Date: 05-05-2015

Case Style: Tammie Davis v. Devanlay Retail Group, Inc.

Case Number: 13-15063

Judge: Per Curiam

Court: United States Court of Appeals for the Ninth Circuit

Plaintiff's Attorney: Gene J. Stonebarger

Defendant's Attorney: Jim Patterson

Description: 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
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DAVIS V. DEVANLAY RETAIL GROUP 3
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?
DAVIS V. DEVANLAY 4 RETAIL GROUP
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.
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, Inc., 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,
DAVIS V. DEVANLAY RETAIL GROUP 5
Inc., 108 Cal. App. 4th 447, 451 (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 (2011). The Act
provides, in pertinent part:
no person, firm, partnership, association, or
corporation that accepts credit cards for the
transaction of business shall do any of the
following:
[. . .]
Request, or require as a condition to accepting
the credit card as payment in full or in part for
goods or services, the cardholder to provide
personal identification information, which the
person, firm, partnership, association, or
corporation accepting the credit card writes,
causes to be written, or otherwise records
DAVIS V. DEVANLAY 6 RETAIL GROUP
upon the credit card transaction form or
otherwise.
Cal. Civ. Code § 1747.08(a)(2)).
The district court in this case interpreted Song-Beverly to
prohibit a retailer from requesting PII only if an objectively
reasonable consumer would perceive the request to mean that
providing PII was necessary to complete a credit card
transaction. 2012 WL 6589204, at *4. Several other district
courts in California have also interpreted Song-Beverly to
require an objective consumer perception test.1 The
Appellant, by contrast, interprets the statute to forbid retailers
1 See Gossoo v. Microsoft Corp., No. 13-CV-2043-SVW, 2013 WL
5651271, at *4 (C.D. Cal. Oct. 9, 2013) (unpublished) (“[L]iability under
the Act depends on whether a reasonable customer would perceive the
sales associate’s request for PII as a ‘condition’ on using a credit card
. . . .”); Dean v. Dick’s Sporting Goods, Inc., No. 12-CV-7313-FMOMANx,
2013 WL 3878946, at *5 (C.D. Cal. July 26, 2013) (unpublished)
(“[W]here a reasonable consumer would not perceive the request for PII
as a condition to completing the transaction, there is no liability under the
Act.”); Yeoman v. Ikea U.S. West, Inc., No. 11-CV-701-WQH-BGS, 2012
WL 1598051, at *8 (S.D. Cal. May 4, 2012) (“A court applies an objective
test to determine whether a retailer’s request for personal identification
information would be perceived as a condition of credit card payment.”);
Gormley v. Nike Inc., No. 11-CV-893-SI, 2013 WL 322538, at *7 (N.D.
Cal. Jan. 28, 2013) (unpublished) (“[T]he Court will apply an objective
standard to determine whether Nike’s policy for requesting ZIP codes
would be perceived as a condition of credit card payment . . . .”); Gass v.
Best Buy Co., 279 F.R.D. 561, 570 (C.D. Cal. 2012) (“If the customer
reasonably perceives the request for PII as a condition of completing the
credit card transaction, the Act has been violated.”); Juhline v. Ben Bridge
Jeweler, Inc., No. 11-CV-2906-WQH-NLS, 2012 WL 3986316, at *5
(S.D. Cal. Sept. 11, 2012) (unpublished) (“A court applies an objective
test to determine whether a retailer’s request for personal identification
information would be perceived as a condition of credit card payment.”).
DAVIS V. DEVANLAY RETAIL GROUP 7
from requesting PII at the point of sale when the customer
pays by credit card, regardless of whether a customer would
reasonably perceive the request as announcing a condition of
payment by credit card. The California Supreme Court has
not addressed this issue. We find support for both the district
court’s and the Appellant’s interpretations in the decisions of
California’s Courts of Appeal, as well as in the statute’s
language and legislative history.
District courts that have applied an objective consumer
perception test in Song-Beverly cases have relied primarily
on the California Court of Appeal’s decision in Florez v.
Linens ‘n Things, 108 Cal. App. 4th 447 (2003). It is
ambiguous whether Florez endorses such a test; the case
could also plausibly be read to hold that Song-Beverly
prohibits all requests for PII “in conjunction with” credit card
transactions.
Florez held that Song-Beverly prohibits a retailer from
requesting PII at the point of sale before the customer has
announced his or her preferred payment method. Id. at 453.
In interpreting the language of Song-Beverly, the court
observed:
[former] section 1747.8 is a consumer
protection statute, and the retailer’s request
for personal identification information must
be viewed from the customer’s standpoint. In
other words, the retailer’s unannounced
objective intent is irrelevant. What does
matter is whether a consumer would perceive
the store’s “request” for information as a
“condition” of the use of a credit card.
DAVIS V. DEVANLAY 8 RETAIL GROUP
Viewed from this perspective, we think there
is nothing ambiguous or unclear about the
statute. By its plain language, it prohibits a
“request” for personal identification
information in conjunction with the use of a
credit card.
Id. at 451 (citation omitted). District courts have interpreted
this portion of Florez to mean that Song-Beverly prohibits
requests for PII only if they could reasonably be perceived as
a condition to completing a credit card transaction. But we
also find it plausible that the passage means Song-Beverly
prohibits requests for PII that are “in conjunction with the use
of a credit card,” and that the case does not define precisely
when a request is in conjunction with the use of a credit card.
Is a request for PII “in conjunction with the use of a credit
card” if it comes immediately after an employee returns a
customer’s credit card?
We note that the Florez court does not appear to have
actually applied an objective test in deciding the case. The
cashier in Florez asked the customer for her phone number
before the customer announced she was paying by credit card.
Id. at 449. It is not obvious that a consumer would
reasonably believe that such a request had anything to do with
her credit card when she had not yet signaled an intention
to pay by credit card. But the court nonetheless held that
Song-Beverly prohibits pre-tender requests for PII, without
addressing whether it would be objectively reasonable for a
consumer to interpret such a request to mean that providing
PII is a condition to payment by credit card.
We also note that the Florez court explicitly rejected the
defendant’s argument that “[former] section 1747.8 allows a
DAVIS V. DEVANLAY RETAIL GROUP 9
retailer to request consumer telephone numbers before the
manner of payment is known because the timing of the
request eliminates any concern that the provision of such
information is a condition of credit card payment.” Id. at 453.
The court reasoned:
As evidenced by the 1991 amendment, section
1747.8 is designed to prevent a “request” for
personal information, because a customer
might perceive that request as a condition of
credit card payment. In effect, the 1991
amendment prevents a retailer from making
an end-run around the law by claiming the
customer furnished personal identification
data “voluntarily.” In fact, the Enrolled Bill
Report of the California Department of
Consumer Affairs, Assembly Bill No. 1477
(1991–1992 Reg. Sess.), specifically
addressed this problem, noting “[t]his bill
would prohibit requesting or requiring that
information.” As we read it, the legislative
intent suggests the 1991 amendment simply
clarified that a “request” for personal
identification information was prohibited if it
immediately preceded the credit card
transaction, even if the consumer’s response
was voluntary and made only for marketing
purposes.
Id. (emphases added). This passage cuts against interpreting
Florez to endorse an objective consumer perception test. The
passage suggests instead that Song-Beverly prohibits requests
for PII that a consumer might interpret as a condition to
DAVIS V. DEVANLAY 10 RETAIL GROUP
payment by credit card, even if it would not be objectively
reasonable to do so.
The ambiguous language of the statute itself offers little
guidance about whether courts should apply an objective
consumer perception test. The relevant portion of section
1747.08(a) states that businesses that accept credit cards shall
not “[r]equest, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to provide personal identification information
. . . .” The statute’s punctuation makes it ambiguous whether
the clause “as a condition to accepting the credit card as
payment” modifies “request” in addition to modifying
“require.” If it does modify “request,” this would support the
Appellee’s position that Song-Beverly only forbids a request
for PII if the request could lead a consumer to reasonably
believe that providing PII is a condition to payment by credit
card. If the clause does not modify “request,” the plain
meaning of the statute would appear to broadly prohibit a
retailer from requesting PII when a customer pays by credit
card.
This latter interpretation finds some support in the plain
language of the statute. In White v. County of Sacramento,
31 Cal. 3d 676 (1982), the California Supreme Court
interpreted a statute with a very similar grammatical structure
to the disputed portion of Song-Beverly. The statute in White
defined “punitive action” as “any action which may lead to
dismissal, demotion, suspension, reduction in salary, written
reprimand, or transfer for purposes of punishment.” Id. at
679 (emphasis added). The defendants argued that the clause
“for purposes of punishment” modified all of the preceding
categories, including “demotion.” Id. The court rejected this
DAVIS V. DEVANLAY RETAIL GROUP 11
interpretation because it violated “the most fundamental rules
of statutory construction . . . .” Id. at 680.
The court in White applied a rule of construction called
the last antecedent rule. Under the rule, “qualifying words,
phrases and clauses are to be applied to the words or phrases
immediately preceding and are not to be construed as
extending to or including others more remote.” Id. (quoting
Bd. of Port Comm’rs v. Williams, 9 Cal. 2d 381, 389 (1937))
(internal quotation marks omitted). As applied in White, “the
rule require[d] that the phrase ‘for purposes of punishment’
be read to qualify only the word ‘transfer’ and not the words
‘dismissal,’ ‘demotion,’ ‘suspension,’ ‘reduction in salary,’
and ‘written reprimand.’” Id. As applied here, the rule of
antecedents suggests that the clause beginning “as a
condition” only modifies “require,” not “request.”
The court in White also examined the punctuation of the
statute. It reasoned that where an entire phrase is set off from
preceding terms with a comma followed by the word “or,” it
“indicates an intention to use it disjunctively so as to
designate alternative or separate categories.” Id. at 680.
Here, “request” is set apart from “or require as a condition to
accepting the credit card as payment” by a comma. This
would normally indicate that the clause “as a condition to
accepting the credit card as payment” does not modify
“request.”2 See id.
2 If the clause were meant to modify both “request” and “require,” the
more natural punctuation would be: “[r]equest or require, as a condition
to accepting the credit card as payment . . . .” See White, 31 Cal. 3d at 680
(“Evidence that a qualifying phrase is supposed to apply to all antecedents
instead of only to the immediately preceding one may be found in the fact
that it is separated from the antecedents by a comma.”).
DAVIS V. DEVANLAY 12 RETAIL GROUP
While the reasoning in White appears to support the
Appellant’s construction of Song-Beverly’s plain language,
California Courts of Appeal have not applied the last
antecedent rule in interpreting the disputed portion of the
statute. In Absher v. AutoZone, Inc., a California Court of
Appeal held that section 1747.08(a) did not apply to a refund
for the return of merchandise purchased by credit card.
164 Cal. App. 4th 332, 335 (2008). The court explicitly
interpreted subdivision (a)(1) to “prohibit[] merchants from
requesting or requiring credit card customers to write
personal identification information on a credit card form as
a condition precedent to accepting payment by credit card.”
Id. at 343 (emphases added). The plaintiff in Absher urged
the court to apply the last antecedent rule, arguing that:
the placement of the commas indicates that
the qualifying phrase “as a condition to
accepting the credit card as payment” applies
only to “require,” not to “request.” Therefore,
under this punctuation-based interpretation,
subdivisions (a)(1) and (a)(2) prohibit a
merchant from requesting that a customer
provide personal information on a card form
in connection with any credit card transaction
. . . because a request for such information is
not subject to the phrase “as a condition to
accepting payment in full or in part for goods
and services.”
Id. at 344. The court rejected this interpretation, finding that
it would produce a number of anomalous results. Id. at
344–45. Absher thus counsels against interpreting Song-
Beverly in the way its text alone suggests it should be
interpreted.
DAVIS V. DEVANLAY RETAIL GROUP 13
Song-Beverly’s legislative history is also inconclusive.
As originally enacted, Song-Beverly did not contain section
1747.08 or an analogous provision. Pineda, 51 Cal. 4th at
534–35. Former section 1747.8 was enacted in 1990 as “a
response to two principal privacy concerns”:
[F]irst, that with increased use of computer
technology, very specific and personal
information about a consumer’s spending
habits was being made available to anyone
willing to pay for it; and second, that acts of
harassment and violence were being
committed by store clerks who obtained
customers’ phone numbers and addresses.
Florez, 108 Cal. App. 4th at 452. The 1990 version of the
Act only forbade businesses from “requir[ing] the cardholder,
as a condition to accepting the credit card, to provide personal
identification information . . . .” Pineda, 51 Cal. 4th at 535.
It did not explicitly prohibit “requests” for such information.
Thus, at least in 1990, the Legislature’s intent was “to protect
consumers . . . [by] prohibit[ing] businesses from ‘requiring
information that merchants, banks or credit card companies
do not require or need.’” Id. The 1990 version of the Act
appears to have been aimed at preventing retailers from
collecting personal information under the false pretense that
the information was required to complete a credit card
transaction. This provides some support for interpreting the
Act to prohibit only those requests for PII that consumers
could reasonably construe as a condition to payment by credit
card.
However, “[i]n 1991, the provision was broadened,
forbidding businesses from ‘request[ing], or requir[ing] as a
DAVIS V. DEVANLAY 14 RETAIL GROUP
condition to accepting the credit card . . . , the cardholder to
provide personal identification information . . . .’” Id. The
1991 amendment was intended to “prevent[] a retailer from
making an end-run around the law by claiming the customer
furnished personal identification data ‘voluntarily,’” and “to
prevent retailers from ‘requesting’ personal identification
information and then matching it with the consumer’s credit
card number.” Florez, 108 Cal. App. 4th at 453. If these
were indeed the purposes of the 1991 amendment, it would
be somewhat unusual if the Act only prohibited pre-tender
requests, since post-tender requests would also enable the
retailer to match PII with credit card information.
We note that the legislative history is also inconclusive
regarding whether the clause “as a condition to accepting the
credit card as payment” was intended to modify “request.”
On one hand, the Senate Committee on the Judiciary Analysis
of Assembly Bill No. 1477 explained that the 1991 bill
“would clarify that persons may neither require nor request,
as a condition to accepting the credit card, the taking or
recording of personal identification information from the
cardholder.” Id. at 451. If the Act had been drafted this way,
the clause beginning “as a condition . . .” would clearly
modify both “require” and “request.” On the other hand, the
Legislative Counsel’s Digest of the 1991 amendment states:
“[t]his bill would provide that the merchant in such a
transaction may neither request personal identification
information, nor require that information as a condition to
acceptance of the card . . . .” Id. at 453 n.5. This suggests
that the 1991 Amendment was meant instead to prohibit all
requests for PII at the point of sale if a customer uses a credit
card, because the clause “request personal identification
information” is set off by a comma from “nor require that
information as a condition to acceptance of the card.”
DAVIS V. DEVANLAY RETAIL GROUP 15
Because we find no controlling precedent, and because
the meaning of the statute is ambiguous, we are uncertain
whether the district courts are correctly applying California
law in construing Song-Beverly to require an objective test of
consumer perceptions. We therefore respectfully request that
the California Supreme Court answer the question described
in Part I.
IV. Administrative Information
The Appellant, Tammie Davis, should be deemed the
petitioner if the California Supreme Court accepts this
request. Cal. R. Ct. 8.548(b)(1).
The names and addresses of counsel are as follows:
Counsel for Plaintiff-Appellant Tammie Davis:
Gene J. Stonebarger
Stonebarger Law, A Professional Corporation
75 Iron Point Circle, Suite 145
Folsom, CA 95630
James R. Patterson
Patterson Law Group, A Professional Corporation
402 W. Broadway, 29th Floor
San Diego, CA 92101
Counsel for Defendant-Appellee Devanlay Retail Group, Inc.:
Matthew R. Orr, Scott R. Hatch, Melinda Evans
Call & Jensen, A Professional Corporation
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
DAVIS V. DEVANLAY 16 RETAIL GROUP
The clerk of this court shall submit to the California
Supreme Court, under seal of the United States Court of
Appeals for the Ninth Circuit, copies of all relevant briefs and
excerpts of record, as well as an original and ten copies of
this order, with a certificate of service on the parties. See Cal.
R. Ct. 8.548(c), (d).
This case is withdrawn from submission. Further
proceedings before us are stayed pending the California
Supreme Court’s decision. The parties shall notify the clerk
of this court within seven days after the California Supreme
Court accepts or declines this request, and again within seven
days if the California Supreme Court issues a decision. The
panel retains jurisdiction over further proceedings.

Outcome: IT IS SO ORDERED.

Plaintiff's Experts:

Defendant's Experts:

Comments: