1 Filed 5/19/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

STACIE HARROLD, Plaintiff and Appellant,

v. LEVI STRAUSS & CO. et al., Defendants and Respondents. A142747

(Napa County Super. Ct. No. 26-60136)

Plaintiff Stacie Harrold appeals from an order denying her motion to certify a class in her action against Levi Strauss & Co. and Levi’s Only Stores, Inc. (collectively, Levi’s) for requesting and recording ema il addresses from customers paying for purchases with a credit card, allegedly in vi olation of the Song-Beverly Credit Card Act of 1971 (Civ. Code, § 1747 et seq.) 1 (the Act), specifically section 1747.08. The trial court determined that plaintiff’s complain t fails to satisfy th e requirements for certification of a class, based on its conclusi on that section 1747. 08 does not prohibit the collection of personal identification informat ion once a credit card transaction has been concluded. The appeal turns on the correctness of this interpretation of the Act. Since we conclude the trial court correctly interpreted th e statute, we shall affirm the order denying

class certification. Background Plaintiff’s first amended complaint allege s that “plaintiff entered into a credit card purchase transaction with defe ndants, which did not involve mail order, shipping or cash advances. However, as part of defendants’ in formation capture polic y, and in conjunction

1 All statutory references are to the Civil Code.2 with the credit card sales transaction, plai ntiff was asked for personal identification information, in the form of her email addr ess, by defendants’ employee attending to the transaction. [¶] . . . Plainti ff provided the requested persona l identification information,

which was entered into the electronic sales re gister at the checkout counter adjacent to both defendants’ employee an d plaintiff.” The amende d complaint continued: “Defendants’ conduct as alleged herein expr essly violated California Civil Code section

1747.08. Civil Code section 17 47.08(a)(2) provides, in releva nt part, that: [N]o person, firm, partnership, association, or corporatio n that accepts credit cards for the transaction

of business shall . . . request , or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the perso n, firm, partnership, association, or corporation accepting the credit card writes, causes to be written, or otherwise records upon the credit card transac tion form or otherwise. (emphasis added).” For purposes of this appeal, Levi’s has assumed, as sha ll we, that an email address is “personal

identification information” within the meaning of this provision. 2 The amended complaint defines the purp orted class as “all persons from whom defendants requested and recorded personal identification information in conjunction with a credit card purchase transaction at a California retail store during [a defined time period].” 3 In support of her motion for certificati on of such a class plaintiff submitted her own declaration in which she stated: “On July 14, 2012, I visited the Levi’s store in Napa, California. [¶] . . . On that occasion, after selecting the items that I intended to

2 Section 1747.08, subdivision (b) provides: “F or purposes of this section, ‘personal identification information’ me ans information concerning the cardholder, other than information set forth on the credit card, and in cluding, but not limited to, the cardholder’s address and telephone number.” (See Powers v. Pottery Barn, Inc. (2009) 177 Cal.App.4th 1039 [email addresses].)

3 The purported class excluded pe rsons using credit cards issu ed to a business, persons coming within the scope of certain exceptions contained in section 1747.08, subdivision (c), and persons connected in define d ways to Levi’s and its affiliates. None of these exclusions is relevant to the present controversy.3 purchase, I proceeded to the cashier’s section of Levi’s store to pay for the merchandise using a credit card. After I provided the items to the cashier at the register, the cashier informed me of the amount due. I then pa id for the merchandise using my credit card. [¶] . . . While I was standing at the cash regi ster for my credit card purchase transaction, Levi’s cashier requested my email address. Per the cashier’s request, I provided the cashier with my email address.” At her depo sition, plaintiff testified she did not recall whether the request was made before or afte r she had signed for th e purchase but that it was before the purchased merchand ise was bagged and handed to her. The papers submitted in su pport of and in opposition to the class certification

motion indicate that Levi’s conducts an email marketi ng program and has a written policy concerning precisely wh en and how store clerks sh ould request from customers their email address for inclusion in the prog ram. The documents ar ticulating this policy have been filed under seal, so that we sha ll not here recite the particulars, but it is undisputed that under this po licy the customer’s email address is not to be requested until after the credit card purchase transaction has b een completed. Except to the extent that plaintiff’s testimony may indicate a depart ure from this policy in the case of her purchase, no evidence was submitted indicati ng that the policy is not universally

followed. Levi’s submitted substa ntial evidence to the effect that employees are trained to adhere to this policy and that they “always wait[] until the receipt is printed, handed over to the customer and the merchandise is bagged before providing customers the opportunity to join the email program” and requesting th eir email address. Except for plaintiff’s testimony, the record contains no evidence of inst ances in which the policy has

not been observed. In denying class certificati on, the trial court held that section 1747.08 prohibits requests for personal identification informa tion only “as a conditi on to accepting the credit card as payment” and that, therefore, such a request made after the credit card transaction has been completed does not violat e the statute. Thus, class certification is not appropriate, the court ruled, because plaintiff failed to show that there is a numerous class of persons whose email addresses have been obtained in violation of the terms of the4 statute. Moreover, since plaintiff has alleged that her email address was requested before the transaction was completed, contrary to the policy that the evidence shows was applied to all other Levi’s customers, her claim is not typical of the claims of other purported

class members. Plaintiff has timely appealed from the order denying class certification. 4

Discussion

Plaintiff contends that the trial court’s ruling is based on an in correct interpretation of section 1747.08. Plaintiff argues that “[r] egardless of when the cashier obtains a credit card customer’s [personal identification inform ation], whether it is prior to handing the customer the receipt and merchandise or a spli t second after, the retail er is still amassing unnecessary [personal identification information] . . . . [¶] Regardless of whether [Levi’s] requested a credit card customer’s [personal id entification information] at the beginning, middle, or end of the transaction, it still violated section 1747 .08. A violation of

section 1747.08 occurs when a retailer re quests and records [personal identification information] from a customer who pays by credit card.” “The Song-Beverly Credit Card Act of 1971 . . . is ‘designed to promote consumer protection.’ [Citation.] One of its provisions, section 1747.08, prohibits businesses from requesting that cardholders provide ‘p ersonal identification information’ during credit

card transactions , and then recording that information.” ( Pineda v. Williams-Sonoma Stores, Inc . (2011) 51 Cal.4th 524, 527, italics added, citing Civ. Code, § 1747.08, subd. (a)(2).) 5 We agree with plaintiff that the pr ohibition applies at all times during and

4 The order is an appealable order. ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

5 Section 1747.08, subdivision (a) provides, in pertinent part: “[N]o person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall . . . . [¶] . . . [¶] (2) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services , the cardholder to provide personal identification information, which the person, firm, partnership, association, or corporation accepting the credit card writes, caus es to be written, or otherwise records upon the credit card transaction form or otherwise.” (Italics added.)5 prior to the completion of a credit card transaction. However, there is no support for her contention that the prohibition continues beyond that point. Plaintiff does not dispute that a credit ca rd purchase may reasonably be considered

to have been concluded when the customer re ceives a receipt for th e purchase, following acceptance of the credit card, and the mercha ndise has been deliver ed to the customer. Levi’s policy does not permit the sales clerk to ask the customer about joining its email program or to request the customer’s email ad dress prior to that point. The transaction having been concluded, such a request cannot reasonably be considered—by the customer or by anyone else—as a condition of acceptance of th e credit card as a form of payment. Plaintiff contends that the phrase “as a condition to accepting the credit card as payment in full or in part for goods or services” qualifies onl y the prohibition of “requiring” the submission of personal iden tification informati on as a condition to acceptance of the credit card for payment. Sh e argues that this phrase does not qualify the prohibition of “requesting” su ch information from credit card customers. Plaintiff argues that this interpretation is required by the “las t antecedent rule” of statutory interpretation under which by virtue of the comma followi ng the word “request” in section 1747.08, subdivision (a)(2) (see fn. 4, ante ), the “as a condition” clau se qualifies only the word “require.” ( White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) Under this reading, the statute imposes an absolute pr ohibition on requesting personal identification

information from credit car d customers. However, as White recognizes, there are two exceptions to this rule of statutory construction. First, the rule does not apply if the clause in question is equally applicable to the words before an d after the comma. ( Id. at pp. 680- 681.) And secondly, the rule does not apply ‘ “[w]here the sense of the entire act requires that a qualifying word or phrase a pply to several preceding wo[r]ds.’ ” ( Id. at p. 681; see also the second case on which plaintiff relies, Demchuk v. State Dept. of Health Services (1991) 4 Cal.App.4th Supp. 1, 4 [rule inapplicab le if “the context or evident meaning of the statute requires a different construction”].)6 Both exceptions apply in the present ca se. As our Supreme Court explained in

Pineda v. Williams-Sonom a Stores, Inc., supra, 51 Cal.4th at page 535, “the 1990 version of former section 1747.8 [now section 17 47.08] forbade businesse s from ‘requir[ing] the cardholder, as a condition to accepting the cr edit card, to provide personal identification information . . . .’ (Stats. 1990, ch. 999, § 1, p. 4191.) In 1 991, the provision was broadened, forbidding businesses from ‘[ r ] equest [ ing ], or requir[ing] as a condition to accepting the credit card . . . , the cardhol der to provide pers onal identification information . . . .’ (Stats. 1991, ch. 1089, § 2, p. 5042 , italics added.) ‘The obvious purpose of the 1991 amendment was to pr event retailers from “requesting” personal identification information and then matching it with the consumer’s credit card number.’ [Citation.] ‘[T]he 1991 amendment prevents a retailer from making an end-run around the law by claiming the customer furnished personal identifica tion data “voluntarily.” ’ ” Thus, the very purpose of adding “request” to the statute was to apply the prohibition against conditioning the acceptance of a customer’s credit card to a request as well as to a requirement. The clause clearly was intended to apply to both a request and a requirement. As the Court of Appeal recognized in Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 342, citing legisla tive history to the 1991 amendment, 6 the Legislature’s “stated purpose” of the amendmen t “was to clarify that merchants ‘may neither require

nor request , as a condition to accepting the credit card, the taking or recording of personal identification informa tion from the cardholder.’ ” ( Id. at p. 342, italics added.) Moreover, while the statute is intended to protect consumer privacy and to prohibit merchants from obtaining personal identif ication information under the mistaken impression the information is re quired to process a credit card transaction, the Act is not intended to forbid merchants from obtaining su ch information voluntarily, if the customer

understands that the information need not be disclosed in order to use a credit card. Neither the legislative history nor the cases th at have interpreted the statute indicate that

6 (Assem. Com. on Banking, Finance and P ublic Indebtedness, Rep. on Assem. Bill No. 1477 (1991-1992 Reg. Sess.) May 13, 1991.)7 the Act prohibits merchants from requesting personal identification information if the request is not made under circumstances sugg esting that a credit card will not be accepted as payment without such info rmation. The statute “doveta ils with policy by prohibiting

the solicitation of information obtained under the false pretense th at the transaction cannot or will not be completed without it.” ( Florenz v. Linens ‘N Things, Inc. (2003) 108 Cal.App.4th 447, 452.) “As evidenced by the 1991 amendment, se ction 1747.8 [now section 1747.08] is designed to prevent a ‘re quest’ for personal information, because a customer might perceive that request as a condition of credit card payment. In effect, the 1991 amendment prevents a retailer from ma king an end-run around the law by claiming the customer furnished personal identification data ‘voluntarily.’ In fact, the Enrolled Bill Report of the California Department of C onsumer Affairs, Asse mbly Bill No. 1477 (1991-1992 Reg. Sess.), specifically addressed this problem, noting ‘[t]his bill would prohibit requesting or requiring that information.’ As we read it, the legislative intent suggests the 1991 amendment simply clarifie d that a ‘request’ for personal identification information was prohibited if it immediately pre ceded the credit card tr ansaction, even if the consumer’s response was voluntary an d made only for mark eting purposes.” ( Id. at p. 453.) And more recently in Apple, Inc. v. Superior Court (2013) 56 Cal. 4th 128, 139- 140, our Supreme Court observed that an anal ysis in a report of the Senate Committee on Judiciary noted that “the ‘problem’ the b ill was designed to address was retailer’s practice of leading consumers ‘to mistaken ly believe that [personal identification information] is a neces sary condition to complete the cr edit card transaction, when, in fact, it is not’ ” and then us ing the information fo r the retailer’s own business purposes. Several courts, both state and federal, have recognized that the Act does not preclude merchants from operating email mark eting programs and requesting consumers to voluntarily provide their email addresses or other identification information for use in such programs. In Florenz, the Court of Appeal expressly noted “that nothing prevents a retailer from soliciting a consumer’s address and telephone number for a store’s mailing list, if that information is provided voluntarily.” ( Florenz v. Linens ‘N Things, Inc., supra, 108 Cal.App.4th at p. 451.) In Gass v. Best Buy Co., Inc. (C.D. Cal. 2012) 279 F.R.D.8 561, the district court embraced that view, noting that if the phrase “as a condition to accepting the credit card” does not apply to th e word “request,” “then nothing ties a

violation of the Act to a credit card transacti on at all. . . . Such a construction would mean that no business in California that accepts cr edit cards as payment can maintain a mailing list.” ( Id. at pp. 569-570, bold delete d.) The district court reject ed this interpretation of the statute. In denying an overly broad motio n for class certification the court held that the statute is violated only if the request is made under circumstances in which the customer could perceive the request for personal identification as a condition of completing a credit transaction. Indeed, the court did not lim it the circumstances under which the request may properly be made to requests following completion of the credit card transaction, but ruled that if “[a] business requests a customer’s [personal identification information] duri ng a credit card transaction, bu t does so in a manner such that no reasonable customer could perceive the request as a condition for the business accepting the credit card,” the Act is not violated. ( Id. at pp. 570-572.) In Gormley v. Nike, Inc. (N.D.Cal., Jan. 28, 2013, No. C 11-893 SI) 2013 U.S. Dist. Lexis 11278, the retailer’s policy, very similar to Levi’s polic y, provided that cred it card customers were not to be asked for personal identification information “until after the credit card was authorized and the receipt was printing” ( id. at p. *5). The district court rejected the plaintiffs’ contention that requests for pers onal identification information made in compliance with this policy viol ated the statute and that the Act prohibits any request for such information in conjunction with a credit card transaction. The court thus denied a

motion for class certification on the ground that the named plaintiffs, who alleged that the policy had not been observed when their personal information was requested, were not typical of the purported class. The court he ld that the legality of the store’s action depended on “whether a consumer would percei ve the store’s request . . . as a condition of the use of a credit card.” ( Id. at pp. **24-25; see also, e.g., Rothman v. General Nutrition Corp. (C.D.Cal., Nov. 17, 2011 , No. CV 11-03617 SJ O (RZx)) 2011 U.S.Dist. Lexis 134515, pp. **16-17 [“[I] f the personal information is requested as opposed to required, whether there has been a violati on of the Act would de pend upon whether the9 individual consumer reasonabl y believed that providing his personal information was a condition of consummating the cr edit card transaction.”].) Thus, consistent with all prior reported de cisions, we conclude that the trial court correctly refused to certify a clas s in this action. In this case the merits of plaintiff’s claim

are “enmeshed with cla ss action requirements.” ( Linder v. Thrifty Oil Co., supra , 23 Cal.4th 429, 443.) Were plaintiff correct that Levi’s violated the Act by requesting email addresses from any customer using a credit card for payment, regardless of whether the credit card had already been approved and the transaction concluded, the requirements of a class action might well be satisfied. Howe ver, since the Act is violated only if the request is made under circumstances in wh ich the customer coul d reasonably understand that the email address was required to process the credit card transac tion, and since such an understanding could not reasonably be conveyed by a request made after the transaction has been concluded, those require ments are not met. Plaintiff has made no showing that there are numerous, or indeed any, customers other than herself from whom Levi’s has requested email addresses in nonc onformity with company policy — i.e., prior to the completion of a credit card transaction. Thus plaintiff has failed to establish the necessary numerosity, the existen ce of an ascertainable class, or that her claim is typical of the purported class she seek s to represent. (See, e.g., id. at p. 435.) Disposition The order denying class certification is a ffirmed. Levi’s motion for sanctions is

denied.10 _ ____________ ____________ Pollak, Acting P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.11 Trial Court: Napa County Superior Court

Trial Judge: Hon. Diane M. Price

Counsel for Plaintiff and Appellant: STONEBARGER LAW, APC Gene J. Stonebarger PATTERSON LAW GROUP James K. Patterson

ATKINS & DAVIDSON, APC Todd C. Atkins for The Consumer Federation of California as amicus curiae on behalf of appellant.

Counsel for Defendants and Respondents: SHEPPARD, MULLIN, RICHTER & HAMPTON LLP P. Craig Cardon Brian R. Blackman, Elizabeth S. Barcohana

NORTON ROSE FULBRIGHT Jeffrey B. Bargulies and Lauren A. Shoor for California Retailers Association as amicus curiae on behalf of respondents.