Filed 7/20/15 Adjamian v. L’Oreal 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ALLEN ADJAMIAN,

Plaintiff and Appellant,

v.

L ‘OREAL USA S/D, INC.,

Defendant and Respondent.

B257403

(Los Angeles County

Super. Ct. No. BC504368)

APPEAL from an order of the Superior Court of Los Angeles County, 

Elihu M. Berle, Judge. Affirmed.

Wucetich & Korovilas, Jason M. Wucetich and Dimitrios V. Korovilas for 

Plaintiff and Appellant.

Paul Hastings, Dennis S. Ellis, Katherine F. Murray and Nicholas J. Begakis for 

Defendant and Respondent.

_______________________________________
2

Allen Adjamian, on behalf of himself and others similarly situated, filed a class 

action complaint against L’Oreal USA S/D, Inc., owner and operator of Kiehl’s Since 

1851 retail stores.

1

 Adjamian alleges Kiehl’s store employees requested personal 

identification information (PII) from customers in connection with credit card 

transactions in violation of the Song–Beverly Credit Card Act of 1971 (Civ. Code, 

§ 1747 et seq.) (the Act). Adjamian appeals the denial of his motion for class 

certification.

Adjamian contends (1) the trial court erroneously construed Civil Code 

section 1747.08, subdivision (a)(2) and denied class certification based on its erroneous 

construction of the statute, and (2) he presented sufficient evidence of a policy or 

practice by Kiehl’s of violating the statute. We conclude Adjamian has shown no 

prejudicial error. The trial court properly construed the statute. Substantial evidence 

supports the court’s finding, by a preponderance of the evidence, that individual issues 

will predominate on the question of liability. We therefore affirm the denial of class 

certification.

FACTUAL AND PROCEDURAL BACKGROUND

1. Adjamian’s Allegations

Adjamian sued L’Oreal in March 2013. He filed a first amended complaint in 

August 2013 and a second amended complaint in September 2013. Adjamian alleged

he bought merchandise from a Kiehl’s store in Canoga Park in February 2013 using 

a credit card. Adjamian alleged that, during the transaction, the sales clerk asked for his

home address, telephone number, and e-mail address. He provided the requested 

information. Adjamian alleged he “believes that information was recorded by” the sales 

clerk. When the clerk gave Adjamian his receipt, “some of the [PII] requested and 

recorded by [the Kiehl’s’] employee was printed on the receipt.”

Adjamian alleged Kiehl’s “engages in a pattern and practice of knowingly 

requesting and recording [PII] of its customers at all its retail stores in California during 

 

1 We refer to the defendant interchangeably as Kiehl’s and L’Oreal throughout this 

opinion.
3

credit card transactions, including their addresses, e-mail addresses and/or phone 

numbers . . . . ” Adjamian alleged Kiehl’s uses the PII “for unlawful purposes with the 

objective of increasing sales from repeat customers and to generate additional revenue 

for the company.” Adjamian also alleged Kiehl’s “shares or sells the [PII] it collects 

from consumers to third parties.”

Adjamian alleged a single count for violation of Civil Code section 1747.08,

subdivision (a). He sought civil penalties for each violation under Civil Code 

section 1747.08, subdivision (e), declaratory and injunctive relief, and attorney fees.

2. The Motion for Class Certification 

a. Adjamian’s Moving Papers

In January 2014 Adjamian moved for class certification. He sought to certify 

a class of “[a]ll California citizens who purchased merchandise with a credit card at 

[a] Kiehl’s Since 1851 store operated by [L’Oreal] in California, from March 29, 2012, 

to the present, who were requested to and did provide personal identification 

information, including but not limited to their physical address, e-mail address, 

telephone number, and/or zip code, which was then recorded by [Kiehl’s] during or in 

conjunction with the credit card transaction, other than exclusively for shipping, 

delivery, servicing, installation, or special order purposes.” Adjamian also sought to 

certify a subclass limited to purchases between March 29, 2012, and August 31, 2013,2

but otherwise the same as the larger class.

Adjamian contended that Kiehl’s had a common “policy and practice of

unlawfully recording customers’ [PII] during credit card transactions, in violation of 

[Civil Code] § 1747.08(a)” and that class certification was appropriate. Adjamian filed 

his own declaration and declarations by his counsel, attaching documents L’Oreal had

produced in discovery. In his declaration, Adjamian expanded on the factual allegations 

 

2

In the spring of 2013 Kiehl’s changed its point-of-sale software. (Adjamian 

believed -- apparently erroneously -- that this software change happened in 

September 2013.) In September 2013 Kiehl’s instituted a rewards program. Adjamian 

contends these changes did not render Kiehl’s’ practices legal but he proposed 

a subclass in an abundance of caution.
4

of his complaint. Adjamian stated the Kiehl’s sales clerk “recorded some or all of the 

[PII] I provided by typing it into the electronic cash register system.” Adjamian 

continued, “The sales clerk then completed the sale, and provided me with a credit card 

transaction receipt that, in addition to printing my credit card sale information, also 

printed some of my [PII] that had been collected, including my name, phone number, 

and e-mail address.” Adjamian attached a copy of the receipt as an exhibit. The receipt 

says “STORE RECEIPT COPY.” It seems to bear no signature. At the bottom of the 

receipt Adjamian’s name, home telephone number, and e-mail address appear. In his 

declaration, Adjamian stated the sales clerk never told him why his PII was being 

collected or how it would be used. He said the clerk never told him “that providing my 

[PII] was optional or to be done on a voluntary basis only.” Adjamian stated, “It 

seemed to me as though providing my personal information to the sales clerk was 

required and mandatory to the transaction because the clerk requested and recorded the 

information at the cash register while the transaction was pending, prior to providing me 

my receipt.”

Adjamian’s attorney submitted excerpts from Kiehl’s’ employee manuals and 

training documents. One manual stated, “We attempt to create an ongoing relationship 

by capturing every customer’s information in MARS.”3 A training document states, 

“Remember to link every sale to an EXISTING customer or to enter information for 

a NEW customer (both email and mailing address).” Kiehl’s’ training materials also 

emphasize the importance of asking for and recording customers’ personal contact 

information.

In support of his motion for class certification, Adjamian also requested judicial 

notice of legislative history materials and orders by trial courts in other cases.

b. L’Oreal’s Opposition to the Class Certification Motion

L’Oreal argued in opposition to the motion that Civil Code section 1747.08, 

subdivision (a)(2) prohibits requesting or requiring PII only in a manner that the 

 

3 MARS is the point-of-sale software Kiehl’s began using in the spring of 2013.
5

customer reasonably would perceive as imposing a condition on accepting a credit card 

payment. It asserted there was no evidence Kiehl’s had such a policy, so there was no 

substantial evidence that common issues predominated. L’Oreal submitted declarations 

from Kiehl’s’ director of retail operations, Anthony De Paola, and the assistant manager 

of the Canoga Park store, Marina Hovhannisyan.

De Paola stated Kiehl’s has had a mailing list since 2006 called “Kiehl’s 

Family”: customers can sign up to get information about products, special offers, and 

store events. In September 2013 Kiehl’s began a rewards program: customers who join 

can get discounts and free products. Kiehl’s also has a recycling program: customers 

who choose to participate provide their names and a mailing or e-mail address so 

Kiehl’s can track their participation. Until the spring of 2013 Kiehl’s used point-of-sale 

software called CRS Retail Store Express. When a customer approached the register, 

the sales clerk asked if the customer was a member of Kiehl’s Family. If so, the clerk 

looked up the customer by name. If not, “the consumer could voluntarily provide 

information to become a member.” If the customer then paid by credit card, the CRS 

system printed two receipts: one marked “store receipt” for the customer to sign and 

return to the clerk, and a second for the customer to keep. The store receipt reflected 

the customer’s contact information if the customer already had provided it to join 

Kiehl’s Family, on that day or on a prior occasion. The receipt given to the customer 

displayed no customer information. Once Kiehl’s began using the MARS software, 

neither the store receipt nor the customer receipt listed any customer information.

De Paola stated in his declaration that the receipt Adjamian attached to his 

declaration was “unusual.” The receipt says “store receipt”; Adjamian should have 

signed it and returned it to the clerk. After Adjamian filed his declaration in this case, 

Kiehl’s searched its records and could not find any original store receipt signed by 

Adjamian for his purchase in February 2013.

De Paola explained that Kiehl’s contracts with another company, Harte-Hanks 

Data Technologies, to maintain and store its customer information and to send mail to 

customers. Harte-Hanks does not sell or share Kiehl’s information with anyone. 
6

Harte-Hanks’ database does not identify which Kiehl’s customers paid by credit card. 

There is no way to tell from the database whether a customer whose name and address 

appeared on the store’s copy of a receipt provided that information on the day he or she

shopped at Kiehl’s or on an earlier date.

Hovhannisyan stated in her declaration that she has worked for Kiehl’s since 

2008, first as a sales clerk and then -- as of September 2012 -- as an assistant store 

manager. From September 2012 to July 2013, Hovhannisyan worked under manager 

Marissa Cabanilla at the Canoga Park store. Between July 2013 and December 2013 

Hovhannisyan essentially was the manager for that store because there was no manager. 

Hovhannisyan watched Cabanilla train new employees and Hovhannisyan then trained 

new employees the same way. The receipt Adjamian attached to his declaration lists 

“Morales” as the sales clerk. Cabanilla or Hovhannisyan, or both of them, trained 

Morales.

Kiehl’s sales clerks are trained “to welcome the customers as they enter the store 

and to engage them as soon as possible about their needs and any questions they might 

have.” Clerks “offer each customer a seated consultation” and “appropriate samples.” 

Kiehl’s trains its clerks “to open relationships with customers to allow them to follow 

up regarding customer satisfaction, product use experience and ongoing skincare 

needs.” Clerks are trained “to obtain the customers’ contact information, if customers 

are willing to provide it, as soon as possible during the customer’s visit to Kiehl’s.” 

Hovhannisyan encourages her clerks “to inquire as to whether a customer is a member 

of Kiehl’s [F]amily during their initial contact with the customer when they are 

welcoming the customer into the store.” If the customer has not already given Kiehl’s 

his or her contact information, clerks are to ask the customer if he or she is willing to 

provide that information “for follow up.” According to Hovhannisyan, “[t]his often 

happens during the seated skin consultation . . . long before the customer decides to 

make a purchase.” Hovhannisyan always tells her clerks “that they need to express to 

customers that providing personal information is optional and that they should always 

provide a reason as to why Kiehl’s is requesting the information.” Kiehl’s’ 
7

point-of-sale software “has nothing to do with [her] suggestion to [sales clerks] to 

request customer contact information as early as possible during the customer’s visit to 

Kiehl’s.”

Hovhannisyan stated in her declaration that Adjamian’s “description of his 

shopping experience” at the Canoga Park Kiehl’s store and “the treatment [he] says he 

received during his visit” was “highly unusual.” Adjamian’s statement that he was 

asked for his personal information at the cash register when he presented his items for 

purchase “would be exactly contrary to the way [clerks] at the Kiehl’s Canoga Park 

store are trained.” Hovhannisyan stated Adjamian should have been offered a skin 

consultation and product samples, and when he reached the counter to pay for the items 

he should have been asked if he was a member of Kiehl’s Family. If he said no, the 

clerk “would have been trained to ask [him] if he wished to become a member,” and if 

he said yes the clerk “would then ask how [he] wished to be contacted.” Hovhannisyan 

stated, “What Mr. Adjamian describes in his Declaration is in my mind is not something

we would do at the Kiehl’s Canoga Park store.” Hovhannisyan added, “[Sales clerks] 

always ask for permission when requesting a customer’s contact information.” Finally, 

Hovhannisyan noted the receipt Adjamian attached to his declaration was the store’s 

copy for the customer to sign and the store to keep, “not a receipt that is normally 

provided to Kiehl’s customers.”

In support of its opposition to the class certification motion, L’Oreal also 

submitted excerpts of Adjamian’s testimony at his deposition in March 2014. Contrary 

to his statement in his declaration dated January 31, 2014, that “it seemed to [him] as 

though providing [his] personal information to the sales clerk was required and 

mandatory to the transaction,” Adjamian testified at his deposition that he did not feel 

that way.4 L’Oreal also asked Adjamian in his deposition about his earlier lawsuits 

 

4 When asked “Did you feel that if you didn’t give them the information for their 

database, you would not be able to purchase the items?” Adjamian replied “I don’t 

recall feeling that way.” When asked “Do you remember thinking if I don’t give this 

information, I can’t use my credit card to pay?” Adjamian answered, “I don’t recall such 
8

against two other retailers for violations of the Song-Beverly Credit Card Act (in which 

the same counsel represented him). L’Oreal’s attorney asked Adjamian whether -- in 

light of those lawsuits -- he knew when he shopped at Kiehl’s that he did not have to 

provide any personal information to use his credit card. Adjamian first answered that he 

“might have been” familiar with the law. Then he testified that he “believe[d] [he] had

[the] knowledge” that the statute prohibits retailers from asking for PII “in connection 

with a credit card transaction.” Two transcript pages later, however, Adjamian testified 

that when he went up to the Kiehl’s counter, he had forgotten what the law prohibited.

Adjamian testified at his deposition that he has never spoken with anyone else 

who shopped at Kiehl’s and that he does not know of anyone else who claims Kiehl’s 

violated the Act.

In its opposition papers, L’Oreal argued that whether a violation occurred 

depended on whether the individual consumer reasonably believed that providing his or 

her personal information was a condition of using a credit card and that individual 

issues of liability therefore predominated. It contended Adjamian also failed to satisfy 

the other requirements for class certification.

3. The Hearing

On May 2, 2014, the trial court heard argument on the motion for class 

certification. Adjamian’s counsel argued that the phrase in the Act “as a condition to 

accepting [a] credit card as payment” applies only to a retailer’s “requir[ing]” of PII, not 

to its “request” for PII. In other words, counsel contended the “as a condition” limiting 

language applies to a retailer who “requires” PII but not to one who only “requests” PII. 

Counsel argued the statute “prohibits a requesting and record of [PII] during or in 

conjunction with” or “during” “the use of a credit card.” Therefore, counsel argued, the 

 

a thinking like that.” When asked “So do you recall feeling that if you didn’t provide 

your information you wouldn’t be able to go forward with your transaction?” Adjamian 

responded, “I don’t recall feeling that.” Again Adjamian was asked, “At the time that 

you were making your purchase and your request for information was requested of you, 

did you believe that if you did not provide the information you would not be able to 

make your purchase?” He answered “I don’t recall believing that.”
9

Act prohibits a retailer from asking a customer who pays with a credit card for PII at 

any point “until after the transaction is over and [the retailer has] hand[ed] over the 

receipt.” The trial court asked if Adjamian contended a retailer may not even ask 

a customer who approaches the register “would you like to join our reward club?” and if 

it must “wait until the transaction is complete and the customer has the receipt in hand 

and the customer wants to leave and the store cashier should say ‘Wait, Wait, Wait, 

Don’t leave yet, I want to talk to you? ’ ” Adjamian’s counsel said yes: that is what the 

statute requires. Counsel suggested retailers may set up a kiosk, for example, by the 

entrance to the store, away from the cash register, to handle loyalty and rewards 

programs.

L’Oreal’s counsel argued that it did not “matter which way the 

court . . . interpret[ed] the statute.” In any event, counsel contended, the court should 

deny class certification “because of the way Kiehl’s does business.” Counsel asserted 

Kiehl’s asks customers for PII when it gives them a product sample or when the 

customer wants to join Kiehl’s Family. Counsel said Kiehl’s “relies on personalized 

interactions with its customers,” offering them skin consultations, samples, free 

products, and recycling. “All of those situations,” counsel argued, “provide 

opportunities for a Kiehl’s employee to ask for [a] customer’s information that has 

absolutely nothing to do with a credit card transaction. Doesn’t even happen at the cash 

register area.” Counsel argued the evidence before the court did not show any policy or 

practice by Kiehl’s of asking “everyone that shows up to the counter” for PII.

4. The Trial Court’s Ruling

After hearing from counsel, the trial court delivered its ruling in some detail. On 

June 3, 2014, the court filed a signed order embodying that ruling. The court first 

discussed the statute’s language and cases interpreting it, in particular Pineda v. 

Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda) and Florez v. 

Linens ’N Things, Inc. (2003) 108 Cal.App.4th 447 (Florez). The order stated, “The 

crux of Plaintiff’s argument in support of his Motion for Class Certification turns on the 

interpretation of the statute.” The court rejected Adjamian’s argument that Civil Code 
10

section 1747.08, subdivision (a) prohibits requesting PII in connection with a credit card 

transaction even if providing that information was not a condition of accepting a credit 

card payment. Citing Florez, the court stated a request for PII violates the statute only if

“a consumer would perceive the store’s request for information as a condition for the 

use of the credit card.” Thus, the court concluded the statute prohibits a retailer from 

requiring a credit card holder to provide PII in connection with a credit card transaction 

and from requesting that information in a way that would cause a reasonable consumer 

to believe that providing the information is a condition of accepting a credit card 

payment.

The trial court found that individual issues predominate on the question of 

liability because Adjamian failed to present substantial evidence of a policy or practice

by Kiehl’s specific to credit card transactions of requiring PII or causing a reasonable 

customer to perceive such a requirement. The court stated, “According to Defendant, 

customer information was not requested as a matter of routine during credit card 

transactions, but it could be requested under varying circumstances, including by 

entering the store, when paying for merchandise with cash, or when signing up online. 

Whether L’Oréal USA violated the Song–Beverly Credit Card Act would therefore 

depend on the circumstances surrounding a request for information because, as set forth 

above, that involves whether the customer believed that providing his or her information 

was a condition of consummating the credit card transaction. Such a question would 

turn on the particular facts of each customer’s transaction, and is not subject to common 

proof.” The court noted Adjamian “has presented no evidence of any Kiehl’s 

transaction other than his own, and his deposition testimony shows that he did not recall 

thinking he had to provide his personal information in order to use his credit card to 

pay.”

The trial court also found Adjamian failed to show that common issues 

predominate on liability even under Adjamian’s construction of the statute. Adjamian

presented no evidence, the court said, of a uniform policy or practice of requesting PII 

“in connection with credit card transactions.” The order stated the evidence “fails to 
11

show any policy about credit card transactions, whether information is required or 

simply requested.” The order continued, “There is simply nothing before the Court to 

suggest that Defendant had a standard policy throughout its California Kiehl’s stores 

requiring or requesting personal information as a condition of or at least in connection 

with credit card transactions. Individualized issues will, therefore, predominate on the 

question of liability under the Song–Beverly Credit Card Act.”5

The trial court also found Adjamian’s transaction “was not typical of other 

members of the putative class” and, “as Plaintiff is not typical, he is also not an 

adequate representative.” The order stated it was not necessary to decide whether the 

putative class was sufficiently ascertainable and numerous.

5. Appeal

Adjamian timely appealed the order denying class certification.6

CONTENTIONS

Adjamian contends the trial court misconstrued Civil Code section 1747.08, 

subdivision (a)(2), and its findings that common issues do not predominate and that 

Adjamian failed to satisfy the typicality and adequacy requirements were based on that

erroneous construction. According to Adjamian, he need prove only that Kiehl’s

requested and recorded PII from a customer who paid by credit card in order to establish 

a violation of the statute, and he need not prove that providing that information was 

actually or was perceived to be a condition of accepting a credit card payment. 

 

5

The order also stated, “if requesting [PII] during or in connection with a credit 

card transaction ipso facto gives rise to liability under the Song–Beverly Credit Card 

Act, then the putative class members’ claims probably could be evaluated in one stroke 

as Plaintiff asserts.” But, again, the court noted there was no evidence of a standard 

policy of requesting PII in connection with credit card transactions and so individual 

issues predominate.

6 An order denying class certification is appealable under the “death knell” 

doctrine if it effectively terminates the class claims while allowing individual claims to 

proceed. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757-759.)
12

Adjamian also contends he presented sufficient evidence of a policy or practice by 

Kiehl’s of requesting PII in connection with credit card transactions.

DISCUSSION

1. Class Certification Principles

“Code of Civil Procedure section 382 authorizes class actions ‘when the question 

is one of a common or general interest, of many persons, or when the parties are 

numerous, and it is impracticable to bring them all before the court . . . . ’ The party 

seeking certification has the burden to establish the existence of both an ascertainable 

class and a well-defined community of interest among class members. [Citations.]” 

(Sav–On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav–On).) 

“[T]he ‘community of interest requirement embodies three factors: (1) predominant 

common questions of law or fact; (2) class representatives with claims or defenses 

typical of the class; and (3) class representatives who can adequately represent the 

class.’ [Citation.].” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089 

(Fireside Bank).) “In certifying a class action, the court must also conclude that 

litigation of individual issues, including those arising from affirmative defenses, can be 

managed fairly and efficiently.” (Duran v. U.S. Bank National Assn. (2014) 

59 Cal.4th 1, 28-29.)

“The ‘ultimate question’ the element of predominance presents is whether ‘the 

issues which may be jointly tried, when compared with those requiring separate 

adjudication, are so numerous or substantial that the maintenance of a class action 

would be advantageous to the judicial process and to the litigants.’ [Citations.] The 

answer hinges on ‘whether the theory of recovery advanced by the proponents of 

certification is, as an analytical matter, likely to prove amenable to class treatment.’ ” 

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) 

Thus, “[p]resented with a class certification motion, a trial court must examine the

plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to 

be presented, and decide whether individual or common issues predominate.” (Id. at 

p. 1025.)
13

2. Standard of Review

We review an order granting or denying class certification for abuse of 

discretion. (Sav–On, supra, 34 Cal.4th at pp. 326–327.) As “ ‘trial courts are ideally 

situated to evaluate the efficiencies and practicalities of permitting group action, they 

are afforded great discretion in granting or denying certification.’ ” (Id. at p. 326; see 

also Fireside Bank, supra, 40 Cal.4th at p. 1089 [a decision to certify or not to certify 

a class “rests squarely within the discretion of the trial court, and we afford that decision 

great deference on appeal, reversing only for a manifest abuse of discretion”].) 

Accordingly, such a ruling generally will not be disturbed unless it is (1) not supported 

by substantial evidence, (2) based on improper criteria, or (3) based on erroneous legal 

assumptions. (Fireside Bank, supra, 40 Cal.4th at p. 1089.) “Predominance is a factual 

question; accordingly, the trial court’s finding that common issues predominate 

generally is reviewed for substantial evidence. [Citation.] We must ‘[p]resum[e] in 

favor of the . . . order . . . the existence of every fact the trial court could reasonably 

deduce from the record . . . . ’ [Citation.]” (Brinker, supra, 53 Cal.4th at p. 1022.)

3. Substantial Evidence Supports the Trial Court’s Predominance Finding

The trial court determined the proposed class lacked the requisite community of 

interest because Adjamian failed to establish predominant common questions of fact. 

Adjamian contends the trial court’s findings were based on its erroneous construction of 

Civil Code section 1747.08, subdivision (a)(2). Adjamian argues the Act prohibits any 

and all requests for PII of any customer who ends up paying with a credit card before

the transaction is completed, regardless of the circumstances in which the request is 

made. That Kiehl’s’ sales clerks request some customers’ PII before the customer 

presents a credit card for payment, or even before the customer suggests he or she 

intends to purchase merchandise, does not change the analysis in Adjamian’s view.
14

“In 1990, the Legislature enacted former [Civil Code] section 1747.87(Assem. 

Bill No. 2920 (1989-1990 Reg. Sess.) § 1), seeking ‘to address the misuse of personal 

identification information for, inter alia, marketing purposes, and [finding] that there 

would be no legitimate need to obtain such information from credit card customers if it 

was not necessary to the completion of the credit card transaction.” (Pineda, supra, 

51 Cal.4th at p. 534, quoting Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 345 

(Absher).) “To protect consumers, the Legislature sought to prohibit businesses from 

‘requiring information that merchants, banks or credit card companies do not require or 

need.’ [Citation.]” (Id. at p. 535.) A year later, in 1991, the Legislature amended the 

statute, broadening the provision to forbid businesses from “ ‘[r]equest[ing], or

requir[ing] as a condition to accepting the credit card . . . , the cardholder to provide 

personal identification information . . . . ’ [Citation.]” (Ibid.)

California courts have rejected Adjamian’s contention that the statute “imposes

an absolute prohibition on requesting [PII] from credit card customers.” (Harrold v. 

Levi Strauss & Co. (2015) 236 Cal.App.4th 1259, 1265 (Harrold).) As the Harrold 

court noted, “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.” (Id. at p. 1266.) “The [‘as a condition’] clause clearly was 

intended to apply to both a request and a requirement.” (Ibid.; see also Absher, supra, 

164 Cal.App.4th at p. 344 [noting “the punctuation in [section 1747.08,]

subdivision (a)(1) and (a)(2) is not punctilious” but rejecting the plaintiff’s argument 

there “that the qualifying phrase ‘as a condition to accepting the credit card as payment’ 

applies only to ‘require,’ not to ‘request’ ”].)

As the Harrold court observed, “[s]everal courts, both state and federal, have 

recognized that the Act does not preclude merchants from operating e-mail marketing 

programs and requesting consumers to voluntarily provide their e-mail addresses or 

other identification information for use in such programs.” (Harrold, supra, 

 

7

The statute was later amended and renumbered as section 1747.08. (Stats. 2004, 

ch. 183, § 29.)
15

236 Cal.App.4th at p. 1267.) “In Florez, 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.’ ” (Ibid.) “In Gass

v. Best Buy Co., Inc. (C.D. Cal. 2012) 279 F.R.D. 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.” ’ ” 

(Harrold, supra, 236 Cal.App.4th at p. 1267.)

As the trial court here noted, Florez stated “[w]hat . . . matter[s] is whether 

a consumer would perceive the store’s ‘request’ for information as a ‘condition’ of the 

use of a credit card.” (Florez, supra, 108 Cal.App.4th at p. 451 [emphasis in original].) 

The trial court found that -- while Kiehl’s unquestionably has a policy and practice of 

trying to get customers’ contact information by signing them up for its loyalty and 

rewards programs -- “[t]he evidence does not show a routine course of conduct of 

asking for customers’ [PII] during a [credit card] transaction.” Thus, the court 

concluded, whether L’Oreal violated the Act “would therefore depend on the 

circumstances surrounding a request for information because . . . that involves whether 

the customer believed that providing his or her information was a condition of 

consummating the credit card transaction.” So, the court said, “[s]uch a question would 

turn on the particular facts of each customer’s transaction, and is not subject to common 

proof.”

Substantial evidence supports the trial court’s findings. Kiehl’s’ documents 

show -- and its assistant store manager readily admits -- that Kiehl’s trains its sales 

clerks to ask customers for their contact information. These efforts begin when the 

customer walks into the store and last until the customer leaves. Customers are asked 

for their contact information when the clerk first greets them upon arrival, when they sit 

down for a skin consultation, and when they are given product samples. Customers are 

asked if they are members of the retailer’s loyalty club, Kiehl’s Family; if not, if they 
16

would like to join; if they would like to enroll in the rewards program; and if they would 

like to participate in Kiehl’s’ recycling program. The clear implication from the 

evidence before the trial court is that Kiehl’s seeks to get contact information from 

customers at various times, and through various efforts, before the customer ever 

presents a credit card for payment. Indeed, the evidence supports a reasonable inference 

that Kiehl’s, in at least some instances, requests PII even before the customer has any 

thought of purchasing merchandise with a credit card at all.

Because a retailer is liable for a violation of section 1747.08, subdivision (a)(2) 

only if “a consumer would perceive the store’s ‘request’ for information as a ‘condition’ 

of the use of a credit card” (Florez, supra, 108 Cal.App.4th at p. 451), the varied 

circumstances in which Kiehl’s requests PII from its customers present individualized 

factual issues that cannot be jointly tried in a class action. (See Brinker, supra,

53 Cal.4th at p. 1021.) Though a jury might conclude that a customer would perceive 

a request for PII to be a condition of the use of a credit card were the request made after 

the customer presented the card for payment, the same jury could reasonably conclude 

that no customer would perceive the request to be a condition for paying with a credit 

card if the evidence showed Kiehl’s’ clerk made the request immediately upon greeting 

the customer when he or she entered the store. In view of the evidence presented to the 

trial court, the circumstances of each customer interaction must be evaluated to 

determine what a reasonable customer would have perceived about the request for PII 

vis-à-vis the subsequent credit card transaction and, hence, whether the request 

constituted a violation of the Act. The trial court reasonably concluded individualized 

issues would predominate based on this evidence.

Evidence that Kiehl’s’ computers allow sales clerks to record customer contact 

information does not, standing alone, establish a violation of the Act. A retailer is not 

required to have two separate computer systems -- one to process payments and one to 

input and maintain contact information for customers who join loyalty or rewards 

programs -- to avoid violating the Act. Adjamian makes much of the fact that his name, 

telephone number, and email address were printed on the store receipt he attaches to his 
17

declaration.8 But this evidence establishes only that Kiehl’s records PII; it does not 

establish that the store maintains a uniform policy that can be evaluated to assess on 

a class-wide basis whether every customer whose PII was requested would “perceive 

the store’s ‘request’ for information as a ‘condition’ of the use of a credit card.” 

(Florez, supra, 108 Cal.App.4th at p. 451.) Adjamian’s evidence concerning Kiehl’s’

practice of recording PII tells only half the story. That evidence did not compel the trial 

court to conclude a violation could be established on a class-wide basis, given the 

evidence Kiehl’s presented concerning the varied circumstances in which it requests PII 

from its customers.

In sum, substantial evidence supports the trial court’s finding that common issues 

do not predominate. The court did not abuse its considerable discretion in denying class 

certification. In light of our conclusion, we need not decide whether the trial court 

properly found that Adjamian failed to satisfy the typicality and adequacy requirements. 

(See Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 

1454, 1469.)

 

8 As De Paola explained in his declaration, the customer name and contact 

information appeared on the store’s copy of the receipt when Kiehl’s used the CRS 

system “if it had already been provided in connection with the consumer’s election to 

join the Kiehl’s Family.”
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DISPOSITION

The order is affirmed. L’Oreal is entitled to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.*

WE CONCUR:

EDMON, P. J.

ALDRICH, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.