FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAMMIE DAVIS, individually

and on behalf of all others

similarly situated,

Plaintiff-Appellant,

v.

DEVANLAY RETAIL GROUP,

INC., a Delaware corporation,

Defendant-Appellee.

No. 13-15063

D.C. No.

2:11-cv-01719-KJMCKD

ORDER CERTIFYING

A QUESTION TO THE

CALIFORNIA

SUPREME COURT

Filed May 5, 2015

Before: Consuelo M. Callahan, Milan D. Smith, Jr.,

and Paul J. Watford, Circuit Judges.

Per Curiam Order
2 DAVIS V. DEVANLAY RETAIL GROUP

SUMMARY*

Certification to the California Supreme Court

The panel certified the following question to the

California Supreme Court:

Does section 1747.08 of the California Civil

Code prohibit a retailer from requesting a

customer’s personalidentification information

at the point of sale, after a customer has paid

with a credit card and after the cashier has

returned the credit card to the customer, if it

would not be objectively reasonable for the

customer to interpret the request to mean that

providing such information is a condition to

payment by credit card?

ORDER

PER CURIAM:

This appeal requires us to resolve whether the SongBeverly Credit Card Act (Song-Beverly) prohibits a retailer

from requesting a customer’s personal identification

information (PII) at the point of sale after the customer has

paid with a credit card, even if it would not be objectively

reasonable for the customer to construe the request to mean

that providing PII is required to pay by credit card. The

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DAVIS V. DEVANLAY RETAIL GROUP 3

answer to this question could have a significant impact on the

practices of thousands of California retailers, as a broad

construction of Song-Beverly could prohibit many retailers’

practice of requesting PII from customers immediately after

they have completed a credit card transaction. We find no

controlling precedent in the decisions of the California

Supreme Court or Courts of Appeal, see Cal. R. Ct.

8.548(a)(2), and find the statute’s language and legislative

history ambiguous. For these reasons, we think it appropriate

that the state court of last resort be given an opportunity to

resolve the question in the first instance.

We therefore respectfully ask the Supreme Court of

California to exercise its discretion to decide the certified

question set forth in Part I of this order.

I. Certified Question

Pursuant to Rule 8.548 of the California Rules of Court,

we request that the California Supreme Court answer the

following question of state law:

Does section 1747.08 of the California Civil

Code prohibit a retailer from requesting a

customer’s personalidentification information

at the point of sale, after a customer has paid

with a credit card and after the cashier has

returned the credit card to the customer, if it

would not be objectively reasonable for the

customer to interpret the request to mean that

providing such information is a condition to

payment by credit card?
4 DAVIS V. DEVANLAY RETAIL GROUP

The Court may reformulate our question, and its exposition

of the issues involved should not be limited by the question’s

phrasing. Cal. R. Ct. 8.548(f)(5). We will accept and follow

the Court’s decision. Cal. R. Ct. 8.548(b)(2).

II. Background

The Appellant, Tammie Davis, visited a Roseville,

California retail clothing store owned by the Appellee,

Devanlay Retail Group, Inc. (Devanlay), on April 2, 2010. 

She brought an item to the cash register for purchase and

provided her credit card to the cashier. As Davis was placing

her credit card back in her purse, the cashier asked her

“What’s your [zip] code?” Davis did not recall whether she

had received her receipt when the request was made.

Davis filed a putative class action against Devanlay in the

Superior Court of California, County of Placer. Davis alleged

that Devanlay violated Song-Beverly, California Civil Code

§ 1747.08, by requesting and recording the PII of its retail

customers who pay with credit cards. Devanlay removed the

case to the Federal District Court for the Eastern District of

California on June 27, 2011.

Devanlaymoved for summary judgment on June 5, 2012. 

The district court granted summary judgment in favor of

Devanlay on October 17, 2012. Davis v. Devanlay Retail

Group, Inc., No. 11-CV-01719-KJM-CKD, 2012 WL

6589205 (E.D. Cal. Dec. 17, 2012) (unpublished). The

district court reasoned that, under Song-Beverly, “[t]he

permissibility of a retailer’s request for a customer’s personal

information turns on ‘whether a consumer would perceive the

store’s ‘request’ for information as a ‘condition’ of the use of

a credit card.’” Id. at *3 (quoting Florez v. Linens ‘n Things,
DAVIS V. DEVANLAY RETAIL GROUP 5

Inc., 108 Cal. App. 4th 447, 451 (2003)). The court therefore

evaluated Devanlay’s policy “under an objective standard.” 

Id. at *4. The district court found that “[v]iewed objectively,

Devanlay’s policy of waiting until the customer has her

receipt in hand conveys that the transaction has concluded

and that providing a zip code is not necessary to complete the

transaction.” Id.

A timely appeal to this court followed, raising the

question of California law described in Part I.

III. Explanation of Request for Certification

The Song-Beverly Credit Card Act “prohibits businesses

from requesting that cardholders provide ‘personal

identification information’ during credit card transactions,

and then recording that information.” Pineda v. WilliamsSonoma Stores, Inc., 51 Cal. 4th 524, 527 (2011). The Act

provides, in pertinent part:

no person, firm, partnership, association, or

corporation that accepts credit cards for the

transaction of business shall do any of the

following:

[. . .]

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
6 DAVIS V. DEVANLAY RETAIL GROUP

upon the credit card transaction form or

otherwise.

Cal. Civ. Code § 1747.08(a)(2)).

The district court in this case interpreted Song-Beverly to

prohibit a retailer from requesting PII only if an objectively

reasonable consumer would perceive the request to mean that

providing PII was necessary to complete a credit card

transaction. 2012 WL 6589204, at *4. Several other district

courts in California have also interpreted Song-Beverly to

require an objective consumer perception test.1 The

Appellant, by contrast, interprets the statute to forbid retailers

1

See Gossoo v. Microsoft Corp., No. 13-CV-2043-SVW, 2013 WL

5651271, at *4 (C.D. Cal. Oct. 9, 2013) (unpublished) (“[L]iability under

the Act depends on whether a reasonable customer would perceive the

sales associate’s request for PII as a ‘condition’ on using a credit card

. . . .”); Dean v. Dick’s Sporting Goods, Inc., No. 12-CV-7313-FMOMANx, 2013 WL 3878946, at *5 (C.D. Cal. July 26, 2013) (unpublished)

(“[W]here a reasonable consumer would not perceive the request for PII

as a condition to completing the transaction, there is no liability under the

Act.”); Yeoman v. Ikea U.S. West, Inc., No. 11-CV-701-WQH-BGS, 2012

WL 1598051, at *8 (S.D. Cal. May 4, 2012) (“A court applies an objective

test to determine whether a retailer’s request for personal identification

information would be perceived as a condition of credit card payment.”);

Gormley v. Nike Inc., No. 11-CV-893-SI, 2013 WL 322538, at *7 (N.D.

Cal. Jan. 28, 2013) (unpublished) (“[T]he Court will apply an objective

standard to determine whether Nike’s policy for requesting ZIP codes

would be perceived as a condition of credit card payment . . . .”); Gass v.

Best Buy Co., 279 F.R.D. 561, 570 (C.D. Cal. 2012) (“If the customer

reasonably perceives the request for PII as a condition of completing the

credit card transaction, the Act has been violated.”); Juhline v. Ben Bridge

Jeweler, Inc., No. 11-CV-2906-WQH-NLS, 2012 WL 3986316, at *5

(S.D. Cal. Sept. 11, 2012) (unpublished) (“A court applies an objective

test to determine whether a retailer’s request for personal identification

information would be perceived as a condition of credit card payment.”).
DAVIS V. DEVANLAY RETAIL GROUP 7

from requesting PII at the point of sale when the customer

pays by credit card, regardless of whether a customer would

reasonably perceive the request as announcing a condition of

payment by credit card. The California Supreme Court has

not addressed this issue. We find support for both the district

court’s and the Appellant’s interpretations in the decisions of

California’s Courts of Appeal, as well as in the statute’s

language and legislative history.

District courts that have applied an objective consumer

perception test in Song-Beverly cases have relied primarily

on the California Court of Appeal’s decision in Florez v.

Linens ‘n Things, 108 Cal. App. 4th 447 (2003). It is

ambiguous whether Florez endorses such a test; the case

could also plausibly be read to hold that Song-Beverly

prohibits all requests for PII “in conjunction with” credit card

transactions.

Florez held that Song-Beverly prohibits a retailer from

requesting PII at the point of sale before the customer has

announced his or her preferred payment method. Id. at 453. 

In interpreting the language of Song-Beverly, the court

observed:

[former] section 1747.8 is a consumer

protection statute, and the retailer’s request

for personal identification information must

be viewed from the customer’s standpoint. In

other words, the retailer’s unannounced

objective intent is irrelevant. What does

matter is whether a consumer would perceive

the store’s “request” for information as a

“condition” of the use of a credit card.
8 DAVIS V. DEVANLAY RETAIL GROUP

Viewed from this perspective, we think there

is nothing ambiguous or unclear about the

statute. By its plain language, it prohibits a

“request” for personal identification

information in conjunction with the use of a

credit card.

Id. at 451 (citation omitted). District courts have interpreted

this portion of Florez to mean that Song-Beverly prohibits

requests for PII only if they could reasonably be perceived as

a condition to completing a credit card transaction. But we

also find it plausible that the passage means Song-Beverly

prohibits requests for PII that are “in conjunction with the use

of a credit card,” and that the case does not define precisely

when a request is in conjunction with the use of a credit card. 

Is a request for PII “in conjunction with the use of a credit

card” if it comes immediately after an employee returns a

customer’s credit card?

We note that the Florez court does not appear to have

actually applied an objective test in deciding the case. The

cashier in Florez asked the customer for her phone number

before the customer announced she was paying by credit card. 

Id. at 449. It is not obvious that a consumer would

reasonably believe that such a request had anything to do with

her credit card when she had not yet signaled an intention

to pay by credit card. But the court nonetheless held that

Song-Beverly prohibits pre-tender requests for PII, without

addressing whether it would be objectively reasonable for a

consumer to interpret such a request to mean that providing

PII is a condition to payment by credit card.

We also note that the Florez court explicitly rejected the

defendant’s argument that “[former] section 1747.8 allows a
DAVIS V. DEVANLAY RETAIL GROUP 9

retailer to request consumer telephone numbers before the

manner of payment is known because the timing of the

request eliminates any concern that the provision of such

information is a condition of credit card payment.” Id. at 453. 

The court reasoned:

As evidenced by the 1991 amendment, section

1747.8 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. (emphases added). This passage cuts against interpreting

Florezto endorse an objective consumer perception test. The

passage suggests instead that Song-Beverlyprohibits requests

for PII that a consumer might interpret as a condition to
10 DAVIS V. DEVANLAY RETAIL GROUP

payment by credit card, even if it would not be objectively

reasonable to do so.

The ambiguous language of the statute itself offers little

guidance about whether courts should apply an objective

consumer perception test. The relevant portion of section

1747.08(a) states that businesses that accept credit cards shall

not “[r]equest, 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

. . . .” The statute’s punctuation makes it ambiguous whether

the clause “as a condition to accepting the credit card as

payment” modifies “request” in addition to modifying

“require.” If it does modify “request,” this would support the

Appellee’s position that Song-Beverly only forbids a request

for PII if the request could lead a consumer to reasonably

believe that providing PII is a condition to payment by credit

card. If the clause does not modify “request,” the plain

meaning of the statute would appear to broadly prohibit a

retailer from requesting PII when a customer pays by credit

card.

This latter interpretation finds some support in the plain

language of the statute. In White v. County of Sacramento,

31 Cal. 3d 676 (1982), the California Supreme Court

interpreted a statute with a very similar grammatical structure

to the disputed portion of Song-Beverly. The statute in White

defined “punitive action” as “any action which may lead to

dismissal, demotion, suspension, reduction in salary, written

reprimand, or transfer for purposes of punishment.” Id. at

679 (emphasis added). The defendants argued that the clause

“for purposes of punishment” modified all of the preceding

categories, including “demotion.” Id. The court rejected this
DAVIS V. DEVANLAY RETAIL GROUP 11

interpretation because it violated “the most fundamental rules

of statutory construction . . . .” Id. at 680.

The court in White applied a rule of construction called

the last antecedent rule. Under the rule, “qualifying words,

phrases and clauses are to be applied to the words or phrases

immediately preceding and are not to be construed as

extending to or including others more remote.” Id. (quoting

Bd. of Port Comm’rs v. Williams, 9 Cal. 2d 381, 389 (1937))

(internal quotation marks omitted). As applied in White, “the

rule require[d] that the phrase ‘for purposes of punishment’

be read to qualify only the word ‘transfer’ and not the words

‘dismissal,’ ‘demotion,’ ‘suspension,’ ‘reduction in salary,’

and ‘written reprimand.’” Id. As applied here, the rule of

antecedents suggests that the clause beginning “as a

condition” only modifies “require,” not “request.”

The court in White also examined the punctuation of the

statute. It reasoned that where an entire phrase is set off from

preceding terms with a comma followed by the word “or,” it

“indicates an intention to use it disjunctively so as to

designate alternative or separate categories.” Id. at 680. 

Here, “request” is set apart from “or require as a condition to

accepting the credit card as payment” by a comma. This

would normally indicate that the clause “as a condition to

accepting the credit card as payment” does not modify

“request.”2

 See id.

2

If the clause were meant to modify both “request” and “require,” the

more natural punctuation would be: “[r]equest or require, as a condition

to accepting the credit card as payment . . . .” See White, 31 Cal. 3d at 680

(“Evidence that a qualifying phrase is supposed to apply to all antecedents

instead of only to the immediately preceding one may be found in the fact

that it is separated from the antecedents by a comma.”).
12 DAVIS V. DEVANLAY RETAIL GROUP

While the reasoning in White appears to support the

Appellant’s construction of Song-Beverly’s plain language,

California Courts of Appeal have not applied the last

antecedent rule in interpreting the disputed portion of the

statute. In Absher v. AutoZone, Inc., a California Court of

Appeal held that section 1747.08(a) did not apply to a refund

for the return of merchandise purchased by credit card. 

164 Cal. App. 4th 332, 335 (2008). The court explicitly

interpreted subdivision (a)(1) to “prohibit[] merchants from

requesting or requiring credit card customers to write

personal identification information on a credit card form as

a condition precedent to accepting payment by credit card.” 

Id. at 343 (emphases added). The plaintiff in Absher urged

the court to apply the last antecedent rule, arguing that:

the placement of the commas indicates that

the qualifying phrase “as a condition to

accepting the credit card as payment” applies

only to “require,” not to “request.” Therefore,

under this punctuation-based interpretation,

subdivisions (a)(1) and (a)(2) prohibit a

merchant from requesting that a customer

provide personal information on a card form

in connection with any credit card transaction

. . . because a request for such information is

not subject to the phrase “as a condition to

accepting payment in full or in part for goods

and services.”

Id. at 344. The court rejected this interpretation, finding that

it would produce a number of anomalous results. Id. at

344–45. Absher thus counsels against interpreting SongBeverly in the way its text alone suggests it should be

interpreted.
DAVIS V. DEVANLAY RETAIL GROUP 13

Song-Beverly’s legislative history is also inconclusive. 

As originally enacted, Song-Beverly did not contain section

1747.08 or an analogous provision. Pineda, 51 Cal. 4th at

534–35. Former section 1747.8 was enacted in 1990 as “a

response to two principal privacy concerns”:

[F]irst, that with increased use of computer

technology, very specific and personal

information about a consumer’s spending

habits was being made available to anyone

willing to pay for it; and second, that acts of

harassment and violence were being

committed by store clerks who obtained

customers’ phone numbers and addresses.

Florez, 108 Cal. App. 4th at 452. The 1990 version of the

Act only forbade businesses from “requir[ing] the cardholder,

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

identification information . . . .” Pineda, 51 Cal. 4th at 535. 

It did not explicitly prohibit “requests” for such information. 

Thus, at least in 1990, the Legislature’s intent was “to protect

consumers . . . [by] prohibit[ing] businesses from ‘requiring

information that merchants, banks or credit card companies

do not require or need.’” Id. The 1990 version of the Act

appears to have been aimed at preventing retailers from

collecting personal information under the false pretense that

the information was required to complete a credit card

transaction. This provides some support for interpreting the

Act to prohibit only those requests for PII that consumers

could reasonably construe as a condition to payment by credit

card.

However, “[i]n 1991, the provision was broadened,

forbidding businesses from ‘request[ing], or requir[ing] as a
14 DAVIS V. DEVANLAY RETAIL GROUP

condition to accepting the credit card . . . , the cardholder to

provide personal identification information . . . .’” Id. The

1991 amendment was intended to “prevent[] a retailer from

making an end-run around the law by claiming the customer

furnished personal identification data ‘voluntarily,’” and “to

prevent retailers from ‘requesting’ personal identification

information and then matching it with the consumer’s credit

card number.” Florez, 108 Cal. App. 4th at 453. If these

were indeed the purposes of the 1991 amendment, it would

be somewhat unusual if the Act only prohibited pre-tender

requests, since post-tender requests would also enable the

retailer to match PII with credit card information.

We note that the legislative history is also inconclusive

regarding whether the clause “as a condition to accepting the

credit card as payment” was intended to modify “request.” 

On one hand, the Senate Committee on the JudiciaryAnalysis

of Assembly Bill No. 1477 explained that the 1991 bill

“would clarify that persons 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 451. If the Act had been drafted this way,

the clause beginning “as a condition . . .” would clearly

modify both “require” and “request.” On the other hand, the

Legislative Counsel’s Digest of the 1991 amendment states:

“[t]his bill would provide that the merchant in such a

transaction may neither request personal identification

information, nor require that information as a condition to

acceptance of the card . . . .” Id. at 453 n.5. This suggests

that the 1991 Amendment was meant instead to prohibit all

requests for PII at the point of sale if a customer uses a credit

card, because the clause “request personal identification

information” is set off by a comma from “nor require that

information as a condition to acceptance of the card.”
DAVIS V. DEVANLAY RETAIL GROUP 15

Because we find no controlling precedent, and because

the meaning of the statute is ambiguous, we are uncertain

whether the district courts are correctly applying California

law in construing Song-Beverly to require an objective test of

consumer perceptions. We therefore respectfully request that

the California Supreme Court answer the question described

in Part I.

IV. Administrative Information

The Appellant, Tammie Davis, should be deemed the

petitioner if the California Supreme Court accepts this

request. Cal. R. Ct. 8.548(b)(1).

The names and addresses of counsel are as follows:

Counsel for Plaintiff-Appellant Tammie Davis:

Gene J. Stonebarger

Stonebarger Law, A Professional Corporation

75 Iron Point Circle, Suite 145

Folsom, CA 95630

James R. Patterson

Patterson Law Group, A Professional Corporation

402 W. Broadway, 29th Floor

San Diego, CA 92101

Counsel for Defendant-AppelleeDevanlayRetail Group, Inc.:

Matthew R. Orr, Scott R. Hatch, Melinda Evans

Call & Jensen, A Professional Corporation

610 Newport Center Drive, Suite 700

Newport Beach, CA 92660
16 DAVIS V. DEVANLAY RETAIL GROUP

The clerk of this court shall submit to the California

Supreme Court, under seal of the United States Court of

Appeals for the Ninth Circuit, copies of all relevant briefs and

excerpts of record, as well as an original and ten copies of

this order, with a certificate of service on the parties. See Cal.

R. Ct. 8.548(c), (d).

This case is withdrawn from submission. Further

proceedings before us are stayed pending the California

Supreme Court’s decision. The parties shall notify the clerk

of this court within seven days after the California Supreme

Court accepts or declines this request, and again within seven

days if the California Supreme Court issues a decision. The

panel retains jurisdiction over further proceedings.

IT IS SO ORDERED.