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 email addresses from customers paying for 

purchases with a credit card, allegedly in violation 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 complaint fails to satisfy the requirements for 

certification of a class, based on its conclusion that section 1747.08 does not prohibit the 

collection of personal identification information 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 the statute, we shall affirm the order denying 

class certification. 

Background 

 Plaintiff’s first amended complaint alleges that “plaintiff entered into a credit card 

purchase transaction with defendants, which did not involve mail order, shipping or cash 

advances. However, as part of defendants’ information capture policy, and in conjunction 

 

1

 All statutory references are to the Civil Code. 
2

with the credit card sales transaction, plaintiff was asked for personal identification 

information, in the form of her email address, by defendants’ employee attending to the 

transaction. [¶] . . . Plaintiff provided the requested personal identification information, 

which was entered into the electronic sales register at the checkout counter adjacent to 

both defendants’ employee and plaintiff.” The amended complaint continued: 

“Defendants’ conduct as alleged herein expressly violated California Civil Code section 

1747.08. Civil Code section 1747.08(a)(2) provides, in relevant part, that: [N]o person, 

firm, partnership, association, or corporation 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 person, firm, partnership, association, or 

corporation accepting the credit card writes, causes to be written, or otherwise records 

upon the credit card transaction form or otherwise. (emphasis added).” For purposes of 

this appeal, Levi’s has assumed, as shall we, that an email address is “personal 

identification information” within the meaning of this provision.2

 The amended complaint defines the purported 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 certification 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: “For purposes of this section, ‘personal 

identification information’ means information concerning the cardholder, other than 

information set forth on the credit card, and including, 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 persons using credit cards issued to a business, persons 

coming within the scope of certain exceptions contained in section 1747.08, 

subdivision (c), and persons connected in defined 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 paid for the merchandise using my credit card. 

[¶] . . . While I was standing at the cash register 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 deposition, plaintiff testified she did not recall 

whether the request was made before or after she had signed for the purchase but that it 

was before the purchased merchandise was bagged and handed to her. 

 The papers submitted in support of and in opposition to the class certification 

motion indicate that Levi’s conducts an email marketing program and has a written 

policy concerning precisely when and how store clerks should request from customers 

their email address for inclusion in the program. The documents articulating this policy 

have been filed under seal, so that we shall not here recite the particulars, but it is 

undisputed that under this policy the customer’s email address is not to be requested until 

after the credit card purchase transaction has been completed. Except to the extent that 

plaintiff’s testimony may indicate a departure from this policy in the case of her 

purchase, no evidence was submitted indicating that the policy is not universally 

followed. Levi’s submitted substantial 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 their email address. Except for 

plaintiff’s testimony, the record contains no evidence of instances in which the policy has 

not been observed. 

 In denying class certification, the trial court held that section 1747.08 prohibits 

requests for personal identification information only “as a condition to accepting the 

credit card as payment” and that, therefore, such a request made after the credit card 

transaction has been completed does not violate 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 the 
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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 incorrect interpretation 

of section 1747.08. Plaintiff argues that “[r]egardless of when the cashier obtains a credit 

card customer’s [personal identification information], whether it is prior to handing the 

customer the receipt and merchandise or a split second after, the retailer is still amassing 

unnecessary [personal identification information]. . . . [¶] Regardless of whether [Levi’s] 

requested a credit card customer’s [personal identification 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 requests 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 ‘personal 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 prohibition 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, causes to be written, or otherwise records 

upon the credit card transaction form or otherwise.” (Italics added.) 
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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 card purchase may reasonably be considered 

to have been concluded when the customer receives a receipt for the purchase, following 

acceptance of the credit card, and the merchandise has been delivered 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 address 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 the 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 only the prohibition of 

“requiring” the submission of personal identification information as a condition to 

acceptance of the credit card for payment. She argues that this phrase does not qualify the 

prohibition of “requesting” such information from credit card customers. Plaintiff argues 

that this interpretation is required by the “last antecedent rule” of statutory interpretation 

under which by virtue of the comma following the word “request” in section 1747.08, 

subdivision (a)(2) (see fn. 4, ante), the “as a condition” clause qualifies only the word 

“require.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) Under this 

reading, the statute imposes an absolute prohibition on requesting personal identification 

information from credit card 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 and 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 apply 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 inapplicable if “the context or evident meaning of 

the statute requires a different construction”].) 
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 Both exceptions apply in the present case. As our Supreme Court explained in 

Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at page 535, “the 1990 version 

of former section 1747.8 [now section 1747.08] forbade businesses from ‘requir[ing] the 

cardholder, as a condition to accepting the credit card, to provide personal identification 

information . . . .’ (Stats. 1990, ch. 999, § 1, p. 4191.) In 1991, the provision was 

broadened, forbidding businesses from ‘[r]equest[ing], or requir[ing] as a condition to 

accepting the credit card . . . , the cardholder to provide personal identification 

information . . . .’ (Stats. 1991, ch. 1089, § 2, p. 5042, italics added.) ‘The obvious 

purpose of the 1991 amendment was to prevent 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 identification 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 legislative history to the 1991 amendment,6

 the Legislature’s 

“stated purpose” of the amendment “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 information 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 identification information under the mistaken 

impression the information is required to process a credit card transaction, the Act is not 

intended to forbid merchants from obtaining such 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 that have interpreted the statute indicate that 

 

6

 (Assem. Com. on Banking, Finance and Public 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 suggesting that a credit card will not be accepted 

as payment without such information. The statute “dovetails with policy by prohibiting 

the solicitation of information obtained under the false pretense that 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, section 1747.8 [now 

section 1747.08] is designed to prevent a ‘request’ 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 making 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 Consumer Affairs, Assembly 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 clarified that a ‘request’ for personal identification 

information was prohibited if it immediately preceded the credit card transaction, even if 

the consumer’s response was voluntary and made only for marketing 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 analysis in a report of the Senate Committee on 

Judiciary noted that “the ‘problem’ the bill was designed to address was retailer’s 

practice of leading consumers ‘to mistakenly believe that [personal identification 

information] is a necessary condition to complete the credit card transaction, when, in 

fact, it is not’ ” and then using the information for the retailer’s own business purposes. 

 Several courts, both state and federal, have recognized that the Act does not 

preclude merchants from operating email marketing 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 the word “request,” “then nothing ties a 

violation of the Act to a credit card transaction at all. . . . Such a construction would mean 

that no business in California that accepts credit cards as payment can maintain a mailing 

list.” (Id. at pp. 569-570, bold deleted.) The district court rejected this interpretation of 

the statute. In denying an overly broad motion 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 limit 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] during a credit card transaction, but 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 policy, provided that credit 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 personal identification information made in 

compliance with this policy violated 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 held that the legality of the store’s action 

depended on “whether a consumer would perceive 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 SJO (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 violation of the Act would depend upon whether the 
9

individual consumer reasonably believed that providing his personal information was a 

condition of consummating the credit card transaction.”].) 

 Thus, consistent with all prior reported decisions, we conclude that the trial court 

correctly refused to certify a class in this action. In this case the merits of plaintiff’s claim 

are “enmeshed with class 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. However, since the Act is violated only if the 

request is made under circumstances in which the customer could reasonably understand 

that the email address was required to process the credit card transaction, and since such 

an understanding could not reasonably be conveyed by a request made after the 

transaction has been concluded, those requirements 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 nonconformity with company policy — i.e., prior 

to the completion of a credit card transaction. Thus plaintiff has failed to establish the 

necessary numerosity, the existence of an ascertainable class, or that her claim is typical 

of the purported class she seeks to represent. (See, e.g., id. at p. 435.) 

Disposition 

 The order denying class certification is affirmed. Levi’s motion for sanctions is 

denied. 
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 _________________________ 

 Pollak, Acting P.J. 

We concur: 

_________________________ 

Siggins, J. 

_________________________ 

Jenkins, J. 
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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.