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Davis v. Devanlay Retail Group, Inc.

United States Court of Appeals, Ninth Circuit

May 5, 2015

TAMMIE DAVIS, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
v.
DEVANLAY RETAIL GROUP, INC., a Delaware corporation, Defendant-Appellee

D.C. No. 2:11-cv-01719-KJMCKD.

SUMMARY  [*]

Certification to the California Supreme Court

The panel certified the following question to the California Supreme Court:

Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer's personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?

Before: Consuelo M. Callahan, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.

ORDER CERTIFYING A QUESTION TO THE CALIFORNIA SUPREME COURT

Page 360

ORDER

PER CURIAM

This appeal requires us to resolve whether the Song-Beverly Credit Card Act (Song-Beverly) prohibits a retailer from requesting a customer's personal identification information (PII) at the point of sale after the customer has paid with a credit card, even if it would not be objectively reasonable for the customer to construe the request to mean that providing PII is required to pay by credit card. The answer to this question could have a significant impact on the practices of thousands of California retailers, as a broad construction of Song-Beverly could prohibit many retailers' practice of requesting PII from customers immediately after they have completed a credit card transaction. We find no controlling precedent in the decisions of the California Supreme Court or Courts of Appeal, see Cal. R. Ct. 8.548(a)(2), and find the statute's language and legislative history ambiguous. For these reasons, we think it appropriate that the state court of last resort be given an opportunity to resolve the question in the first instance.

We therefore respectfully ask the Supreme Court of California to exercise its discretion to decide the certified question set forth in Part I of this order.

I. Certified Question

Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question of state law:

Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer's personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?

The Court may reformulate our question, and its exposition of the issues involved should not be limited by the question's phrasing. Cal. R. Ct. 8.548(f)(5). We will accept and follow the Court's decision. Cal. R. Ct. 8.548(b)(2).

II. Background

The Appellant, Tammie Davis, visited a Roseville, California retail clothing store owned by the Appellee, Devanlay Retail Group, Inc. (Devanlay), on April 2, 2010. She brought an item to the cash register for purchase and provided her credit card to the cashier. As Davis was placing her credit card back in her purse, the cashier asked her " What's your [zip] code?" Davis did not recall whether she had received her receipt when the request was made.

Davis filed a putative class action against Devanlay in the Superior Court of California, County of Placer. Davis alleged that Devanlay violated Song-Beverly, California Civil Code § 1747.08, by requesting and recording the PII of its retail customers who pay with credit cards. Devanlay removed the case to the Federal District Court for the Eastern District of California on June 27, 2011.

Page 361

Devanlay moved for summary judgment on June 5, 2012. The district court granted summary judgment in favor of Devanlay on October 17, 2012. Davis v. Devanlay Retail Group, No. 11-CV-01719-KJM-CKD, 2012 WL 6589205 (E.D. Cal. Dec. 17, 2012) (unpublished). The district court reasoned that, under Song-Beverly, " [t]he permissibility of a retailer's request for a customer's personal information turns on 'whether a consumer would perceive the store's 'request' for information as a 'condition' of the use of a credit card.'" Id. at *3 (quoting Florez v. Linens 'n Things, Inc., 108 Cal.App.4th 447, 451, 133 Cal.Rptr.2d 465 (2003)). The court therefore evaluated Devanlay's policy " under an objective standard." Id. at *4. The district court found that " [v]iewed objectively, Devanlay's policy of waiting until the customer has her receipt in hand conveys that the transaction has concluded and that providing a zip code is not necessary to complete the transaction." Id.

A timely appeal to this court followed, raising the question of California law described in Part I.

III. Explanation of Request for Certification

The Song-Beverly Credit Card Act " prohibits businesses from requesting that cardholders provide 'personal identification information' during credit card transactions, and then recording that information." Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524, 527, 120 ...


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