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Lewis v. Safeway, Inc.

California Court of Appeals, First District, Second Division

March 20, 2015

MARK LEWIS, Plaintiff and Appellant,
v.
SAFEWAY, INC., Defendant and Respondent.

Alameda Superior Court No. RG13694105 Honorable Wynne S. Carvill Judge

Page 386

[Copyrighted Material Omitted]

Page 387

COUNSEL

Mehrban Law Corporation, Julie Mehrban, Law Offices of Morse Mehrban and Morse Mehrban for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, P. Craig Cardon, Brian R. Blackman, Elizabeth S. Barcohana and Jay T. Ramsey for Defendant and Respondent.

OPINION

RICHMAN, J.

Subject to numerous exceptions, the Song-Beverly Credit Card Act of 1971 (Song-Beverly or the Act) (Civ. Code, § 1747 et seq.) generally prohibits a retailer from requesting and recording a customer’s “personal identification information” when the customer is purchasing goods or services with a credit card. (Civ. Code, § 1747.08, subd. (a)(2).) Plaintiff

Page 388

Mark Lewis filed a putative class action against defendant Safeway, Inc. (Safeway), alleging that Safeway violated the Act when its clerk requested and recorded Lewis’s date of birth in Safeway’s cash register system when he purchased an alcoholic beverage with a credit card. Safeway demurred on four grounds, two of which were that its conduct fell within express exceptions to the Act. The trial court agreed that one of the exceptions applied, sustained Safeway’s demurrer without leave to amend, and entered a judgment of dismissal. We affirm.

BACKGROUND

The Complaint

It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 425 [152 Cal.Rptr.3d 530]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:5, p. 7(I)-6 (rev. # 1, 2013).) This appeal comes before us after the trial court sustained Safeway’s demurrer, holding that Lewis’s allegations failed to state a claim. One would thus expect that Lewis-an appellant who presumably aspires to convince us that the trial court erred-would summarize the allegations in his complaint that purportedly stated a claim. Astonishingly, nowhere in his opening brief does he do so, at most sprinkling a handful of passing references to his allegations randomly throughout his brief.[1] We find this to be a curious appellate strategy, and not one we condone.

Nevertheless, we have the benefit of the complaint in the record, which reveals that on August 30, 2013, Lewis filed a putative class action against Safeway, asserting one cause of action, for violation of Song-Beverly. The complaint contained five paragraphs concerning the cause of action, alleging as follows:

“5. On or about August 24, 2013, Plaintiff entered Defendants’ store at 14845 Ventura Blvd., Sherman Oaks, CA 91402 to purchase an alcoholic beverage.

“6. Upon selection of an alcoholic beverage to purchase, Plaintiff presented the item for payment to one of ...


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