California Court of Appeals, Third District, Placer
Super. Ct. No. SCV 22986.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Stonebarger Law, Gene J. Stonebarger, Richard D. Lambert, Elaine W. Yan; Patterson Law Group and James R. Patterson for Plaintiff and Appellant.
Atkins & Davidson and Todd C. Atkins for The Consumer Federation of California as Amicus Curiae on behalf of Plaintiff and Appellant.
Fox Rothschild, David F. Faustman, Cristina K. Armstrong and Tyreen G. Torner for Defendants and Respondents.
BLEASE, Acting P. J.
Plaintiff Dione Aguirre appeals from an order denying class certification. Plaintiff sued defendants Amscan Holdings, Inc., and PA Acquisition, doing business as Party America (collectively Party America) on behalf of herself and similarly situated individuals, alleging Party America violated Civil Code section 1747.08, part of the Song-Beverly Credit Card Act of 1971 (§ 1747 et seq.) by routinely requesting and recording personal identification information, namely ZIP Codes, from customers using credit cards in its retail stores in California. The trial court found tat plaintiff’s proposed class of “[a]ll persons in California from whom Defendant requested and recorded a ZIP code in conjunction with a credit card purchase transaction from June 2, 2007 through October 13, 2010” is not an ascertainable class, and "plaintiffs inability to clearly identify, locate and notify class members through a reasonable expenditure of time and money [citation] bars her from litigating this case as a class action.” Plaintiff appeals, arguing the trial court “erred in determining the class... was not ascertainable based upon the finding that each individual class member was not specifically identifiable from [Party America’s] records, and thus, notice to the class cannot be directly provided to class members.” We shall conclude that the trial court applied an erroneous legal standard in determining the proposed class is not ascertainable and erred in its conclusion. Accordingly, we shall reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiffs First Amended Complaint
Plaintiff filed her original complaint on June 2, 2008, and the operative first amended complaint on June 9, 2008. The first amended complaint alleges that Party America’s practice of requesting and recording personal identification information, namely ZIP Codes, from its credit card customers at the point-of-sale violated section 1747.08, which prohibits persons and businesses from requesting or requiring “personal identification information” as a condition to accepting a credit card as payment for goods or services.
As to plaintiff, the first amended complaint alleges that within 12 months of bringing this action, plaintiff purchased an item from the Party America store in Placer County using a credit card. During the transaction, the cashier requested plaintiff’s ZIP Code, which plaintiff provided, believing she was required to do so to complete the transaction. The cashier then entered plaintiff’s ZIP Code into an electronic cash register.
As to the class, the first amended complaint alleges that the “lawsuit is brought on behalf of an ascertainable statewide class consisting of all persons in California from whom [Party America] requested and recorded personal identification information in conjunction with a credit card transaction....” The members of the class are so numerous that joinder of all members is impracticable, and common questions of law and fact predominate, including: “whether each Class member engaged in a credit card transaction with [Party America]”; “whether [Party America] requested the cardholder to provide personal identification information and recorded [such information]... during credit card transactions with Class members”; and whether such conduct violates section 1747.08.
B. Party Americas Motion for Judgment on the
In May 2010, Party America filed a motion for judgment on the pleadings on the sole ground that a cardholder’s ZIP Code does not constitute “personal identification information” within the meaning of section 1747.08. The trial court granted the motion, plaintiff appealed, and we reversed, citing our Supreme Court’s then recent decision in Pineda v. Williams-Sonoma Stores, Inc.
(2011) 51 Cal.4th 524 [120 Cal.Rptr.3d 531, 246 P.3d 612] (Pineda), which holds that a cardholder’s ZIP Code “constitutes ‘personal identification information’ as that phrase is used in section 1747.08” and that “requesting and recording a cardholder’s ZIP Code, without more, violates the [statute].” (Id. at ...