(Los Angeles County Super. Ct. No. BC296139) APPEAL from a judgment of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed in part and reversed in part with directions.
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
This is a putative class action, along with individual claims, arising from the alleged requesting and recording by United Rentals, Inc., and United Rentals Northwest, Inc. (collectively defendants), of plaintiffs' personal identification information "as a condition to accepting the credit card as payment in full or in part for goods or services," in violation of section 1747.08 of the Song-Beverly Credit Card Act of 1971 (SBCCA) (Civ. Code, § 1747 et seq.).*fn1
Vincent Archer and Alistair Cochran (collectively plaintiffs) appeal from the judgment entered against defendants on their individual claims for monetary recovery under the SBCCA and the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). On appeal, plaintiffs seek review of: (1) the order granting defendants' motion for summary adjudication on the class claim for injunctive relief under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and (2) the order denying certification of a class on the SBCCA and CLRA claims.*fn2
This appeal presents these significant issues: (1) Have plaintiffs established standing to pursue a UCL claim by demonstrating they "suffered injury in fact and . . . lost money or property as a result of the unfair competition" (Bus. & Prof. Code, § 17204); (2) does the privacy protection of Civil Code section 1747.08 cover the use of a business credit card; (3) does such protection extend to a cardholder who uses a personal credit card regardless of whether such use is "primarily" or "occasionally" for business purposes; and (4) is class certification foreclosed by the unreasonableness of ascertaining class membership?
We resolve the first issue in the negative. As our Supreme Court recently clarified: "It suffices to say that, in sharp contrast to the state of the law before passage of Proposition 64, a private plaintiff filing suit now must establish that he or she has personally suffered [a loss of money or property]," and plaintiffs have shown neither. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323 (Kwikset).)*fn3 We answer the second issue in the negative. A plain reading of the applicable SBCCA provisions reveals that a cardholder using a business card in making the purchase is not entitled to the privacy protection of section 1747.08. As for the third issue, we find that whether the personal card is used "occasionally" or "primarily" for business purposes is a distinction without a difference. The purpose for which the personal credit card is used is of no import. The key factor is that the card was issued for personal use. Section 1747.02 unequivocally and without qualification defines a "'[c]ardholder'" as "a natural person to whom a credit card is issued for consumer credit purposes[.]" (Id., subd. (d).) The legislative history of the SBCCA confirms the Legislature intended section 1747.08 to protect the personal identification information of the natural person without regard to his or her use of the credit card.
Finally, as to the fourth issue, in light of our resolution of the third issue, we reverse the order denying class certification and remand for clarification on the final and determinative issue. In denying class certification, the trial court concluded that ascertaining the class would be unreasonable because determining the class membership would be "intensively fact-driven" in view of the court's determination that the privacy protection of section 1747.08 does not cover the use of business credit cards and consumer credit cards used "primarily" for business purposes. The record is unclear whether the court's unascertainability determination would remain unchanged if no need exists for sorting personal credit cards used for consumer purposes from such cards used "primarily" for business purposes.
The facts and allegations in this appeal are taken from the pleadings and the evidence submitted in connection with the summary judgment or summary adjudication motion.*fn4
The two individual plaintiffs are the putative class representatives. On May 14, 2003, Archer bought a five-gallon propane tank for his backyard barbecue using a credit card at defendants' Canoga Park store. As a condition to accepting the card as payment, defendants requested personal identification information, including his residential address, city, and ZIP code, and recorded the information on the sales invoice and in defendants' computer database. On May 18, 2003, Cochran bought a five-gallon propane tank for his backyard barbecue at defendants' West Los Angeles store. As a condition to accepting the card as payment, defendants requested his driver's license, which contained personal identification information, including his name and residence address. Defendants recorded the information on the invoice and in defendants' computer database.
On May 21, 2003, this action was filed based on alleged violations of section 1747.08 that transpired "at least as early as May 21, 1999," through "May 21, 2003." Plaintiffs, on behalf of the class and themselves as individuals, sought monetary recovery under the SBCCA (first cause of action) and the CLRA (second cause of action), and on behalf of the class, they sought injunctive relief under the UCL (third cause of action).
Defendants filed an answer denying all material allegations and asserting various affirmative defenses.
Plaintiffs filed a motion to certify a class with regard to all three causes of action. Defendants filed opposition.
The trial court granted in part plaintiffs' motion for class certification by certifying a class for injunctive relief on their UCL claim and deferred ruling on the SBCCA and CLRA claims.
At a hearing in June 2005, defendants argued for the first time that section 1747.08 did not protect individuals who use a business credit card issued in the individual's name. The court again deferred ruling on the certification of the class as to the SBCCA and CLRA claims and directed the parties to submit additional briefing. In such briefing, defendants argued section 1747.08 did not prohibit them from recording personal identification information of customers whose personal credit cards were used "primarily" for business purposes. Plaintiffs contended otherwise.
At a later hearing, the trial court took the matter under submission and requested additional briefing on what the effect of class certification would be if the court were to determine either business credit cards or consumer credit cards used primarily for business purposes are not covered by section 1747.08. Both parties submitted supplemental briefing on these two issues.
The court ruled that the SBCCA provides privacy protection for a consumer who uses a consumer card "occasionally" for a business purpose but no protection where the consumer card is used "primarily" for business purposes. The court further ruled that no protection exists for consumers who use business credit cards issued in their own name. The court announced its tentative ruling was not to certify a class under the SBCCA or the CLRA. The court explained that it would be an intensely fact-driven process to identify individuals who use credit cards more often for business purposes and deferred its final ruling to offer "plaintiffs an opportunity to structure and suggest a method of ascertaining the class should [they] still wish to do so."*fn5
Later, the trial court certified a class on the UCL claim and denied the motion to certify the class on the SBCCA and CLRA claims. The court reasoned: Prior to certification and notice, the court initially had to determine how to identify the individuals entitled to protection under section 1747.08. It would be an "intensely fact-driven" process to decide who was entitled to such protection in light of the court's finding that only certain consumers making credit card purchases were entitled to privacy protection under the SBCCA. Moreover, the costs associated with identifying the class members did not justify certification of a class under the SBCCA and the CLRA.
Plaintiffs filed a purported appeal from the order denying class certification of the SBCCA and CLRA claims. (Archer v. United Rentals, Inc. (B192190).)*fn6 We dismissed that appeal as having been taken from a non-appealable interim order. We explained the order denying class certification on the SBCCA and CLRA claims was not appealable as the equivalent of a final judgment under the death knell doctrine because the UCL claim remained. Our Supreme Court denied plaintiffs' petition for review (S166676).
Defendants filed a motion for summary adjudication on the UCL claim. Plaintiffs filed a motion for summary judgment or summary adjudication as to the individual claims under the SBCCA and the CLRA.
The trial court granted defendants' motion for summary adjudication as to the UCL claim for injunctive relief on behalf of the class. The court determined that although defendants benefited from their recording of personal identification information, plaintiffs lacked standing to proceed because they did not lose money or property. On the same date, the court also granted plaintiffs' motion for summary judgment and awarded each plaintiff the amount of $250 on their individual claims under the SBCCA and the CLRA. Plaintiffs appeal from the judgment.
1. No Standing to Prosecute UCL ...