg, supra, 572 U.S. at p. ___ [134 S.Ct. 1422].
?In 1992, in Morales, [the high court] confronted detailed Travel Industry Enforcement Guidelines, composed by the National Association of Attorneys General (NAAG). The NAAG guidelines purported to govern, inter alia, the content and format of airline fare advertising. [(See Morales, supra, 504 U.S. at pp. 393-418 [appendix to Court?s opinion setting out NAAG guidelines on air travel industry advertising and marketing practices].)] Several States had endeavored to enforce the NAAG guidelines, under the States? general consumer protection laws, to stop allegedly deceptive airline advertisements. The States? initiative, [the high court] determined, ?related to [airline] [prices], routes, or services, ? [(Morales, supra, at pp. 378-379)]; consequently, [the high court] held, the fare advertising provisions of the NAAG guidelines were preempted by the ADA [(Morales, supra, at p. 379).]? (Wolens, supra, 513 U.S. at p. 223.)Morales, in pertinent part, broadly defined the ?relating to? language in the ADA preemption clause as
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?having a connection with, or reference to, airline ?[prices], routes, or services, ? ? even if the state law did not directly regulate those activities. (Morales, supra, 504 U.S. at pp. 384, 386; see also Rowe v. New Hampshire Motor Transp. Assn. (2008) 552 U.S. 364, 370-371 [169 L.Ed.2d 933, 128 S.Ct. 989] (Rowe), quoting with approval Morales, supra, at pp. 384, 386.) But, as later explained by the high court, in Wolens, ?[t]he Morales opinion presented much more, however, in accounting for the ADA?s preemption of the state regulation in question. The opinion pointed out that the concerned federal agencies ? the Department of Transportation (DOT) and the Federal Trade Commission (FTC) ? objected to the NAAG fare advertising guidelines as inconsistent with the ADA?s deregulatory purpose; both agencies, Morales observed, regarded the guidelines as state regulatory measures preempted by the ADA. [Citations.] Moralesemphasized that the challenged guidelines set ?binding requirements as to how airline tickets may be marketed, ? and ?imposed [obligations that] would have a significant impact upon… the fares [airlines] charge.? [Citation.] The opinion further noted that the airlines would not have ?carte blanche to lie and deceive consumers, ? for ?the DOT retains the power to prohibit advertisements which in its opinion do not further competitive pricing.? [Citation.] Morales also left room for state actions ?too tenuous, remote, or peripheral… to have pre-emptive effect.? [Citation.]? (Wolens, supra, 513 U.S. at p. 224, fn. omitted.)
In 1995, in Wolens, supra, 513 U.S. 219, the high court again considered the application of the ADA preemption clause to a claim concerning an airline?s frequent flyer program. (Wolens, supra, at p. 222.) The Illinois Supreme Court had held that the ADA did not prohibit American Airlines? (American?s) frequent flyer program members from pursuing a claim for money damages based on an allegation that the airline?s retroactive modification of the program?s benefits violated Illinois? Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act). (Wolens, supra, at pp. 222, 225, 226.) ?Describing frequent flyer programs as not ?essential, ? but merely ?peripheral to the operation of an airline, ?… the Illinois court typed plaintiffs? state-law claims… as ?related to American?s [prices, ] routes, and services? only ?tangentially? or ?tenuously?….? (Id. at p. 226, citations omitted.) The high court reversed, and held that ?the ADA?s preemption prescription bars state-imposed regulation of air carriers….? (Wolens, supra, at p. 222.) In so ruling, the high court initially addressed the Illinois Supreme Court?s decision in the following manner: ?We need not dwell on the question whether plaintiffs? complaints state claims ?relating to [air carrier] [prices, ], routes, or services.? Morales, we are satisfied, does not countenance the Illinois Supreme Court?s separation of matters ?essential? from matters unessential to airline operations. Plaintiffs? claims relate to ?[prices], ? i.e., American?s charges in the form of mileage credits for free
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tickets and upgrades, and to ?services, ? i.e., access to flights and class-of-service upgrades unlimited by retrospectively applied capacity controls and blackout dates.? (Wolens, supra, at p. 226.) As to the issue of whether plaintiffs? claims under the Illinois Consumer Fraud Act were preempted, the high court explained: ?The Illinois Consumer Fraud Act declares unlawful [?] ?[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ?Uniform Deceptive Trade Practices Act?… in the conduct of any trade or commerce… whether any person has in fact been misled, deceived or damaged thereby.? [Citation.] [?] The Act is prescriptive; it controls the primary conduct of those falling within its governance. This Illinois law, in fact, is paradigmatic of the consumer protection legislation underpinning the NAAG guidelines. The NAAG Task Force on the Air Travel Industry, on which the Attorneys General of California, Illinois, Texas, and Washington served [citation], reported that the guidelines created no [?] ?new laws or regulations regarding the advertising practices or other business practices of the airline industry. They merely explain in detail how existing state laws apply to air fare advertising and frequent flyer programs.? [Citation.] [?] The NAAG guidelines highlight the potential for intrusive regulation of airline business practices inherent in state consumer protection legislation typified by the Consumer Fraud Act. For example, the guidelines enforcing the legislation instruct airlines on language appropriate to reserve rights to alter frequent flyer programs, and they include transition rules for the fair institution of capacity controls. [Citation.] [?] As the NAAG guidelines illustrate, the Consumer Fraud Act serves as a means to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers. In light of the full text of the preemption clause, and of the ADA?s purpose to leave largely to the airlines themselves, and not at all to States, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services, [the Court] conclude[d] that [the ADA] preempts plaintiffs? claims under the Illinois Consumer Fraud Act.? (Wolens, supra, at pp. 227-228, fn. omitted; see also Rowe, supra, 552 U.S. at p. 371, citing with approval Wolens, supra, at pp. 226-228.)
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And, in Ginsberg, supra, 572 U.S. at p. ___ [134 S.Ct. 1422], the high court again considered the reach of the ADA?s preemption provision to a claim based on an airline?s alleged violation of its frequent flyer program. (Ginsberg, at p.___ [134 S.Ct. at pp. 1426-1427].) In that case, the plaintiff filed a class action on behalf of himself and all other similarly situated members of Northwest?s frequent flyer program, alleging, among other things, that the airline had breached its implied covenant of good faith and fair dealing when it terminated the plaintiff?s membership in its frequent flyer program. (Id. at p.___[134 S.Ct. at p. 1427].) The trial court determined that the breach of implied covenant claim was preempted because it ?related to? Northwest?s rates and services and thus fell within the ADA?s preemption provision. (Ginsberg, supra, at p.___ [134 S.Ct. at p. 1428].) On appeal, ?[t]he Ninth Circuit Court of Appeal reversed. [Citation.] Relying on pre-Wolens Circuit precedent, the Ninth Circuit first held that a breach of implied covenant claim is ?too tenuously connected to airline regulation to trigger preemption under the ADA.? [Citation.] Such a claim, the Ninth Circuit wrote, ?does not interfere with the [ADA?s] deregulatory mandate? and does not ? ?force the Airlines to adopt or change their prices, routes, or services ? the prerequisite for preemption.? ? [Citation.] In addition, the [Ninth Circuit] held that the covenant of good faith and fair dealing does not fall within the terms of the [ADA?s] pre-emption provision because it does not have a ?direct effect? on either ?prices? or ?services.? [Citation.]? (Ginsberg, supra, at p.___ [134 S.Ct. at p. 1428].) The high court reversed. It found that under the circumstances presented, the breach of implied covenant claim was preempted by the ADA. (Ginsburg, supra, at p.___ [134 S.Ct. at pp. 1429-1433.) ReaffirmingMorales? broad interpretation of the ADA preemption provision (Ginsberg, at p. ___ [134 S.Ct. at pp. 1428-1429, 1430].), the high court concluded that the breach of implied covenant claim ? ?relate[d] to? ?[prices], routes, or services.? ? (Id. at p. ___ [134 S.Ct. at p. 1430].) The high court stated: ?A claim satisfies this requirement if it has ?a connection with, or reference to, airline? prices, routes, or services [(Morales, supra, 504 U.S. at p. 384)], and the claim at issue here clearly has such a connection. That claim seeks [the plaintiff?s] reinstatement in Northwest?s frequent flyer program so that he can access the program?s ?valuable… benefits, ? including ?flight upgrades, accumulated mileage, loyalty program status or benefits on other airlines, and other advantages.? [Citation.] [?] Like the frequent flyer program in Wolens, the Northwest program is connected to the airline?s ?rates? because the program awards mileage credits that can be redeemed for tickets and upgrades. [Citation.] When miles are used in this way, the rate that a customer pays, i.e., the price of a particular ticket is either eliminated or reduced. The program is also connected to ?services, ? i.e., access to flights and to higher service categories. [Citation.]? (Ginsberg, supra, at p. ___ [134 S.Ct. at pp. 1430-1431].) The high court further noted that its ruling did not ?leave participants in frequent
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flyer programs without protection. The ADA is based on the view that the best interests of airline passengers are most effectively promoted, in the main, by allowing the free market to operate. If an airline acquires a reputation for mistreating the participants in its frequent flyer program (who are generally the airline?s most loyal and valuable customers), customers can avoid that program and may be able to enroll in a more favorable rival program. [?] Federal law also provides protection for frequent flyer program participants. Congress has given the Department of Transportation (DOT) the general authority to prohibit and punish unfair and deceptive practices in air transportation and in the sale of air transportation [(49 U.S.C. ? 41712(a))], and Congress has specifically authorized the DOT to investigate complaints relating to frequent flyer programs. [(See FAA Modernization and Reform Act of 2012, ? 408(6), 126 Stat. 87.)] Pursuant to these provisions, the DOT regularly entertains and acts on such complaints.? (Ginsberg, supra, at p.___ [134 S.Ct. at p. 1433], fn. omitted.)
Having described our high court?s pertinent decisions in this area of law, we now discuss whether the ADA preemption provision bars state enforcement of the OPPA as applied to Delta?s Fly Delta mobile application.
IV. The ADA as Applied to the State?s Lawsuit to Enforce the OPPA Against Delta
Preliminary to our analysis, we address several issues that have been conclusively disposed of by Morales and Wolens.
We agree with the Attorney General that in determining whether the ADA preempts this UCL action, we examine the underlying state law predicate for the UCL action ? the OPPA. ?Morales calls for an analysis of the underlying state regulations to see if they relate to [an air carrier?s] prices, routes, or services when enforced through the UCL.? (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 784-785 [174 Cal.Rptr.3d 626, 329 P.3d 180], cert. den. (2015) 574 U.S. __ [191 L.Ed.2d 360, 135 S.Ct. 1400] (Pac Anchor Transportation); see Morales, supra, 504 U.S. at pp. 388-390.)
However, we reject the Attorney General?s argument that in our analysis, we are required to presume Congress did not intend to preempt the
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OPPA. ?[T]he presumption against preemption ?only arises… if Congress legislates in a field traditionally occupied by the states.? [Citation]. In matters of air transportation, the federal presence is both longstanding and pervasive; that field is simply not one traditionally reserved to the states. The Supreme Court has not suggested that the presumption against preemption should be interposed in that field, nor has the [high court] been hesitant to give force to the ADA preemption provision.? (Brown v. United Airlines, Inc. (1st Cir. 2013) 720 F.3d 60, 68; see DiFore v. American Airlines, Inc. (1st Cir. 2011) 646 F.3d 81, 86 (DiFiore); Buck v. American Airlines, Inc. (1st Cir. s supported by Moralesand Wolens, in which the high court has not ?adopted [the Attorney General?s] position in this case that we should presume strongly against preempting in areas historically occupied by state law.? (DiFiore, supra, 646 F.3d at p. 86; seeBuck, supra, 476 F.3d at p. 34.) Instead, in resolving the scope of the ADA?s preemption provision, the high court?s analyses in those cases centered on the impact that the challenged state law would have on airline prices and services, ? ? ?and not on the fact that the preempted laws were enacted pursuant to the states? police power to combat consumer fraud.? ? ? (De Jesus v. American Airlines, Inc. (D. Puerto Rico 2007) 532 F.Supp.2d 345, 350 (De Jesus); see Wolens, supra, 513 U.S. at p. 222 [?the ADA?s preemption prescription bars state-imposed regulation of air carriers…?]; Morales, supra, 504 U.S. at pp. 387-390 [ADA?s preemption prescription bars state enforcement of National Association of Attorneys General (NAAG) fare advertising guidelines under the states? general consumer protection laws].)
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?????????We additionally find no merit to the Attorney General?s assertions that (1) the OPPA is a law of general applicability, which does not reference or coercively regulate Delta?s services, and (2) Delta is not required to offer a mobile application in order to conduct its business, and therefore, the OPPA applies to Delta only because Delta ?chooses to provide a mobile application that is subject to? the OPPA. (Original italics.) Again, the high court has disposed of these arguments in Morales and Wolens. Rejecting the argument ?that only state laws specifically addressed to the airline industry are pre-empted, whereas the ADA imposes no constraints on laws of general applicability, ? Morales explained: ?Besides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion… ignores the sweep of the ?relating to? language.? (Morales, supra, 504 U.S. at p. 386.) The high court has also made it clear that ADA preemption does not turn on whether the state law is related to a matter ?essential, ? as opposed to a matter that is unessential, to airline operations. (Wolens, supra, 513 U.S. at p. 226.)
We now turn to the issue before us, namely, whether the complaint under the OPPA is preempted by the ADA. ?In light of the full text of the preemption clause, and of the ADA?s purpose to leave largely to the airlines themselves, and not at all to the States, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services? (Wolens, supra, 513 U.S. at p. 228), we conclude the ADA preempts the State?s claim under the OPPA as applied to Delta?s operation of its Fly Delta mobile application.
In arguing against federal preemption, the Attorney General asserts the OPPA is merely a ?disclosure regime, ? in that ?other than some baseline requirements, ? the OPPA gives the operator of online services ?broad discretion as to what to say and where to ?conspicuously post? the policy;? ? ?[a]ny policy will do. The [law] simply requires that an operator have a policy and
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We also reject the Attorney General?s argument that the OPPA does not run afoul of the ADA because it would have at best a peripheral effect on ticket prices, routes, or airline services. ?When the [high court] invoked the
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We conclude our discussion by noting that we do not write on an entirely clean slate. Several federal district courts have considered the scope
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We find these decisions both persuasive and dispositive of the federal preemption issue in this case. 
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?????????V. State?s Request for Leave to Amend
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eliminate the ADA?s express preemptive effect on the State?s enforcement of the OPPA against Delta. Consequently, we deny leave to amend the complaint.
In sum, we conclude the State?s lawsuit against Delta based on allegations of violations of the OPPA is expressly preempted by the ADA. Because we also conclude there is no reasonable possibility that the complaint can be amended to avoid the preclusive effect of federal preemption, we must uphold the dismissal for failure to state a claim for relief.
The order filed on May 9, 2013, is affirmed. Delta Air Lines, Inc. is awarded costs on appeal.
?????????McGuiness, P. J., and Pollak, J., concurred.
Because the Legislature has not given Business and Professions Code section 17200 et seq. an official name, our Supreme Court refers to these sections as the ?unfair competition law.? (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 169, fn. 2 [83 Cal.Rptr.2d 548, 973 P.2d 527].) In this opinion, we refer to these statutory sections in the same manner.
We treat the superior court?s May 9, 2013, order sustaining the demurrer without leave to amend and dismissing the complaint with prejudice as a final judgment of dismissal from which an appeal lies. (See Code Civ. Proc., ? 581d;Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [63 Cal.Rptr. 724, 433 P.2d 732] [” ‘an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment? ?].)
Because the State?s action was resolved by demurrer, we set forth the facts as alleged in the complaint, the operative pleading. (Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1156 [97 Cal.Rptr.2d 722].)
In opposing the demurrer, the State informed the superior court that since the filing of its complaint, Delta?s Fly Delta mobile application allows customers to price and purchase tickets.
In addition to the briefs filed by the parties, we have considered an amicus curiae brief, in support of Delta?s position, filed by Air Transport Association of America, Inc. doing business as Airlines For America.
Also, Delta requests that we take judicial notice of certain documents, which were not submitted in the superior court: (1) United States Senate Report No. 95-631, Second Session (1978) regarding the ADA; (2) United States House of Representatives Report No. 95-1779, Second Session (1978) regarding the ADA; (3) United States House of Representatives Report No. 98-793 (1984) regarding the ADA; (4) California Senate Committee of Judiciary, Analysis of Assembly Bill No. 68 (2003-2004 Reg. Sess.) analyzing the OPPA; (5) Statement of Interest of United States, filed in National Federation of the Blind v. United Airlines, Inc. (N.D. Cal., Apr. 25, 2011, C 10-04816 WHA) 2011 U.S. Dist. Lexis 44366; (6) Brief for United States as amicus curiae supporting affirmance, filed in National Federation of the Blind v. United Airlines, Inc. (9th Cir. 2016) 813 F.3d 718 (National Fed. of the Blind); (7) Brief for United States as amicus curiae supporting reversal, filed in Northwest, Inc. v. Ginsberg (2014) 572 U.S. __ [188 L.Ed.2d 538, 134 S.Ct. 1422]; (8) Third-Party Enforcement Complaint of the Electronic Privacy Information Center Against Northwest Airlines, Inc.([Department of Transportation, Sept. 10, 2004, No. OST-2004-6939-10) [2004 WL 2049588]); (9) Assistant General Counsel for ?Aviation Enforcement and Proceeding? of the United States Department of Commerce Samuel Podberesky, letter to John Mogg at the European Commission in Belgium, explaining the role of the Department of Transportation in protecting the privacy of consumers with respect to information provided by them to airlines (July 14, 2000). We deferred consideration of Delta?s request for judicial notice to the decision on appeal, and we now deny the request for judicial notice. ?Generally, ? ?when reviewing the correctness of a [superior] court?s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.? [Citation.]? [Citations.]? (California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 803 [121 Cal.Rptr.3d 696].) Delta has ?not cited any exceptional circumstances that would justify a deviation from this rule in this appeal.? (Ibid.) In all events, as to the legislative reports related to the enactment of the ADA and the OPPA, a request for judicial notice of those materials is not necessary. ?Citation to the material is sufficient.? (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn. 9 [77 Cal.Rptr.2d 709, 960 P.2d 513]; see Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4 [158 Cal.Rptr.3d 508] [“[a] motion for judicial notice of published legislative history, such as the Senate Analysis here, is unnecessary?].) Consideration of the other described material is not necessary to the resolution of this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [76 Cal.Rptr.2d 749, 958 P.2d 1062] [court declined to take judicial notice of materials that were not ?necessary…?].)
Consequently, we do not separately address the superior court?s reasons for sustaining the demurrer without leave to amend. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1470 [49 Cal.Rptr.3d 227] [to the extent the superior court?s ruling may have been in error, ?[w]e need not make the determination as to whether there was error? because our review is de novo and we ?make our own determination as to whether plaintiff[ ] [has] pleaded facts sufficient to constitute a cause of action, under any theory?].)
The clause formerly read in relevant part: ?No State… shall enact or enforce any law, rule, regulation, standard or other provision having the force and effect of law relating to rates, routes, or services of any air carrier….? (49 U.S.C.App. ? 1305(a)(1).) When Congress reenacted Title 49 of the U.S. Code in 1994, it revised the clause to read as it is stated in the text of this opinion. ?Congress intended the revision to make no substantive change. [(Pub. L. No. 103-272, ? 1(a), 108 Stats. 745.)]? (American Airlines, Inc. v. Wolens (1995) 513 U.S. 219, 223, fn. 1 [130 L.Ed.2d 715, 115 S.Ct. 817] (Wolens).)
In a footnote, the high court stated: ?We note again, however, that the DOT retains authority to investigate unfair and deceptive practices and unfair methods of competition by airlines, and may order an airline to cease and desist from such practices or methods of competition. [Citations.]? (Wolens, supra. 513 U.S. at p. 228, fn. 4.)
Congress has also specifically authorized the Department of Tranportation (DOT) to investigate consumer complaints about deceptive or misleading advertising. (See FAA Modernization and Reform Act of 2012, ? 408(7), 126 Stats. 87.)
As noted, the OPPA does not explicitly provide for a private action or public prosecution for any violation of its provisions. In the absence of any arguments on the matter, we assume for the purposes of this appeal that a violation of the OPPA may be enforced through a UCL action.
In so concluding, we need not and do not address the Attorney General?s assertion that the Fly Delta mobile application is not a ?service? within the meaning of the ADA. We recognize that the federal circuit courts of appeals have read the word ?services? in the ADA preemption provision in various ways. (Compare Hodges v. Delta Airlines, Inc. (5th Cir. 1995) 44 F.3d 334, 336 [en banc] (defining ?service? more broadly in terms of the ? ?[contractual] features of air transportation, ? ? including ? ?ticketing, boarding procedures, provision of food and drink, and baggage handling? ?), with Charas v. Trans World Airlines, Inc. (9th Cir. 1998) 160 F.3d 1259, 1261 [en banc] (defining ?service? more narrowly to ?the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail, ? but not to ?include an airline?s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities?); National Federation of the Blind, supra, 813 F.3d at pp. 725-729 [accord].) However, ?[w]e are… not bound by the decisions of federal courts other than the United States Supreme Court (People v. Gray (2005) 37 Cal.4th 168, 226 [33 Cal.Rptr.3d 451, 118 P.3d 496]), although their interpretation of federal law may be persuasive (Spellman v. Securities, Annuities & Ins. Services, Inc. (1992) 8 Cal.App.4th 452, 459 [10 Cal.Rptr.2d 427]).” (Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 109, fn. 2 [158 Cal.Rptr.3d 150].) In all events, the issue before us is not whether the Fly Delta application is a ?service, ? but whether it ?relates to? Delta?s services. As Morales explains, the Attorney General?s assertion ?[s]imply reads the words ?relating to? out of the statute.? (Morales, supra, 504 U.S. at p. 385.)
The Attorney General?s reliance on the United States Supreme Court?s decision in Dan?s City Used Cars, Inc. v. Pelkey (2013) 569 U.S.__ [185 L.Ed.2d 909, 133 S.Ct. 1769] (Pelkey), is misplaced. At issue in that case was the preemption provision of the Federal Aviation Administration Authorization Act of 1994 (FAAAA; Pub. L. No. 103-305 (Aug. 23, 1994) 108 Stat. 1569), which generally precludes any State from enacting or enforcing a law ?related to a price, route, or service of any motor carrier… with respect to the transportation of property.? (49 U.S.C. ? 14501(c)(1); italics added.) As explained by the high court, ?[a]lthough [49 U.S.C.] ? 14501(c)(1) otherwise tracks the ADA?s air-carrier preemption provision [(Rowe, supra, 552 U.S. at p. 370)], the FAAAA formulation contains one conspicuous alteration – the addition of the words ?with respect to the transportation of property.? That phrase ?massively limits the scope of preemption? ordered by the FAAAA. [Citation.] [Thus, ]… for purposes of FAAAA preemption, it is not sufficient that a state law relates to the ?price, route, or service? of a motor carrier in any capacity; the law must also concern a motor carrier?s ?transportation of property.? [Citation.]? (Pelkey, supra, 569 U.S. at p. __ [133 S.Ct. at pp. 1778-1779], fn. omitted.)
The Attorney General also requests that we consider certain cases that have been decided since the briefs were filed in this matter. However, these cases, like Pelkey, are inapposite as they also concern the scope of the FAAAA?s preemption provision (49 U.S.C. ? 41501(c)(1)) as applied to state enforcement of labor and employment laws against motor carriers. (See Dilts v. Penske Logistics LLC (9th Cir. 2014) 769 F.3d 637, 647, cert. denied (2015) 575 U.S.__ [191 L.Ed.2d 956, 135 S.Ct. 2049]; Pac Anchor Transportation, supra, 59 Cal.4th at p. 783; Godfrey v. Oakland Port Services (2014) 230 Cal.App.4th 1267, 1279-1283 [179 Cal.Rptr.3d 498], cert. denied (2015) 577 U.S. ___ [193 L.Ed.2d 228, 136 S.Ct. 318].) Here, we are concerned with whether the ADA (49 U.S.C. ? 41713(b)(1)) preempts state enforcement of the OPPA, which law we have concluded is ?paradigmatic of the consumer protection legislation? at issue in Morales and Wolens. (Wolens, supra, 513 U.S. at pp. 227-228.)
We recognize that ?[b]oth Morales and Wolens relied on doctrine developed under [the Employee Retirement Income Security Act of 1974 (ERISA) [29 U.S.C. ? 1144(a)]], and at the time the [high court?s] opinions tended to read the ERISA language broadly. [(See, e.g., Morales, supra, 504 U.S. at pp. 383-384, relying on Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85 [77 L.Ed.2d 490, 103 S.Ct. 2890].)] … More recent decisions hold that state laws of general applicability are not preempted just because they have economic effects on pension or welfare plans. [(See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995) 514 U.S. 645 [131 L.Ed.2d 695,115 S.Ct. 1671]; California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc. (1997) 519 U.S. 316, 319, 325, 330-331 [136 L.Ed.2d 791, 117 S.Ct. 832] (Dillingham); De Buono v. NYSA?ILA Medical and Clinical Services Fund (1997) 520 U.S. 806 [138 L.Ed.2d 21, 117 S.Ct. 1747] (De Buono).)]… But if developments in pension law have undercut holdings in air-transportation law, it is for the [United States] Supreme Court itself to make the adjustment. [We must] follow decisions until the [United States] Supreme Court overrules them. [(State Oil Co. v. Khan (1997) 522 U.S. 3, 20 [139 L.Ed.2d 199, 118 S.Ct. 275] [it is the high court?s ?prerogative alone to overrule one of its precedents?]; Rodriguez de Quijas v. Shearson/Am. Ex. (1989) 490 U.S. 477, 484 [104 L.Ed.2d 526, 109 S.Ct. 1917] [“[i]f a precedent of [the high court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the high court] the prerogative of overruling its own decisions?].)] (United Airlines, Inc. v. Mesa Airlines, Inc. (7th Cir. 2000) 219 F.3d 605, 608 (Mesa Airlines); see Boon Ins. Agency v. American Airlines, Inc. (Tex.Ct.App. 2000) 17 S.W.3d 52, 57, fn. 5 [the federal appellate court adheres to the high court?s discussion of the ADA?s preemption provision in Morales andWolens and declines to extrapolate the later ERISA cases into speculation that the high court?s holdings in Morales and Wolens would be different today].) ?[A]nd we doubt that [the Attorney General?s] position could be justified by the latest ERISA cases, even if we were free (which we are not) to prefer decisions such as De Buono and Dillingham over Wolens and Morales.? (Mesa Airlines, supra, 219 F.3d at p. 609.) The Attorney General?s reliance on cases that hold state law is preempted by the ADA only if the law ?binds the carrier to a particular price, route, or service and thereby interferes with competitive market forces within the air carrier industry, ? cannot be reconciled with Morales (NAAG guidelines detailing how existing state laws applied to air fare advertising and frequent flyer programs held preempted), Wolens (Illinois Consumer Fraud Act held preempted) or Ginsberg (common-law claim of implied breach of covenant of good faith and fair dealing held preempted), which are ?a long distance from? state laws or regulations binding a carrier to a particular price, route, or service, and, thereby, interfering with competitive market forces within the air carrier industry. (Mesa Airlines, supra, 219 F.3d at p. 609.)