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Ambers v. Beverages & More, Inc.

California Court of Appeals, Second District, Second Division

May 4, 2015

MICHAEL AMBERS, Plaintiff and Appellant,
v.
BEVERAGES & MORE, INC., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC506482 Jane L. Johnson, Judge.

Page 509

COUNSEL

Schreiber & Schreiber, Edwin C. Schreiber, Eric A. Schreiber, and Ean M. Schreiber for Plaintiff and Appellant.

Cooley, Michelle C. Doolin, Darcie A. Tilly, and Phillip M. Hoos for Defendant and Respondent.

OPINION

CHAVEZ, J.

The question presented in this appeal is whether Civil Code section 1747.08[1] part of the Song-Beverly Credit Card Act of 1971 (the Credit Card Act) (§ 1747 et seq.) applies to an online purchase of merchandise that the buyer elects to pick up at the seller’s retail store. We conclude that the statute does not apply to that transaction under the circumstances presented here. We therefore affirm the judgment entered in the seller’s favor.

BACKGROUND

Plaintiff Michael Ambers (plaintiff) filed an unverified class action complaint against defendant Beverages & More, Inc. (BevMo) seeking civil

Page 510

penalties for violation of section 1747.08, which prohibits merchants from requesting or requiring and recording a consumer’s personal identifying information (PII), such as an address and telephone number, during the course of a credit card purchase transaction. In his initial complaint, plaintiff alleged that he purchased alcohol online through BevMo’s website and elected to pick up his order at a BevMo store. Plaintiff further alleged that providing his PII was a condition to completing the online purchase, that he provided BevMo with the required information, and that he “completed the transaction, paying for the MERCHANDISE with his credit card.” Sometime thereafter, plaintiff went to a BevMo store, showed his identification and the credit card used to make the online purchase to a BevMo employee, and received his merchandise.

BevMo demurred to the complaint, arguing that under Apple Inc. v. Superior Court (2013) 56 Cal.4th 128 [151 Cal.Rptr.3d 841, 292 P.3d 883] (Apple), section 1747.08 did not apply to an online purchase transaction in which PII is the only means to prevent fraud during the purchase. BevMo argued that plaintiff had alleged that his purchase was completed online, and that BevMo had no other means to prevent fraud in the transaction except by requesting PII. BevMo further argued that its PII request came within the exception set forth in subdivision (c)(4) of section 1747.08.

The trial court sustained the demurrer, concluding that section 1747.08 applied to the online purchase, and not the in-store pickup of merchandise. The court granted plaintiff leave to amend, but advised plaintiff that the amended pleading would have to explain the allegation in the initial complaint that plaintiff had “completed the transaction” online.

Plaintiff filed a first amended complaint, the operative pleading in this appeal, in which he alleged that BevMo’s online request for his PII violated section 1747.08 because that information was “unnecessary to the completion of his store pick up transaction” or to prevent fraud because he was required to show the store employee his photo identification and credit card before receiving his merchandise. Plaintiff further alleged the transaction was not completed until he went to the BevMo store, showed the clerk both his photo identification and credit card, and physically received his merchandise. Plaintiff argued that the purchase could not have been completed until he took physical possession of the merchandise because (1) the merchandise was personal property to which a customer could not take title before physical possession; (2) a customer who failed to pick up merchandise after placing an online order would have his or her credit card re-credited with the purchase price; and (3) section 1747.04 prohibits the retailer from claiming that title to goods has passed when it in fact has not.

Page 511

BevMo again demurred, arguing that plaintiff was bound by his prior admission that his purchase transaction was completed online because he failed to explain why the previous allegation was erroneous. BevMo further argued that under the terms and conditions of its website, the parties had agreed that title to merchandise purchased online transfers to the buyer at the time of purchase, and not when the buyer takes physical possession. BevMo asked the trial court to take judicial notice of BevMo’s web ...


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