Davis v. Devanlay Retail Grp., Inc.
| Decision Date | 05 May 2015 |
| Docket Number | No. 13–15063.,13–15063. |
| Parties | Tammie DAVIS, individually and on behalf of all others similarly situated, Plaintiff–Appellant, v. DEVANLAY RETAIL GROUP, INC., a Delaware corporation, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gene J. Stonebarger, Stonebarger Law, A Professional Corporation, Folsom, CA, James R. Patterson, Patterson Law Group, A Professional Corporation, San Diego, CA, for Plaintiff–Appellant Tammie Davis.
Matthew R. Orr, Scott R. Hatch, Melinda Evans, Call & Jensen, A Professional Corporation, Newport Beach, CA, for Defendant–Appellee Devanlay Retail Group, Inc.
Before: CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.
This appeal requires us to resolve whether the Song–Beverly 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 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.
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 personal identification 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?
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).
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.
Devanlay moved 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 6589204 (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, Inc., 108 Cal.App.4th 447, 451, 133 Cal.Rptr.2d 465 (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.
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. Williams–Sonoma Stores, Inc., 51 Cal.4th 524, 527, 120 Cal.Rptr.3d 531, 246 P.3d 612 (2011). The Act provides, in pertinent part:
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 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, 133 Cal.Rptr.2d 465 (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, 133 Cal.Rptr.2d 465. In interpreting the language of Song–Beverly, the court observed:
Id. at 451, 133 Cal.Rptr.2d 465 (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, 133 Cal.Rptr.2d 465. 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 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, 133 Cal.Rptr.2d 465. 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...
To continue reading
Request your trial
-
De Yang v. Majestic Blue Fisheries, LLC
...of only to the immediately preceding one [where the phrase] is separated from the antecedents by a comma." Davis v. Devanlay Retail Grp., Inc. , 785 F.3d 359, 364 n.2 (9th Cir. 2015) (applying California law) (citation omitted). In Davis , for example, we applied this rule when reasoning th......
-
In re Williams-Sonoma Song-Beverly Act Cases
...and on the same day, in light of Harrold , denied a request by the Ninth Circuit to decide a question of state law. ( Davis v. Devanlay Retail Group, Inc. 785 F.3d 359, request denied Aug. 26, 2015.) This does not mean, as Williams-Sonoma would have it, that Harrold is necessarily the final......
-
George v. Guitar Ctr., Inc., B275956
...voluntarily" (id. at p. 451). Due in part to this contradictory language, the Ninth Circuit Court of Appeals in Davis v. Devanlay Retail Group, Inc. (9th Cir. 2015) 785 F.3d 359 asked the California Supreme Court for guidance concerning the proper interpretation of the statute. (Id. at p. 3......