Fregosa v. Mashable Inc.

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United States District Court
Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DAWN FREGOSA,
Plaintiff,
v.
MASHABLE, INC.,
Defendant.
Case No. 25-cv-01094-CRB
ORDER DENYING MOTION TO
CERTIFY FOR INTERLOCUTORY
APPEAL
Plaintiff Dawn Fregosa brought a putative class action against Defendant Mashable,
Inc. (“Mashable”) under the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code
§§ 630, et seq. Fregosa alleges that Mashable violated the Pen Register Act by embedding
third-party trackers on its website. Mashable previously moved to dismiss Fregosa’s
Second Amended Complaint. Dkt. 34. The Court denied the motion. Order (dkt. 53).
Mashable now moves to certify for interlocutory appeal and to stay the proceedings. Mot.
(dkt. 56). For the reasons discussed below, the motion is DENIED.1 The Court presumes
familiarity with the facts and arguments for this order.
Ordinarily, a party may seek review of a district court’s rulings only after the entry
of final judgment. See 28 U.S.C. § 1291 (providing that courts of appeal “shall have
jurisdiction of appeals from all final decisions of the district courts of the United
States[.]”). In exceptional circumstances, however, courts may deviate from the final-
judgment rule and certify an order for interlocutory review pursuant to 28 U.S.C.
§ 1292(b). Section 1292(b) provides a “narrow exception to the final judgment rule” and
1 The Court deems this matter suitable for determination without oral argument. Civ. L.R. 7-1(b).
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United States District Court
Northern District of California
“requires the district court to expressly find in writing that all three § 1292(b) requirements
are met.” Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010). “These
certification requirements are (1) that there be a controlling question of law, (2) that there
be substantial grounds for difference of opinion, and (3) that an immediate appeal may
materially advance the ultimate termination of the litigation.” In re Cement Antitrust
Litig., 673 F.2d 1020, 1026 (9th Cir. 1981). These requirements are jurisdictional, and the
party seeking certification bears the burden of demonstrating that they have been satisfied.
Couch, 611 F.3d at 633. “Section 1292(b) is a departure from the normal rule that only
final judgments are appealable, and therefore must be construed narrowly.” James v. Price
Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). The decision to certify an order
for interlocutory appeal is a matter within the court’s discretion. Spread Your Wings, LLC
v. AMZ Grp. LLC, No. 20-CV-03336-VKD, 2020 WL 7122513, at *2 (N.D. Cal. Dec. 4,
2020).
Mashable has failed to demonstrate that extraordinary circumstances warrant an
interlocutory appeal. Of the three certification requirements, the Court agrees with
Mashable on two of them. The question of whether CIPA’s pen register prohibition
applies to the software on Mashable’s website is indeed controlling. See Mot. at 5.
Fregosa’s operative complaint explicitly describes the software as “pen registers.” See,
e.g., SAC (dkt. 30) ¶¶ 49–56, 222. If Mashable’s argument on applicability is correct, then
Fregosa could lose. See Mot. at 5. Fregosa’s response that she could also state a CIPA
claim by characterizing the software as a “trap and trace device” is unavailing, since her
complaint does not advance that theory and is currently limited to “pen registers.” See
Opp’n (dkt. 67) at 5; SAC ¶ 222. And on materially advancing the termination of
litigation, Fregosa does not seriously argue that immediate appeal could not potentially
resolve the case. See Opp’n at 12–13.
Mashable loses the Court on the requirement that there be substantial grounds for
differences of opinion. As Fregosa notes, every federal court to tackle the CIPA
applicability question has rejected Mashable’s position. Opp’n at 3–4; see, e.g., Shah v.
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United States District Court
Northern District of California
Fandom, Inc., 754 F. Supp. 3d 924, 933 (N.D. Cal. 2024) (denying motion to dismiss
claims based on pen registers collecting information such as IP addresses); Camplisson v.
Adidas Am., Inc., 2025 WL 3228949, at *8 (S.D. Cal. Nov. 18, 2025) (same). That is
hardly a substantial ground for difference of opinion. And Mashable pointing to some
California trial court decisions favoring its interpretation does not change that calculus.
See Dkts. 78, 79 (statements of recent decisions filed by Mashable); Reply (dkt. 69) at 5–6.
As Judge Lin noted in her own order denying certification on this question, “those
opinions are not controlling, even in the California state courts.” Shah v. Fandom, Inc.,
No. 24-CV-01062-RFL, 2024 WL 6903081, at *2 (N.D. Cal. Dec. 16, 2024) (recognizing
that “the state court decisions did not engage in the same extended interpretation of the
statutory terms”); see also Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011) (“Our interlocutory appellate jurisdiction does not turn on a prior court’s having
reached a conclusion adverse to that from which appellants seek relief.”).
Mashable’s other arguments are also unpersuasive. Chiefly, Mashable reiterates its
issues with the Court’s order, such as whether pen registers can capture a calling party’s
information or whether parties to the communication are exempted from liability. Reply at
6–11. But “mere disagreement with the Court’s conclusion is insufficient to show that
there is a ‘substantial ground for difference of opinion.’” See Steshenko v. Gayrard, No.
13-CV-03400-LHK, 2014 WL 7204784, at *2 (N.D. Cal. Dec. 16, 2014) (citing Couch,
611 F.3d at 633).
Mashable’s remaining points center on the novelty of the issue and potential policy
implications. But “novelty alone is insufficient,” especially when the Court finds that the
grounds for differing opinions are not substantial. Id. Moreover, while the Court
understands Mashable’s concerns regarding potential impacts to other website operators
and exposure of liability, the Court finds them to be overstated.2 In its order on
2 Organizations acting as amici have asked the Court for leave to file amicus briefs in support of
Mashable’s motion. Dkts. 57, 59. A “district court has broad discretion to permit the filing of
amicus briefs” and the Court exercises it now to grant the motions. Stanley v. Ayers, No. 07-CV-
04727-EMC, 2021 WL 121191, at *2 (N.D. Cal. Jan. 13, 2021). The Court has reviewed the
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United States District Court
Northern District of California
Mashable’s motion to dismiss, the Court was not painting on a blank canvas. Order at 4, 9
(collecting cases). It was not the first to favor Fregosa’s interpretation of the Pen Register
Act—and certainly not the last. See, e.g. Lewis v. Magnite, Inc., 2025 WL 3687546, at
*13 (C.D. Cal. Dec. 4, 2025) (rejecting motion to dismiss based on substantially the same
arguments on pen registers). Mashable’s “prophecy has not come to fruition in the last few
years since other courts have interpreted CIPA as this Court” did. Id.
For the foregoing reasons, Mashable’s motion to certify for interlocutory appeal is
DENIED.
IT IS SO ORDERED.
Dated: January 23, 2026
CHARLES R. BREYER
United States District Judge
briefs and determines that they reflect concerns similar to what Mashable has already raised—and
the Court rejects, especially in light of the unanimity of federal courts on the issue.
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