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Filed 12/20/11 Certified for publication 1/18/12 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
ALEXANDRA M. ALVAREZ,
Plaintiff and Appellant,
(Super. Ct. No. 37-2008-00097745CU-NP-CTL)
BROOKSTONE COMPANY, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R.
Hayes, Judge. Affirmed in part, reversed in part and remanded.
Plaintiff Alexandra M. Alvarez appeals a judgment entered after the trial court
sustained the demurrer filed by defendant Brookstone Company, Inc. (Brookstone) to her
complaint that alleged a violation of Civil Code1 section 1747.08 for requesting and
recording her ZIP code as part of a credit card transaction. On appeal, Alvarez contends
that because Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda) held
All statutory references are to the Civil Code unless otherwise specified.
that conduct violates section 1747.08, the judgment against her must be reversed.
Brookstone concedes Pineda held the conduct violates section 1747.08, but argues
Pineda's holding should not be applied retrospectively to its conduct and therefore the
judgment should be affirmed. We conclude Pineda should be applied retrospectively and
reverse the judgment to the extent it dismissed the section 1747.08 claim.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are reviewing the trial court's order sustaining Brookstone's demurrer,
we assume as true all facts alleged in Alvarez's complaint. (Pineda, supra, 51 Cal.4th at
On December 10, 2008, Alvarez filed a putative class action complaint, alleging
that throughout the past 12 months Brookstone violated section 1747.08 when its retail
store cashiers requested and recorded personal identification information in the form of
ZIP codes from her and other customers during credit card transactions.2 Her complaint
also alleged Brookstone violated customers' constitutional right to privacy by requesting
and recording that information and then covertly determining their home addresses.
On March 4, 2009, Alvarez filed a first amended complaint, alleging the same
causes of action but adding the allegation that Brookstone also violated section 1747.08
by requesting and recording customers' e-mail addresses during credit card transactions.3
"ZIP is [a United States Postal Service] acronym that stands for 'Zone
Improvement Plan.' " (Pineda, supra, 51 Cal.4th at p. 527, fn. 2.)
However, the first amended complaint did not allege Brookstone requested and
recorded Alvarez's e-mail address during a credit card transaction.
Brookstone filed a demurrer to the complaint, citing our holding in Party City
Corp. v. Superior Court (2008) 169 Cal.App.4th 497 (Party City) (disapproved in
Pineda, supra, 51 Cal.4th at p. 534) that a ZIP code is not "personal identification
information" within the meaning of section 1747.08. Brookstone also argued Alvarez
could not state a cause of action for violation of her right to privacy. It filed a motion to
strike those portions of the complaint that alleged it collected and used customers' e-mail
addresses on the ground Alvarez did not allege it requested her e-mail address and
therefore she did not have standing to pursue relief for its collection of other customers'
e-mail addresses. Alvarez opposed both the demurrer and motion to strike. In the event
the trial court determined ZIP codes were not personal identification information under
section 1747.08, Alvarez requested leave from the court to file a motion to conduct
precertification discovery to identify a suitable class representative who provided a
personal e-mail address to Brookstone during a credit card transaction.
On or about July 27, 2009, the trial court issued its order sustaining Brookstone's
demurrer to the complaint without leave to amend. Citing Party City, the court
concluded ZIP codes are not personal identification information under section 1747.08
and there was no reasonable expectation of privacy in that information. The court denied
Alvarez's alternative request for leave to conduct discovery to ascertain a proposed class
representative for the class of customers whose e-mail addresses were requested and
recorded. Based on its ruling, the court concluded Brookstone's motion to strike was
On May 11, 2010, the trial court entered judgment for Brookstone, dismissing the
complaint with prejudice. Alvarez timely filed a notice of appeal challenging the
Demurrer Standard of Review
"On appeal from a judgment of dismissal entered after a demurrer has been
sustained, this court reviews the complaint de novo to determine whether it states a cause
of action. [Citation.] We assume the truth of all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. " (Folgelstrom v. Lamps Plus, Inc.
(2011) 195 Cal.App.4th 986, 989-990.) We construe the complaint "liberally . . . with a
view to substantial justice between the parties." (Code Civ. Proc., § 452.) If the
complaint states a cause of action on any possible legal theory, we must reverse the trial
court's order sustaining the demurrer. (Palestini v. General Dynamics Corp. (2002) 99
Cal.App.4th 80, 86.)
Because Alvarez does not substantively address on appeal the trial court's finding
that she could not state a cause of action for violation of her constitutional right to
privacy, we deem she has waived or forfeited any challenge to that finding. Therefore,
we affirm that part of the order sustaining the demurrer as to the second cause of action
for violation of her right to privacy.
The Song-Beverly Credit Card Act of 1971 (Act) (§ 1747 et seq.) is "designed to
promote consumer protection." (Florez v. Linens 'N Things, Inc. (2003) 108 Cal.App.4th
447, 450.) Section 1747.08 generally prohibits businesses from requesting "personal
identification information" during credit card transactions and then recording that
information. (§ 1747.08, subd. (a)(2).) Section 1747.08, subdivision (b), defines
"personal identification information" as "information concerning the cardholder, other
than information set forth on the credit card, and including, but not limited to, the
cardholder's address and telephone number." Any business or person who violates
section 1747.08 "shall be subject to a civil penalty" up to $250 for the first violation and
up to $1,000 for each subsequent violation. (§ 1747.08, subd. (e).)
On February 10, 2011, the California Supreme Court issued its opinion in Pineda,
holding that "a ZIP code constitutes 'personal identification information' as that phrase is
used in section 1747.08." (Pineda, supra, 51 Cal.4th at p. 527.) It concluded "requesting
and recording a cardholder's ZIP code, without more, violates the [Act]." (Id. at pp. 527528.) Following an extensive analysis of section 1747.08's language, Pineda concluded:
"[T]he only reasonable interpretation of section 1747.08 is that personal identification
information includes a cardholder's ZIP code." (Id. at p. 534, italics added.) Pineda
expressly disapproved our contrary conclusion in Party City. (Ibid.)
Pineda further concluded that, assuming the contrary interpretation of section
1747.08's language was also reasonable, its legislative history and purpose supported the
plaintiff's interpretation of section 1747.08. (Pineda, supra, 51 Cal.4th at pp. 534-536.)
The court reaffirmed its initial conclusion, stating: "[I]n light of the statutory language, as
well as the legislative history and evident purpose of the statute, we hold that personal
identification information, as that term is used in section 1747.08, includes a cardholder's
ZIP code." (Id. at p. 536.)
Pineda rejected the defendant's assertion that its construction of section 1747.08
violated due process. (Pineda, supra, 51 Cal.4th at p. 536.) It further rejected the
defendant's assertion that its interpretation of section 1747.08 should be prospectively
applied only. (Pineda, at p. 536.) Pineda applied its interpretation retrospectively and
reversed the Court of Appeal's judgment affirming the trial court's judgment dismissing
the plaintiff's complaint. (Id. at p. 537.)
Retrospective Application of Pineda's Holding to This Case
Alvarez contends the California Supreme Court's holding in Pineda should be
applied retrospectively to her case and, as a result, the judgment dismissing her complaint
must be reversed. Although Brookstone concedes that Pineda disapproved Party City's
contrary interpretation of section 1747.08 on which the trial court relied in sustaining its
demurrer, it argues Pineda's holding should be prospectively applied only. We conclude
the general rule of retrospective application of court decisions should apply to this case.
Brookstone argues retrospective application of Pineda's holding would violate due
process of law because section 1747.08 was reasonably susceptible to other
interpretations (e.g., Brookstone's proffered interpretation) before the issuance of Pineda.
It further argues that section 1747.08's language did not clearly prohibit its alleged
conduct and therefore it was not given fair notice or warning that section 1747.08
prohibits the requesting and recording of a customer's ZIP code.
However, the premise of Brookstone's argument is not persuasive. Pineda
expressly concluded: "[T]he only reasonable interpretation of section 1747.08 is that
personal identification information includes a cardholder's ZIP code." (Pineda, supra, 51
Cal.4th at p. 534, italics added.) Therefore, despite Brookstone's attempts to show the
contrary, the California Supreme Court held that its interpretation of section 1747.08 was
the only reasonable interpretation of that statute. Pineda further concluded section
1747.08 "provides constitutionally adequate notice of proscribed conduct." (Id. at p.
536.) We reject Brookstone's due process argument that it did not have fair notice or
warning of section 1747.08's prohibition against requesting and recording the ZIP codes
of customers during credit card transactions.
Brookstone also asserts considerations of fairness and public policy weigh against
retrospective application of Pineda's holding. It argues there would be a greater burden
on the courts and the administration of justice were Pineda applied retrospectively.5 It
also argues Pineda's change in decisional law (e.g., disapproving Party City) was
unexpected or unforeseeable in light of seemingly reasonable contrary interpretations of
section 1747.08 by this and other courts in cases preceding Pineda's issuance on February
We are not persuaded by Brookstone's arguments. Pineda's interpretation of
section 1747.08 was foreseeable. Pineda concluded its interpretation was the only
reasonable interpretation of section 1747.08.7 (Pineda, supra, 51 Cal.4th at p. 534.) To
the extent Brookstone's cited "respected legal minds" may have interpreted section
1747.08 differently prior to the issuance of Pineda, that does not make those contrary
interpretations reasonable. (See, e.g., Party City, supra, 169 Cal.App.4th at pp. 502, 5185
We summarily conclude that any greater burden on the courts is not a sufficient
reason to depart from the general rule of retrospective application. (Pineda, supra, 51
Cal.4th at p. 536.)
On May 26, 2011, Brookstone filed a request for judicial notice of certain court
records, including our unpublished opinion in another section 1747.08 case and court
dockets in Pineda and other cases. Although we may judicially notice certain court
records pursuant to Evidence Code sections 452 and 459, subdivision (a), we deny
Brookstone's request for judicial notice because it does not show the court records it
submits for judicial notice were presented to the trial court and/or are relevant to our
determination of the issues on appeal. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th
408, 418; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3;
Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 701, fn. 1.)
On June 15, 2011, Alvarez filed a request for judicial notice of our unpublished
opinion in another case and a request for publication of that opinion. We deny her
request for the same reasons we deny Brookstone's request for judicial notice.
By so concluding, Pineda implicitly concluded section 1747.08's language was not
ambiguous as Brookstone now asserts.
520.) Pineda expressly concluded Party City's interpretation was not only incorrect, but
also unreasonable.8 (Pineda, supra, 51 Cal.4th at p. 534.) If the California Supreme
Court concludes an interpretation of the plain language of a statute is the only reasonable
one, a party cannot persuasively assert that interpretation was unexpected or
unforeseeable simply because certain attorneys, trial courts, and/or courts of appeal may
have previously reached contrary conclusions regarding that statute. Pineda stated:
"In our view, the statute provides constitutionally adequate notice of
proscribed conduct, including its reference to a cardholder's address
as an example of personal identification information (§ 1747.08,
subd. (b)) as well as its prohibition against retailers recording any of
the information contained on identification cards (id., subd. (d)). . . .
[I]t is difficult to see how a single decision by an inferior court [i.e.,
Party City] could provide a basis to depart from the assumption of
retrospective operation." (Pineda, supra, 51 Cal.4th at p. 536.)
We reject Brookstone's argument that "[b]ecause reasonable minds could and did differ
on whether a ZIP code was 'information concerning the cardholder,' retroactive
application of the Pineda interpretation of Section 1747.08 is patently unfair."
Furthermore, we reject Brookstone's apparent argument that because Pineda's
interpretation of section 1747.08 was based, in part, on the retailer's subsequent use of
ZIP code information outside of the credit card transaction, it did not have sufficient or
To the extent Pineda further concluded section 1747.08's language was not
unconstitutionally vague, that conclusion does not contradict, but only supports, its
conclusion that its interpretation is the only reasonable one. (Pineda, supra, 51 Cal.4th at
pp. 534, 536.)
fair notice of that interpretation.9 We conclude retrospective application of Pineda's
holding to this case would not constitute "a manifest injustice," as asserted by
Brookstone also asserts Pineda's holding should not be applied retrospectively to
this case because it reasonably relied on Party City's interpretation in deciding how to
conduct its credit card transactions in compliance with section 1747.08. However,
Alvarez's complaint was filed on December 10, 2008, and it challenged Brookstone's
conduct for the past 12-month period (i.e., December 11, 2007, through December 10,
2008). Party City was not issued until December 19, 2008 (nine days after Alvarez's
complaint was filed). Therefore, contrary to Brookstone's apparent assertion, it could not
have relied on Party City's interpretation of section 1747.08 in deciding how to conduct
its credit card transactions during the period of December 11, 2007, through December
10, 2008. Like in Pineda, "while Party City, supra, 169 Cal.App.4th 497, reached a
contrary conclusion [from Pineda], both defendant's conduct and the filing of plaintiff's
complaint predate that decision; it therefore cannot be convincingly argued that the
practice of asking customers for their ZIP codes was adopted in reliance on Party City."
(Pineda, supra, 51 Cal.4th at p. 536.) The court further stated: "[I]t is difficult to see how
To the extent Brookstone implicitly so argues, we do not believe Pineda's
interpretation of section 1747.08 is limited in any way based on how (or whether) a
retailer subsequently uses ZIP code information requested from a credit card customer
and then recorded during a transaction.
a single decision by an inferior court could provide a basis to depart from the assumption
of retrospective operation." (Ibid.) Although Brookstone may have relied greatly on
Party City in determining its litigation strategy and its conduct in defending against
Alvarez's complaint (e.g., by filing a demurrer to the complaint based on Party City), that
type of conduct generally is not relevant to the question of whether a party reasonably
relied on established case law that is later disapproved or otherwise changed.
Furthermore, we reject Brookstone's assertion that the California Supreme Court
implicitly sanctioned or approved Party City's holding when it denied the plaintiff's
petition for review of that decision and only later disapproved that opinion when it issued
Pineda. The California Supreme Court in Pineda stated, in effect, that our decision in
Party City could not "provide a basis to depart from the assumption of retrospective
operation." (Ibid.) We, like the court in Pineda, conclude Brookstone "identifies no
reason that would justify a departure from the usual rule of retrospective application."
(Ibid.) None of the many cases cited by Brookstone persuade us to reach a contrary
conclusion. We conclude Pineda's holding must be applied retrospectively to this case.
Alvarez's Alternative Relief
Alvarez requests that we reverse the trial court's order purportedly finding she did
not have standing to represent the class of customers whose e-mail addresses were
requested and recorded by Brookstone during credit card transactions. However, Alvarez
does not cite, nor have we found, any express language in the challenged order (or
elsewhere) showing the trial court made that finding. Alvarez has not carried her burden
on appeal to provide a sufficient record on which we can review the purported error in
denying her standing to represent the class of e-mail customers.
Alternatively, Alvarez requests we reverse the trial court's order denying her
alternative request for leave to conduct discovery to identify a suitable representative for
Brookstone customers whose e-mail addresses were requested and recorded during credit
card transactions. She apparently requests that relief from us in the event we were to
decide Pineda does not apply retrospectively to this case, thereby leaving only the e-mail
claim but apparently without a class representative with standing.10
However, because we reverse in part the trial court's order sustaining the demurrer
to the complaint and the judgment entered thereon, we need not, and should not, address
matters the trial court should address in the first instance on remand of this matter,
including determining the scope of the putative class and the representative(s) with
standing to represent the class, which issues the court apparently has not yet determined.
We decline to award Alvarez the additional or alternative relief she requests on appeal.
Nevertheless, to the extent the trial court finds Alvarez does not have standing or is
otherwise not similarly situated to members of the putative class and cannot represent the
class, the court should follow the general rule liberally allowing amendments of
As noted above, Alvarez similarly requested that alternative relief in the trial
court. In opposing Brookstone's demurrer and motion to strike, Alvarez requested that in
the event the trial court determined ZIP codes are not personal identification information
under section 1747.08, she be granted leave to file a motion to conduct precertification
discovery to identify a suitable class representative who provided a personal e-mail
address to Brookstone during a credit card transaction. The trial court denied that request
and sustained Brookstone's demurrer to the complaint based on Party City.
complaints by plaintiffs without standing to substitute in new plaintiffs with standing and,
in the exercise of its reasonable discretion, grant or deny any future motion filed by
Alvarez for precertification discovery of the identities of class members. (See, e.g.,
CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 288-291.)
The judgment is affirmed as to the second cause of action for violation of the
constitutional right to privacy. The judgment is reversed as to the first cause of action for
violation of section 1747.08 and the matter is remanded for further proceedings
consistent with this opinion. Alvarez shall recover her costs on appeal.
HUFFMAN, Acting P. J.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
ALEXANDRA M. ALVAREZ,
Plaintiff and Appellant,
(Super. Ct. No.
BROOKSTONE COMPANY, INC.,
Defendant and Respondent.
ORDER CERTIFYING OPINION
The opinion filed December 20, 2011, is ordered certified for publication.
The attorneys of record are:
Stonebarger Law, Gene J. Stonebarger; Harrison Patterson & O'Connor and James
R. Patterson for Plaintiff and Appellant.
Winston & Strawn, David L. Aronoff, Gayle I. Jenkins and Saul S. Rostamian for
Defendant and Respondent.
HUFFMAN, Acting P. J.
Copies to: All parties