Filed 5/25/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE ex rel. KAMALA HARRIS,
as Attorney General, etc.,
        Plaintiff and Appellant,                       A139238

v.                                                     (City & County of San Francisco
DELTA AIR LINES, INC.,                                  Super. Ct. No. CGC12526741)
        Defendant and Respondent.


        In this appeal we hold that this lawsuit filed by the People, on behalf of the State
of California (the State), under the unfair competition law (Bus. & Prof. Code § 17200 et.
seq. (UCL)1), against Delta Air Lines, Inc. (Delta) is expressly preempted by the Airline
Deregulation Act of 1978 (49 U.S.C. § 41713 (b)(1)) (ADA). By its complaint, the State
seeks injunctive and monetary damages based on an allegation that Delta’s Fly Delta
mobile application is in violation of the privacy policy requirements mandated by
California’s Online Privacy Protection Act of 2003 (Bus. & Prof. Code, §§ 22575-22579;
Stats. 2003, ch. 829, § 1). Agreeing with Delta that the State’s lawsuit was expressly
preempted by the ADA, the superior court dismissed the complaint with prejudice after
sustaining Delta’s demurrer without leave to amend.2 We affirm.


1
       Because the Legislature has not given Business and Professions Code sections
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.) In this opinion, we refer to these statutory
sections in the same manner.
2
       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

                                               1
              FACTUAL AND PROCEDURAL BACKGROUND3
       A.     California’s Online Privacy Protection Act of 2003
       In 2003, the Legislature added sections 22575 through 22579 to the Business and
Professions Code, known as the Online Privacy Protection Act of 2003 (OPPA), to
address the obligations of an operator of a commercial Web site or online service
regarding the posting of a privacy policy on the Internet. (Stats. 2003, ch. 829, § 1.) The
Legislature found and declared all of the following: [¶] “(a) Each operator of a
commercial Web site or online service has an obligation to post privacy policies that
inform consumers who are located in California of the Web site’s or online service’s
information practices with regard to the consumers’ personally identifiable information
and to abide by those policies. [¶] (b) It is the intent of the Legislature to require each
operator of a commercial Web site or online service to provide individual consumers
residing in California who use or visit the commercial 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.)
       “ 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


dismissal from which an appeal lies. (See Code Civ. Proc., § 581d; Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 699 [“ ‘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’ ”].)
3
       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.)


                                               2
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.)
        Since its enactment in 2003, the OPPA has been amended three times.
(Stats. 2004, ch. 183, § 21; Stats. 2004, ch. 865, § 32; and Stats. 2013, ch. 390, § 1.) The
statute currently contains detailed requirements addressing the drafting of a privacy
policy and the posting of the privacy policy on an Internet website or online services.
(Bus. & Prof. Code, §§ 22575, 22576, 22578, subds. (a), (b).) In pertinent part, Business
& Professions Code section 22575, reads: “(a) An operator of a commercial Web site or
online service that collects personally identifiable information through the Internet about
individual consumers residing in California who use or visit its commercial Web site or
online service shall conspicuously post its privacy policy . . . . [¶] (b) The privacy policy
required by subdivision (a) shall do all of the following: [¶] (1) Identify the categories of
personally identifiable information that the operator collects through the Web site or
online service about individual consumers who use or visit its commercial Web site or
online service and the categories of third-party persons or entities with whom the
operator may share that personally identifiable information. [¶] (2) If the operator
maintains a process for an individual consumer who uses or visits its commercial Web
site or online service to review and request changes to any of his or her personally


                                              3
identifiable information that is collected through the Web site or online service, provide a
description of that process. [¶] (3) Describe the process by which the operator notifies
consumers who use or visit its commercial Web site or online service of material changes
to the operator’s privacy policy for that Web site or online service. [¶] (4) Identify its
effective date. [¶] (5) Describe how the operator responds to Web browser ‘do not track’
signals or other mechanisms that provide consumers the ability to exercise choice
regarding the collection of personally identifiable information about an individual
consumer’s online activities over time and across third-party Web sites or online services,
if the operator engages in that collection. [¶] (6) Disclose whether other parties may
collect personally identifiable information about an individual consumer’s online
activities over time and across different Web sites when a consumer uses the operator’s
Web site or service. [¶] (7) An operator may satisfy the requirement of paragraph (5) by
providing a clear and conspicuous hyperlink in the operator’s privacy policy to an online
location containing a description, including the effects, of any program or protocol the
operator follows that offers the consumer that choice.” Additionally, Business &
Professions Code section 22577 defines certain terms used in the statute in the following
manner: “(a) The term ‘personally identifiable information’ means individually
identifiable information about an individual consumer collected online by the operator
from that individual and maintained by the operator in an accessible form, including any
of the following: [¶] (1) A first and last name. [¶] (2) A home or other physical address,
including street name and name of a city or town. [¶] (3) An e-mail address. [¶] (4) A
telephone number. [¶] (5) A social security number. [¶] (6) Any other identifier that
permits the physical or online contacting of a specific individual. [¶] (7) Information
concerning a user that the Web site or online service collects online from the user and
maintains in personally identifiable form in combination with an identifier described in
this subdivision. [¶] (b) The term ‘conspicuously posted’ with respect to a privacy policy
shall include posting the privacy policy through any of the following: [¶] (1) A Web
page on which the actual privacy policy is posted if the Web page is the homepage or
first significant page after entering the Web site. [¶] (2) An icon that hyperlinks to a Web


                                              4
page on which the actual privacy policy is posted, if the icon is located on the homepage
or the first significant page after entering the Web site, and if the icon contains the word
‘privacy.’ The icon shall also use a color that contrasts with the background color of the
Web page or is otherwise distinguishable. [¶] (3) A text link that hyperlinks to a Web
page on which the actual privacy policy is posted, if the text link is located on the
homepage or first significant page after entering the Web site, and if the text link does
one of the following: [¶] (A) Includes the word ‘privacy.’ [¶] (B) Is written in capital
letters equal to or greater in size than the surrounding text. [¶] (C) Is written in larger type
than the surrounding text, or in contrasting type, font, or color to the surrounding text of
the same size, or set off from the surrounding text of the same size by symbols or other
marks that call attention to the language. [¶] (4) Any other functional hyperlink that is so
displayed that a reasonable person would notice it. [¶] (5) In the case of an online service,
any other reasonably accessible means of making the privacy policy available for
consumers of the online service.” The OPPA further provides that an operator of an
Internet website or online services is in violation of the requirement to conspicuously
post its privacy policy “if the operator fails to post its policy within 30 days after being
notified of noncompliance.” (Bus. & Prof. Code, § 22575, subd. (a).) However, the
OPPA itself does not provide for a private action or public prosecution for any violation
of its provisions.
       B.     Delta’s Fly Delta Mobile Application
       Delta is primarily an air carrier engaged in the business of providing passenger air
transportation. To facilitate access to its services by consumers and potential consumers,
Delta maintains a commercial website Delta.com accessible on the Internet. Since at
least October 2010, Delta is also “an operator of online services,” in the form of the Fly
Delta mobile application, which can be downloaded from the Internet and runs on smart
phones and other mobile devices. In its complaint, the State alleges that the Fly Delta
mobile application “may be used to check-in online for an airplane flight, view
reservations for air travel, rebook cancelled or missed flights, pay for checked baggage,
track checked baggage, access a user’s frequent flyer account, take photographs, and


                                               5
even save a user’s geo-location.”4 The Fly Delta mobile application also allegedly allows
customers to send and receive information over the Internet, and collects certain
personally identifiable information (“PII”) about individual consumers residing in
California.5 However, as of the filing of the complaint, Delta had failed to post a readily
accessible privacy policy concerning the PII collected from users of the Fly Delta mobile
application – either in the Fly Delta mobile application itself, in the platform stores from
which the mobile application could be downloaded, or on the Delta.com website. 6
Consequently, as of the filing of the complaint, the current version of the Fly Delta
mobile application, released June 15, 2012 (on Google) and June 22, 2012 (on Apple),
had been downloaded by consumers millions of time since October 2010 without the
posted privacy policy required by the OPPA. And, thus, users of the Fly Delta mobile
application were not informed that PII was collected concerning them, how Delta used
that information, or to whom that information was shared, disclosed or sold.



4
        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.
5
        In its complaint, the State alleges that the PII collected through the Fly Delta
mobile application includes (a) geo-location data (GPS); (b) photographs; (c) user’s full
name; (d) street addresses (residential and billing); (e) telephone numbers (including cell,
fax, and pager); (f) email addresses; (g) Delta Sky Miles account number and flight
information; (h) credit/debit card numbers and expiration dates; (i) date of birth;
(j) gender; (k) traveler number; (l) travel-related information, such as travel company,
emergency contacts, seating preferences, medical needs and dietary requests;
(m) passport number, nationality, country of residence; (n) corporate contract, employer
or affiliation. In its brief on appeal, the State further asserts that at the time of the filing
of its complaint, Delta’s Fly Delta mobile application might have been collecting other
PII, which was not disclosed in any privacy policy, including the collection of a universal
device identification, which “uniquely and statically identifies the mobile device and
user.”
6
        According to the State, the Delta.com website contained a privacy policy
describing some of the PII collected by the website, but the website’s privacy policy did
not mention the Fly Delta mobile application or disclose certain PII collected only by the
Fly Delta mobile application, such as geo-location data or photographs.


                                               6
       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
       On December 6, 2012, the State filed this lawsuit alleging that as of the filing of
the complaint, “the Fly Delta [mobile application] on multiple platforms still does not
have a privacy policy conspicuously posted, i.e., reasonably accessible to consumers
within the [mobile application].” The complaint’s sole cause of action alleged that Delta
was in violation of the UCL by committing “unlawful, unfair, or fraudulent business acts
and practices,” including, but not limited to, the following: (a) Delta has continued to fail
to conspicuously post a privacy policy in its Fly Delta mobile application, in violation of
the OPPA, despite receiving written notice on or about October 26, 2012, from the
Attorney General that the Fly Delta mobile application was noncompliant with Section
22575 of the OPPA, and “such unlawful failure to comply is made either (i) knowingly or
willfully; or (ii) negligently and materially, pursuant to Section 22576;” and (b) Delta has
further violated Section 22575 of the OPPA, “by failing to even comply with the website
privacy policy posted on the Delta website, in that the Fly Delta application does not
comply with the Delta website privacy policy, and “such unlawful failure to comply is
made either (i) knowingly and willfully; or (ii) negligently and materially.” In its prayer
for relief, the State sought (1) $2,500 for each violation of the UCL, proved at trial, (2)


                                              7
injunctive relief enjoining Delta from committing any acts of unfair competition, and (3)
an award of costs of the lawsuit including attorney fees and investigation costs.
       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. 7


7
        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) U.S. Senate Report No. 95-631, 2d Sess.
regarding the ADA; (2) U.S. House of Representatives Report No. 95-1779, 2d Sess.
(1978) (Conf. Report) regarding the ADA; (3) U.S. House of Representatives Report No.
98-793 (1984) regarding the ADA; (4) California Senate Committee of Judiciary,
Analysis of Assem. Bill No. 68 analyzing the OPPA; (5) Statement of Interest of United
States, filed in National Fed. of the Blind v. United Airlines, Inc. (N.D. Cal. 2011), 2011
U.S. Dist. Lexis 44366; (6) Brief for United States as amicus curiae supporting
affirmance, filed in National Fed. 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. __ [134 S.Ct.
1422]; (8) Third-Party Enforcement Complaint of the Electronic Privacy Information
Center Against Northwest Airlines, Inc. ([Department of Transportation] 9/10/04) [2004
WL 2049588]); (9) July 14, 2000, Letter from Samuel Podberesky, Assistant General
Counsel for “Aviation Enforcement and Proceeding” of the U.S. Department of
Commerce 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. 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.) 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

                                              8
                                       DISCUSSION
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.) “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.) 8
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

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, 45, fn.
9; Wittenberg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4
[“[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 [court declined to take judicial
notice of materials that were not “necessary . . .”].)
8
        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 [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”].)


                                              9
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 (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][(Wyeth)].) First, the question of preemption ‘ “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] [(English)]; 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, 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.)
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


                                             10
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)], and to enforce their own laws against deceptive trade practices. [(See Nader v.
Allegheny Airlines, Inc. (1976) 426 U.S. 290, 300.)]” (Morales v. Trans World Airlines,
Inc. (1992) 504 U.S. 374, 378 (Morales).)
       “In 1978, however, Congress, determining that ‘maximum reliance on competitive
market forces’ would best further ‘efficiency, innovation, and low 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).)]” [9] (Northwest, Inc. v. Ginsberg, supra, 134 S.Ct. at p. 1428


9
       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. 103-272, § 1(a), 108 Stats. 745.)]” (American
Airlines, Inc. v. Wolens (1995) 513 U.S. 219, 223, fn. 1 (Wolens).)


                                              11
(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, 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 “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 (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


                                             12
preempted by the ADA. [Citations.] Morales emphasized 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 or 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.) 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 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


                                               13
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’




                                              14
claims under the Illinois Consumer Fraud Act.”10 (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.)
       And, in Ginsberg, supra, 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. (Id. 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. 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. 1427.) 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. 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 pp. 1429-1433.) Reaffirming Morales’ broad interpretation
of the ADA preemption provision (id. at pp. 1428-1429, 1430), the high court concluded


10
       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, at p. 228, fn. 4.)

                                              15
that the breach of implied covenant claim “ ‘relate[d] to’ ‘[prices], routes, or services.’ ”
(Id. at pp. 1430-1431.) 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 pp. 1430-1431.) The high
court further noted that its ruling did not “leave participants in frequent 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 a 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 Stats. 87.)] Pursuant to these
provisions, the DOT regularly entertains and acts on such complaints.” (Ginsberg, supra,
at p. 1433, fn. omitted.)11


11
       Congress has also specifically authorized the DOT to investigate consumer

                                              16
       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, cert. denied (2015) __ U.S.__ [135 S.Ct. 1400] (Pac Anchor Transportation);
see Morales, supra, 504 U.S. at pp. 388-390.)12
       However, we reject the Attorney General’s argument that in our analysis, we are
required to presume Congress did not intend to preempt the 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 DiFiore v. American Airlines, Inc. (1st Cir. 2011) 646 F.3d 81, 86 (DiFiore);
Buck v. American Airlines, Inc. (1st Cir. 2007) 476 F.3d 29, 34-35 (Buck).) Our


complaints about deceptive or misleading advertising. (See FAA Modernization and
Reform Act of 2012, § 408(7), 126 Stats. 87.)
12
       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 an UCL action.


                                              17
conclusion is supported by Morales and 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; Buck, 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
NAAG fare advertising guidelines under the states’ general consumer protection laws].)
       We also reject the Attorney General’s argument that the complaint does not relate
to Delta’s services. By its complaint, the State seeks to compel Delta to maintain its Fly
Delta mobile application in compliance with the OPPA’s privacy policy requirements.
The Fly Delta mobile application, selected and designed to facilitate access to the
airline’s services, is a marketing mechanism “appropriate to the furnishing of air
transportation services.” (Wolens, supra, at p. 228.) As alleged in the complaint, the Fly
Delta mobile application, at a minimum, “may be used to check-in online for an airplane
flight, view reservations for air travel, rebook cancelled or missed flights, pay for
checked baggage, track checked baggage, and access a user’s frequent flyer account.”
Thus, it is clear, beyond cavil, that the complaint does “relate to” Delta’s services in that
the allegations have a “connection with, or reference to” Delta’s services. 13


13
        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

                                              18
       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. (Italics in
original.) 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


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 Fed. 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), although their
interpretation of federal law may be persuasive (Spellman v. Securities, Annuities & Ins.
Services, Inc. (1992) 8 Cal.App.4th 452, 459).” (Teva Pharmaceuticals USA, Inc. v.
Superior Court (2013) 217 Cal.App.4th 96, 109, fn. 2.) 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.)


                                              19
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 then follow it.’ ” However, the Attorney General’s
argument does not fully capture the scope of the compliance mechanism under the OPPA.
The State, through the OPPA, seeks to mandate Delta’s compliance with the “baseline
requirements” of the statute as applied to its Fly Delta mobile application. The law,
among other things, requires operators of online services to draft a privacy policy
describing their collection of certain categories of “personally identifiable information,”
and to provide for a “reasonably accessible means of making the privacy policy available
for consumers of the online service.” (Bus. & Prof. Code, § 22575, subds. (a), (b)(7).)
Thus, similar to the NAAG guidelines in Morales and the Illinois Consumer Fraud Act in
Wolens, the OPPA “is prescriptive; it controls the primary conduct of those falling within
its governance.” (Wolens, supra, 513 U.S. at p. 227.) It “serves as a means to guide and
police the marketing practices of the airline[ ];“the [OPPA] does not simply give effect to
bargains offered by the airline[ ] and accepted by airline customers,” as the Attorney
General suggests. (Wolens, supra, 513 U.S. at p. 228.) “This [California] law, in fact, is
paradigmatic of the consumer protection legislation underpinning the NAAG guidelines
[and the Illinois Consumer Fraud Act],” and “highlight[s] the potential for intrusive
regulation of airline business practices inherent in state consumer protection legislation
. . . .” (Wolens, supra, at pp. 227-228.)
       More significantly, like the obligations imposed by the NAAG guidelines, “[a]ll,
in all, the obligations imposed by the [OPPA] would have a significant impact upon the
airline[’s] ability to market [its] product [through its Fly Delta mobile application], and
hence a significant impact upon the fares they charge.” (Morales, supra, 504 U.S. at


                                             20
p. 390.) If each State were to require Delta to comply with its own version of the OPPA,
it would force Delta to design different mobile applications to meet the requirements of
each state. And, indeed, enforcement of the OPPA’s privacy policy requirements might
well make it impossible for an airline to use a mobile application as a marketing
mechanism at all. (Morales, supra, at pp. 389-390.) Thus, “to interpret the [ADA]
preemption provision not to reach [the OPPA] ‘could easily lead to a patchwork of state
service-determining laws, rules, and regulations,’ which would be “ ‘inconsistent with
Congress’[s] major legislative effort to leave such decisions, where federally unregulated,
to the competitive marketplace.’ ” (Air Transport Assn. of America, Inc. v. Cuomo (2d
Cir. 2008) 520 F.3d 218, 223 (per curiam); see Wolens, supra, 513 U.S. at pp. 228, 230
[“ ‘Congress could hardly have intended to allow the States to hobble [competition for
airline passengers] through the application of restrictive state laws;’ ” “the ADA . . . was
designed to promote ‘maximum reliance on competitive market forces’ ”].)
       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 rubric (‘tenuous, remote, or
peripheral’), it used as examples limitations on gambling, prostitution [and obscenity] . . .
— state regulation comparatively remote to the transportation function.” (DiFiore,
supra, 646 F.3d at p. 89, citing to Morales, supra, 504 U.S. at p. 390.) Because the
OPPA would require Delta to meet state standards regarding privacy policy requirements
in place of the market forces currently dictating Delta’s selection and design of its Fly
Delta mobile application, the effect of the OPPA would not be “tenuous, remote or
peripheral.” (Morales, supra, at p. 390.) Nor are we persuaded by the Attorney
General’s assertion that the cost to Delta to comply with the OPPA would be minimal
because within a day of the State filing its complaint Delta was able to post a privacy
policy for the Fly Delta mobile application. (See Bower v. Egyptair Airlines Co. (1st Cir.




                                             21
2013) 731 F.3d 85, 96, cert. denied (2014) ___ U.S. __ [134 S.Ct. 1788][“the ADA
preempts laws regulating the operations of airlines ‘whether at high cost or low’ ”].) 14
       We conclude our discussion by noting that we do not write on an entirely clean
slate. Several federal district courts have considered the scope of ADA preemption in the
context of state enforcement of consumer protection laws similar to the UCL for an air
carrier’s violation of its privacy policy regarding the collection of PII. All the courts
have reached the same conclusion we reach here today – the ADA preempts state-law
14
        As the high court has noted on each occasion that it has addressed the reach of the
ADA preemption provision, “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; see Morales, supra, 504 U.S. at p. 379; Ginsberg,
supra, 134 S. Ct. at p. 1433.) “Pursuant to this exclusive authority, the DOT created an
Office of Consumer Protection, a unit of Office of the Aviation Enforcement and
Proceedings, responsible [for] compliance with the DOT’s consumer protection
requirements also in charge of detecting and correcting any practices by carriers that are
inimical to the consumer interest. This office receives informal complaints from
members of the public regarding aviation consumer issues, such as deceptive
advertisement practices.” (De Jesus, supra, 532 F.Supp.2d at p. 354.) And, DOT has
apparently taken action regarding air carriers’ collection of PII and privacy policies for
the sharing and storage of PII. (See, e.g., 78 Fed. Reg. 26101-03 (May 3, 2013 [Notice of
4th Meeting of DOT Advisory Committee for Aviation Consumer Protection scheduled
for May 21, 2013, to receive comments regarding, among other things, what privacy
policies are in place concerning personally identifiable information collected in
connection with the purchase of air travel, whether information is used consistent with
those policies, and what security measures are in place to protect against unauthorized
access]; see also Order to Show Cause issued by the DOT, served May 21, 2014, at
pp. 2, 13 [DOT seeks comments on its proposed approval of an agreement adopting a
new Resolution 787 (Enhanced Airline Distribution), which establishes a process for
developing a technical standard for data exchange in the air transportation marketplace
using extensible markup language (XML), “the modern language of the internet”; DOT’s
approval was conditioned on the airlines continuing to following their privacy policies for
the sharing and storage of personal information as the “[f]ailure by an entity to follow its
established privacy policy for the sharing and storing of personal information is a
violation of 49 U.S.C. § 41712, the statute prohibiting unfair and deceptive practices”].)
In all events, the fact that DOT has not issued any regulations concerning the form and
placement of privacy policies related to an airline’s mobile application does not allow the
State to exercise its reserved Constitutional and police powers to do so, as the Attorney
General suggests.


                                             22
claims seeking to enforce air carriers’ privacy policies through consumer protection laws
similar to the UCL. (See In re JetBlue Airways Corp. Privacy Litigation
(E.D.N.Y. 2005) 379 F.Supp.2d 299 (JetBlue Airways); In re American Airlines, Inc.,
Privacy Litigation (N.D. Tex. 2005) 370 F.Supp.2d 552 (American Airlines); Copeland v.
Northwest Airlines Corp. (W.D. Tenn. 2005) 2005 U.S. Dist. Lexis 35139 (Copeland); In
re Northwest Airlines Privacy Litigation (D. Minn. 2004) 2004 U.S. Dist. Lexis 10580
(Northwest Airlines).) In these cases, the plaintiffs claimed to have been injured by an
airline’s unauthorized collection and disclosure of certain of their PII in their passenger
name records (PNRs) in violation of the airline’s stated privacy policies concerning the
sharing of PII. (JetBlue Airways, supra, at pp. 303, 304, 305; American Airlines, supra,
at p. 554; Copeland, supra, at pp. *2-3; Northwest Airlines, supra, at p. *3.) The
plaintiffs alleged the airlines’ conduct constituted deceptive trade practices under the
Texas Deceptive Trade Practices-Consumer Protection Act, the New York General
Business Law, the Minnesota Deceptive Trade Practices Act, the Tennessee Consumer
Protection Act, and similar statutes of 45 other states and the District of Columbia, which
prohibit unfair and deceptive acts and practices. (JetBlue Airways, supra, at pp. 305, 315,
fn. 12; American Airlines, supra, at p. 555; Copeland, supra, at p. *9, fn. 3; Northwest
Airlines, supra, at p. *3.) The federal district courts uniformly concluded that the
plaintiffs’ claims were expressly preempted by the ADA under Morales and Wolens.
(JetBlue Airways, supra, at pp. 315-316 ; American Airlines, supra, at p. 555; Copeland,
supra, at pp. *9-10; Northwest Airlines, supra, at pp.* 10-12.) As the federal district
court in JetBlue Airways explained, the plaintiffs’ claim concerning a violation of the
airline’s privacy policy “fits squarely within the range of state law actions that the
Supreme Court concluded, in Wolens and Morales, are expressly preempted by the ADA,
because it represents a direct effort to regulate the manner in which [the airline]
communicates with its customers in connection with reservations and ticket sales, both of
which are services provided by the airline to its customers.” (JetBlue Airways, supra, at
p. 315.) And, as further explained by another federal district court, and pertinent to our
discussion, “Congress surely intended to immunize airlines from a host of potentially-


                                             23
varying state laws and state-law causes of action that could effectively dictate how [air
lines] manage personal information collected from customers to facilitate the ticketing
and reservation functions that are integral to the operation of a commercial airline.”
(American Airlines, supra, at p. 564, fn. omitted). We find these decisions both
persuasive and dispositive of the federal preemption issue in this case. 15
       We therefore hold that state enforcement of the OPPA’s privacy policy
requirements as applied to Delta’s Fly Delta mobile application is expressly preempted
by the ADA. To compel Delta to comply with the OPPA would effectively interfere with
the airline’s “selection and design” of its mobile application, a marketing mechanism
“appropriate to the furnishing of air transportation service,” for which state enforcement



15
        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.__ [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), 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, 133 S.Ct. at pp. 1778-1779.)
        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) __ U.S.__ [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, cert. denied (2015) __ U.S. __ [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.)


                                             24
has been held to be expressly preempted by the ADA. (Wolens, supra, 513 U.S. at
p. 219; see Morales, supra, 504 U.S. at pp. 387- 390.) 16



16
        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.)] . . . 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; California Div. of Labor Standards
Enforcement v. Dillingham Constr., N.A., Inc. (1997) 519 U.S. 316, 319, 325, 330-331
(Dillingham); De Buono v. NYSA–ILA Medical and Clinical Services Fund (1997) 520
U.S. 806 (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 [it is the high court’s
“prerogative alone to overrule one of its precedents”]; Rodriguez de Quijas v.
Shearson/American Express, Inc. (1989) 490 U.S. 477, 484 [“[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. 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 and Wolens 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.)


                                            25
V.     State’s Request for Leave to Amend
       When a demurrer is sustained without leave to amend, “ ‘we decide whether there
is a reasonable possibility that the defect can be cured by amendment; if it can be, the
[superior] court has abused its discretion and we reverse; if not, there has been no abuse
of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.) As we have concluded, the allegations as currently set
out in the complaint are not sufficient to impose liability on Delta under existing statutes
or case law. The Attorney General argues, however, that the complaint can be amended
to delete any reference to the collection of passenger ticketing information, and to retain
allegations of the collection of non-ticketing PII data (geo-locational information and
photographs) and to add allegations of any additional PII data collected by the Fly Delta
mobile application, which was not disclosed in any privacy policy since the filing of the
complaint. We disagree. As explained by the high court, “the ADA’s purpose . . .
leave[s] 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.” (Wolens, supra, 513 U.S. at p. 228; italics added.) If we permit the State to
amend its complaint in the manner described, such an amendment would not 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.
VI.    Conclusion
       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.




                                              26
                                   DISPOSITION
      The order filed on May 9, 2013, is affirmed. Delta Air Lines, Inc. is awarded
costs on appeal.



                                               _________________________
                                               Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




                                          27
Trial Court:                     Superior Court, City and County of San Francisco




Trial Judge:                     Hon. Marla J. Miller




Counsel for Appellant:           Kamala D. Harris, Attorney General
State of California              Dane R. Gillette, Chief Assistant Attorney General
                                 Robert Morgester, Senior Assistant Attorney General
                                 Adam Miller, Supervising Deputy Attorney General
                                 Stacey D. Schesser, Supervising Deputy Attorney
                                 General, California Department of Justice




Counsel for Respondent:          David J. Schindler
Delta Airlines, Inc.             Jennifer C. Archie (pro hac vice admitted)
                                 Drew R. Wisniewski (pro hac vice admitted)
                                 LATHAM & WATKINS, LLP




Amicus Curiae For Respondent     Robert S. Span
Delta Airlines, Inc.:            STEINBRECHER & SPAN LLP
 Air Transport Association of
 America, Inc., doing business
 as Airlines for America




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