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Powers v. Pottery Barn

September 21, 2009

SUSAN CATHERINE POWERS, PLAINTIFF AND APPELLANT,
v.
POTTERY BARN, INC., DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Reversed. (Super. Ct. No. 37-2008-00079760-CU-BT-CTL).

The opinion of the court was delivered by: Benke, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

In this consumer class action case the trial court found plaintiff's claims against a retailer for violation of provisions of the Song-Beverly Credit Card Act of 1971 (Song-Beverly) were pre-empted by provisions of a federal statute, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (tit. 15, U.S.C, § 7701 et seq.) (CAN-SPAM). Accordingly, the trial court sustained the retailer's demurrer without leave to amend. We reverse.

The disputed provisions of Song-Beverly were added by the Legislature in 1990 and limit the information that may be requested of a consumer when the consumer uses a credit card to transact business. In particular, Song-Beverly prohibits businesses from requesting or requiring credit card customers to provide "personal identification information," such as their addresses and telephone numbers. In contrast, CAN-SPAM imposes disclosure and "opt-out" requirements on the senders of commercial electronic mail (e-mail) and restricts the manner in which such e-mail may be sent. In addition, by its terms CAN-SPAM pre-empts any state law that "specifically regulates the use of electronic mail to send commercial messages." However, CAN-SPAM does not preempt state laws that "are not specific to electronic mail." Because Song-Beverly's regulation of what may be asked of credit card customers is not a regulation of what can be sent in commercial e-mails and is not in any manner specific to e-mail, we conclude Song-Beverly is not pre-empted by CAN-SPAM.

PROCEDURAL HISTORY

On March 12, 2008, plaintiff and appellant Susan Catherine Powers filed a class action complaint against defendant and respondent Pottery Barn, Inc. (Pottery Barn).

Powers alleged she visited a Pottery Barn store, selected an item to buy and, when she used her credit card to buy it, was asked to provide an e-mail address. Powers gave the sales clerk her e-mail address and saw the clerk enter the address into the store's electronic cash register. More generally, Powers alleged Pottery Barn made a practice of asking for personal identification information within the meaning of Song-Beverly and that this conduct, in addition to giving rise to a cause of action under Song-Beverly, gave rise to claims under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL) and for invasion of privacy.

Pottery Barn demurred to Powers's complaint. Pottery Barn alleged e-mails are not personal identification information within the meaning of Song-Beverly and that, in any event, regulation of the collection of e-mails is pre-empted by CAN-SPAM. Pottery Barn further alleged Song-Beverly was an unlawful limitation on its right to engage in commercial speech.

The trial court sustained the demurrer with leave to amend. The trial court determined e-mails are personal identification information within the scope of Song-Beverly, but that Powers's claims were nonetheless pre-empted by CAN-SPAM. The trial court gave Powers leave to allege that, aside from e-mails, Pottery Barn had collected other personal identification information. Powers was unable to make such an allegation and the trial court entered a judgment of dismissal. Powers filed a timely notice of appeal.

DISCUSSION

I.

"On appeal from a judgment dismissing an action after sustaining a demurrer . . . the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] [H]owever, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) Where the plaintiff has been given an opportunity to amend, we presume the complaint states as strong a case as is possible. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.)

II.

Song-Beverly was enacted in 1971. "The act 'imposes fair business practices for the protection of the consumers. "Such a law is remedial in nature and in the public interest [and] is to be liberally construed to the end of fostering its objectives." ' [Citations.]" ...


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