Pineda v. Williams-Sonoma

Filed 2/10/11


Plaintiff and Appellant,
Ct.App. 4/1 D054355
San Diego County
Defendant and Respondent.
Super. Ct. No.
____________________________________) 37-2008-00086061-CU-BT-CTL
The Song-Beverly Credit Card Act of 1971 (Credit Card Act) (Civ. Code,
? 1747 et seq.) is ?designed to promote consumer protection.? (Florez v. Linens
?N Things, Inc. (2003) 108 Cal.App.4th 447, 450 (Florez).) One of its provisions,
section 1747.08, prohibits businesses from requesting that cardholders provide
?personal identification information? during credit card transactions, and then
recording that information. (Civ. Code, ? 1747.08, subd. (a)(2).)1
Plaintiff sued defendant retailer, asserting a violation of the Credit Card
Act. Plaintiff alleges that while she was paying for a purchase with her credit card
in one of defendant?s stores, the cashier asked plaintiff for her ZIP code.
Believing it necessary to complete the transaction, plaintiff provided the requested

All unlabeled statutory references are to the Civil Code.

information and the cashier recorded it. Plaintiff further alleges that defendant
subsequently used her name and ZIP code to locate her home address.2
We are now asked to resolve whether section 1747.08 is violated when a
business requests and records a customer?s ZIP code during a credit card
transaction. In light of the statute?s plain language, protective purpose, and
legislative history, we conclude a ZIP code constitutes ?personal identification
information? as that phrase is used in section 1747.08. Thus, requesting and
recording a cardholder?s ZIP code, without more, violates the Credit Card Act.
We therefore reverse the contrary judgment of the Court of Appeal and remand for
further proceedings consistent with our decision.
Because we are reviewing the sustaining of a demurrer, we assume as true
all facts alleged in the complaint. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45
Cal.4th 992, 996.)
In June 2008, plaintiff Jessica Pineda filed a complaint against defendant
Williams-Sonoma Stores, Inc.3 The complaint alleged the following:
Plaintiff visited one of defendant?s California stores and selected an item
for purchase. She then went to the cashier to pay for the item with her credit card.

ZIP is an acronym that stands for ?Zone Improvement Plan.? (U.S. Postal
Service, Mailing Standards of the United States Postal Service: Domestic Mail
Manual, ch. 602, subtopic 1.8.1 <> [as of
Feb. 10, 2011] (DMM).)
According to its Web site, Williams-Sonoma is ?the premier specialty
retailer of home furnishings and gourmet cookware in the United States.?
(Williams-Sonoma, About Us < customer-
service/about-us.html> [as of Feb. 10, 2011].) The company operates ?more than
250 stores nationwide, a direct-mail business that distributes millions of catalogs a
year, and a highly successful e-commerce site.? (Ibid.)

The cashier asked plaintiff for her ZIP code and, believing she was required to
provide the requested information to complete the transaction, plaintiff provided it.
The cashier entered plaintiff?s ZIP code into the electronic cash register and then
completed the transaction. At the end of the transaction, defendant had plaintiff?s
credit card number, name, and ZIP code recorded in its database.
Defendant subsequently used customized computer software to perform
reverse searches from databases that contain millions of names, e-mail addresses,
telephone numbers, and street addresses, and that are indexed in a manner
resembling a reverse telephone book. The software matched plaintiff?s name and
ZIP code with plaintiff?s previously undisclosed address, giving defendant the
information, which it now maintains in its own database. Defendant uses its
database to market products to customers and may also sell the information it has
compiled to other businesses.
Plaintiff filed the matter as a putative class action, alleging defendant had
violated section 1747.08 and the unfair competition law (UCL) (Bus. & Prof.
Code, ? 17200 et seq.). She also asserted an invasion of privacy claim. Defendant
demurred, arguing a ZIP code is not ?personal identification information? as that
phrase is used in section 1747.08, that plaintiff lacked standing to bring her UCL
claim, and that the invasion of privacy claim failed for, among other reasons,
failure to allege all necessary elements. Plaintiff conceded the demurrer as to the
UCL claim, and the trial court subsequently sustained the demurrer as to the
remaining causes of action without leave to amend. As for the Credit Card Act
claim, the trial court agreed with defendant and concluded a ZIP code does not
constitute ?personal identification information? as that term is defined in section
The Court of Appeal affirmed in all respects. With respect to the Credit
Card Act claim, the Court of Appeal relied upon Party City Corp. v. Superior

Court (2008) 169 Cal.App.4th 497 (Party City), which similarly concluded a ZIP
code, without more, does not constitute personal identification information.4
Plaintiff sought our review regarding both her Credit Card Act claim and
her invasion of privacy cause of action. We granted review, but only of plaintiff?s
Credit Card Act claim.5
We independently review questions of statutory construction. (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) In doing so, we look
first to the words of a statute, ?because they generally provide the most reliable

Both opinions were issued by Division One of the Fourth District Court of
In its answer brief, defendant argues our jurisdiction to grant review lapsed
under California Rules of Court, rule 8.512(b). Under the rule, we may order
review within 60 days after a petition for review is filed. (Ibid.) Before the 60
days have expired, we may extend the time in which to consider review, to a date
not later than 90 days after a petition was filed. (Ibid.) If we have not ruled on the
petition within the time allowed, it is deemed denied. (Ibid.)
The docket shows plaintiff?s petition for review was filed on November 25,
2009. On February 4, 2010, after 60 days had already run, an order was entered
extending time for review to February 23, 2010, 90 days after the petition was
filed. The order was entered nunc pro tunc as of January 22, 2010, a date before
the original 60-day window had expired. Defendant contends such a nunc pro
tunc order was invalid. We disagree.
The petition was originally due to be considered prior to the expiration of
the 60 days. Concluding we needed more time, we put the matter over to a later
petitions conference. The act of putting the matter over necessarily included our
extending time for review. However, the clerk inadvertently failed to enter an
order reflecting that act. Under the circumstances, the nunc pro tunc order merely
caused the record to show something that was actually done but that was
mistakenly not entered in the record at the time the act was done. Thus, the use of
a nunc pro tunc order was appropriate and our subsequent grant of review on
February 10, 2010, was within this court?s jurisdiction. (See Cowdery v. London
& San Francisco Bank
(1903) 139 Cal. 298, 306.)

indicator of legislative intent.? (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) We
give the words their usual and ordinary meaning (Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735), while construing them in light of the statute as a whole and
the statute?s purpose (Walker v. Superior Court (1998) 47 Cal.3d 112, 124). ?In
other words, ? ?we do not construe statutes in isolation, but rather read every
statute ?with reference to the entire scheme of law of which it is part so that the
whole may be harmonized and retain effectiveness.? ? ? ? (Smith v. Superior Court
(2006) 39 Cal.4th 77, 83.) We are also mindful of ?the general rule that civil
statutes for the protection of the public are, generally, broadly construed in favor
of that protective purpose.? (People ex rel. Lungren v. Superior Court (1996) 14
Cal.4th 294, 313 (Lungren); see Florez, supra, 108 Cal.App.4th at p. 450 [liberally
construing former ? 1747.8, now ? 1747.08].) ?If there is no ambiguity in the
language, we presume the Legislature meant what it said and the plain meaning of
the statute governs.? (People v. Snook (1997) 16 Cal.4th 1210, 1215.) ?Only
when the statute?s language is ambiguous or susceptible of more than one
reasonable interpretation, may the court turn to extrinsic aids to assist in
interpretation.? (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th
1094, 1103.) Our discussion thus begins with the words of section 1747.08.
Section 1747.08, subdivision (a) provides, in pertinent part, ?[N]o person,
firm, partnership, association, or corporation that accepts credit cards for the
transaction of business shall . . . : [?] . . . [?] (2) 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 upon the credit card transaction form or

otherwise.? (? 1747.08, subd. (a)(2), italics added.)6 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.? (? 1747.08, subd. (b).)
Because we must accept as true plaintiff?s allegation that defendant requested and
then recorded her ZIP code, the outcome of this case hinges on whether a
cardholder?s ZIP code, without more, constitutes personal identification
information within the meaning of section 1747.08. We hold that it does.
Subdivision (b) defines personal identification information as ?information
concerning the cardholder . . . including, but not limited to, the cardholder?s
address and telephone number.? (? 1747.08, subd. (b), italics added.)
?Concerning? is a broad term meaning ?pertaining to; regarding; having relation
to; [or] respecting . . . .? (Webster?s New Internat. Dict. (2d ed. 1941) p. 552.) A
cardholder?s ZIP code, which refers to the area where a cardholder works or lives
(see DMM, supra, ch. 602, subtopic 1.8.1 <
htm> [as of Feb. 10, 2011] [each U.S. post office is assigned at least one unique 5-
digit ZIP code), is certainly information that pertains to or regards the cardholder.
In nonetheless concluding the Legislature did not intend for a ZIP code,
without more, to constitute personal identification information, the Court of
Appeal pointed to the enumerated examples of such information in subdivision
(b), i.e., ?the cardholder?s address and telephone number.? (? 1747.08, subd. (b).)

Section 1747.08 contains some exceptions, including when a credit card is
being used as a deposit or for cash advances, when the entity accepting the card is
contractually required to provide the information to complete the transaction or is
obligated to record the information under federal law or regulation, or when the
information is required for a purpose incidental to but related to the transaction,
such as for shipping, delivery, servicing, or installation. (Id., subd. (c).)

Invoking the doctrine ejusdem generis, whereby a ?general term ordinarily is
understood as being ? ?restricted to those things that are similar to those which are
enumerated specifically? ? ? (Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725, 743 (conc. opn. of George, C.J.)), the Court of Appeal reasoned that
an address and telephone number are ?specific in nature regarding an individual.?
By contrast, the court continued, a ZIP code pertains to the group of individuals
who live within the ZIP code. Thus, the Court of Appeal concluded, a ZIP code,
without more, is unlike the other terms specifically identified in subdivision (b).
There are several problems with this reasoning. First, a ZIP code is readily
understood to be part of an address; when one addresses a letter to another person,
a ZIP code is always included. The question then is whether the Legislature, by
providing that ?personal identification information? includes ?the cardholder?s
address? (? 1747.08, subd. (b)), intended to include components of the address.
The answer must be yes. Otherwise, a business could ask not just for a
cardholder?s ZIP code, but also for the cardholder?s street and city in addition to
the ZIP code, so long as it did not also ask for the house number. Such a
construction would render the statute?s protections hollow. Thus, the word
?address? in the statute should be construed as encompassing not only a complete
address, but also its components.
Second, the court?s conclusion rests upon the assumption that a complete
address and telephone number, unlike a ZIP code, are specific to an individual.
That this assumption holds true in all, or even most, instances is doubtful. In the
case of a cardholder?s home address, for example, the information may pertain to a
group of individuals living in the same household. Similarly, a home telephone
number might well refer to more than one individual. The problem is even more
evident in the case of a cardholder?s work address or telephone number ? such
information could easily pertain to tens, hundreds, or even thousands of

individuals.7 Of course, section 1747.08 explicitly provides that a cardholder?s
address and telephone number constitute personal identification information (id.,
subd. (b)); that such information might also pertain to individuals other than the
cardholder is immaterial. Similarly, that a cardholder?s ZIP code pertains to
individuals in addition to the cardholder does not render it dissimilar to an address
or telephone number.
More significantly, the Court of Appeal ignores another reasonable
interpretation of what the enumerated terms in section 1747.08, subdivision (b)
have in common, that is, they both constitute information unnecessary to the sales
transaction that, alone or together with other data such as a cardholder?s name or
credit card number, can be used for the retailer?s business purposes. Under this
reading, a cardholder?s ZIP code is similar to his or her address or telephone
number, in that a ZIP code is both unnecessary to the transaction and can be used,
together with the cardholder?s name, to locate his or her full address. (Levitt and
Rosch, Computer Counselor: Putting Internet Search Engines to New Uses (May
2006) 29 L.A. Law. 55, 55; see Solove, Privacy and Power: Computer Databases
and Metaphors for Information Privacy (2001) 53 Stan. L.Rev. 1393, 1406-1408.)
The retailer can then, as plaintiff alleges defendant has done here, use the
accumulated information for its own purposes or sell the information to other

Party City, upon which the Court of Appeal opinion heavily relies, assumes
that a cardholder?s work address or telephone number constitutes personal
identification information. (Party City, supra, 169 Cal.App.4th at p. 518.) While
we express no opinion on this point, we acknowledge that nothing in section
1747.08, subdivision (b), explicitly limits its scope to a cardholder?s home address
or telephone number.

There are several reasons to prefer this latter, broader interpretation over
the one adopted by the Court of Appeal. First, the interpretation is more consistent
with the rule that courts should liberally construe remedial statutes in favor of their
protective purpose (Lungren, supra, 14 Cal.4th at p. 313), which, in the case of
section 1747.08, includes addressing ?the misuse of personal identification
information for, inter alia, marketing purposes.? (Absher v. AutoZone, Inc. (2008)
164 Cal.App.4th 332, 345 (Absher).)8 The Court of Appeal?s interpretation, by
contrast, would permit retailers to obtain indirectly what they are clearly
prohibited from obtaining directly, ?end-running? the statute?s clear purpose. This
is so because information that can be permissibly obtained under the Court of
Appeal?s construction could easily be used to locate the cardholder?s complete
address or telephone number. Such an interpretation would vitiate the statute?s
effectiveness. Moreover, that the Legislature intended a broad reading of section
1747.08 can be inferred from the expansive language it employed, e.g.,
?concerning? in subdivision (b) and ?any personal identification information? in
subdivision (a)(1). (Italics added.) The use of the broad word ?any? suggests the
Legislature did not want the category of information protected under the statute to
be narrowly construed.

Party City, supra, 169 Cal.App.4th at pages 510 to 511, by contrast,
concludes that section 1747.08, subdivision (b), should be strictly construed under
the rule for construing penal statutes because violations of section 1747.08 are
subject to a ?mandatory civil penalty.? We disagree. First, as we held in Linder v.
Thrifty Oil Co.
(2000) 23 Cal.4th 429, 448, section 1747.08, subdivision (e), ?does
not mandate fixed penalties; rather, it sets maximum penalties of $250 for the first
violation and $1,000 for each subsequent violation.? Second, ?the rule of strict
construction of penal statutes has generally been applied in this state to criminal
statutes, rather than statutes which prescribe only civil monetary penalties.?
(Lungren, supra, 14 Cal.4th at p. 312.)

Second, only the broader interpretation is consistent with section 1747.08,
subdivision (d). Subdivision (d) permits businesses to ?requir[e] the cardholder,
as a condition to accepting the credit card . . . , to provide reasonable forms of
positive identification, which may include a driver?s license or a California state
identification card, . . . provided that none of the information contained thereon is
written or recorded . . . .? (? 1747.08, subd. (d), italics added.) Of course,
driver?s licenses and state identification cards contain individuals? addresses,
including ZIP codes. (Veh. Code, ?? 12811, subd. (a)(1)(A), 13005, subd. (a);
People v. McKay (2000) 27 Cal.4th 601, 620.) Thus, under Civil Code section
1747.08, subdivision (d), a business may require a cardholder to provide a driver
license, but it may not record any of the information on the license, including the
cardholder?s ZIP code. Under the Court of Appeal?s interpretation, the
Legislature inexplicably permitted in section 1747.08, subdivision (a)(2), what it
explicitly forbade in subdivision (d) ? the requesting and recording of a ZIP
code.9 We decline to conclude such an inconsonant result was intended. (Absher,
supra, 164 Cal.App.4th at p. 343 [?A statute open to more than one interpretation
should be interpreted so as to ? ?avoid anomalous or absurd results.? ?
In light of the foregoing, and particularly given the internal inconsistency
that would arise under the Court of Appeal?s alternate construction, we conclude

Defendant points out that a cardholder?s name, which all parties agree can
permissibly be obtained by the retailer, also appears on a driver?s license. This is
true, albeit irrelevant, as subdivision (b) explicitly excludes information appearing
on the credit card, such as a cardholder?s name, from the definition of personal
identification information. (? 1747.08, subd. (b).)
The Court of Appeal did not discuss subdivision (d) of section 1747.08.
While Party City, supra, 169 Cal.App.4th at page 518, did briefly mention the
issue, the court dismissed it without explanation.

that the only reasonable interpretation of section 1747.08 is that personal
identification information includes a cardholder?s ZIP code. We disapprove Party
City Corp. v. Superior Court, supra, 169 Cal.App.4th 497, to the extent it is
inconsistent with our opinion.
Even were we to conclude that the alternative interpretation urged by
defendant and adopted by the Court of Appeal was reasonable, the legislative
history of section 1747.08 offers additional evidence that plaintiff?s construction is
the correct one.11 The Credit Card Act was enacted in 1971 to ?impose[] fair
business practices for the protection of the consumers.? (Young v. Bank of
America (1983) 141 Cal.App.3d 108, 114.) It made ?major changes in the law
dealing with credit card practices by prescribing procedures for billing, billing
errors, dissemination of false credit information, issuance and unauthorized use of
credit cards.? (Sen. Song, sponsor of Sen. Bill No. 97 (1971 Reg. Sess.) Enrolled
Bill mem. to Governor (Oct. 12, 1971) p. 1.) As originally enacted, however, the
Credit Card Act did not contain section 1747.08 or any analogous provision.
In 1990, the Legislature enacted former section 1747.812 (Assem. Bill
No. 2920 (1989-1990 Reg. Sess.) ? 1), seeking ?to address the misuse of personal
identification information for, inter alia, marketing purposes, and [finding] that
there would be no legitimate need to obtain such information from credit card
customers if it was not necessary to the completion of the credit card transaction.?
(Absher, supra, 164 Cal.App.4th at p. 345.) The statute?s overriding purpose was

The Court of Appeal did not discuss the legislative history of section
1747.08. And, while the opinion in Party City, supra, 169 Cal.App.4th at pages
514-516, has a section titled ?Legislative History Arguments,? the court did not
actually cite or discuss any of the statute?s legislative history.
The statute was later amended and renumbered as section 1747.08. (Stats.
2004, ch. 183, ? 29.)

to ?protect the personal privacy of consumers who pay for transactions with credit
cards.? (Assem. Com. on Finance & Insurance, Analysis of Assem. Bill No. 2920
(1989-1990 Reg. Sess.) as amended Mar. 19, 1990, p. 2.)
The Senate Committee on Judiciary?s analysis highlighted the motivating
concerns: ?The Problem [?] . . . [?] Retailers acquire this additional personal
information for their own business purposes ? for example, to build mailing and
telephone lists which they can subsequently use for their own in-house marketing
efforts, or sell to direct-mail or tele-marketing specialists, or to others.? (Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 2920 (1989-1990 Reg. Sess.) as
amended June 27, 1990, pp. 3-4.) To protect consumers, the Legislature sought to
prohibit businesses from ?requiring information that merchants, banks or credit
card companies do not require or need.? (Assem. Com. on Finance and Insurance,
Analysis of Assem. Bill No. 2920 (1989-1990 Reg. Sess.) as amended Mar. 19,
1990, p. 2.)
A year later, in 1991, the Legislature amended former section 1747.8.
(Assem. Bill No. 1477 (1991-1992 Reg. Sess.) ? 2.) Two of the changes shed
further light on the Legislature?s intent regarding former section 1747.8?s scope.
First, the Legislature added a provision (former ? 1747.8, subd. (d)) (former
subdivision (d)) substantially similar to the subdivision (d) now in section
1747.08, permitting businesses to require cardholders provide identification so
long as none of the information contained thereon was recorded. (Stats. 1991, ch.
1089, ? 2, p. 5042.) The adoption of former subdivision (d) was described as ?a
clarifying, nonsubstantive change.? (State & Consumer Services Agency,
Enrolled Bill Rep. on Assem. Bill No. 1477 (1991-1992 Reg. Sess.) Sept. 9, 1991,
p. 3.) Defendant argues that, because the adoption of former subdivision (d) was
intended to be nonsubstantive, it is irrelevant to our inquiry here. We draw the
opposite conclusion. That former subdivision (d) was considered merely

clarifying and nonsubstantive suggests the Legislature understood former section
1747.8 to already prohibit the requesting and recording of any of the information,
including ZIP codes, contained on driver?s licenses and state identification cards.
Second, the 1990 version of former section 1747.8 forbade businesses from
?requir[ing] the cardholder, as a condition to accepting the credit card, to provide
personal identification information . . . .? (Stats. 1990, ch. 999, ? 1, p. 4192.) In
1991, the provision was broadened, forbidding businesses from ?request[ing], or
requir[ing] as a condition to accepting the credit card . . . , the cardholder to
provide personal identification information . . . .? (Stats. 1991, ch. 1089, ? 2,
p. 5043, italics added.) ?The obvious purpose of the 1991 amendment was to
prevent retailers from ?requesting? personal identification information and then
matching it with the consumer?s credit card number.? (Florez, supra, 108
Cal.App.4th at p. 453.) ?[T]he 1991 amendment prevents a retailer from making
an end-run around the law by claiming the customer furnished personal
identification data ?voluntarily.? ? (Ibid.) That the Legislature so expanded the
scope of former section 1747.8 is further evidence it intended a broad consumer
protection statute.
To be sure, the legislative history does not specifically address the scope of
section 1747.08, subdivision (b) or whether the Legislature intended a ZIP code,
without more, to constitute personal identification information. However, the
legislative history of the Credit Card Act in general, and section 1747.08 in
particular, demonstrates the Legislature intended to provide robust consumer
protections by prohibiting retailers from soliciting and recording information
about the cardholder that is unnecessary to the credit card transaction. Plaintiff?s
interpretation of section 1747.08 is the one that is most consistent with that
legislative purpose.

Thus, in 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
We briefly address defendant?s contention that this construction violates
due process. First, defendant argues such an interpretation is unconstitutionally
oppressive because it would result in penalties ?approach[ing] confiscation of
[defendant?s] entire business . . . .? Not so. As we have previously noted (ante, at
p. 9, fn. 8), the statute ?does not mandate fixed penalties; rather, it sets maximum
penalties of $250 for the first violation and $1,000 for each subsequent violation.?
(Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 448.) ?Presumably this could
span between a penny (or even the proverbial peppercorn we all encountered in
law school) to the maximum amounts authorized by the statute.? (The TJX
Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 86.) Thus, the
amount of the penalties awarded rests within the sound discretion of the trial court.
Second, defendant contends that plaintiff?s interpretation renders the statute
unconstitutionally vague and, thus, our adoption of that interpretation should be
prospectively applied only. We are not persuaded. 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)).
Moreover, while Party City, supra, 169 Cal.App.4th 497, reached a contrary
conclusion, 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.

Indeed, it is difficult to see how a single decision by an inferior court could
provide a basis to depart from the assumption of retrospective operation. (See
People v. Guerra (1984) 37 Cal.3d 385, 401, disapproved on another ground in
People v. Hedgecock (1990) 51 Cal.3d 395, 409-410.) In sum, defendant
identifies no reason that would justify a departure from the usual rule of
retrospective application. (See Grafton Partners v. Superior Court (2005) 36
Cal.4th 944, 967.)
The judgment of the Court of Appeals is reversed and the case is remanded
for further proceedings consistent with this decision.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Pineda v. Williams-Sonoma Stores, Inc.

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 178 Cal.App.4th 714
Rehearing Granted


Opinion No.

Date Filed: February 10, 2011


County: San Diego
Judge: Ronald S. Prager



Lindsay & Stonebarger, Stonebarger Law, Gene J. Stonebarger, James M. Lindsay, Richard D. Lambert;
Harrison Patterson O?Connor & Kinkead, Harrison Patterson & O?Connor, James R. Patterson, Harry W.
Harrison, Matthew J. O?Connor and Cary A. Kinkead for Plaintiff and Appellant.

Atkins & Davidson, Todd C. Atkins and Clark L. Davidson for the Consumer Federation of California and
The Privacy Rights Clearinghouse as Amici Curiae on behalf of Plaintiff and Appellant.

Sheppard Mullin Richter & Hampton, P. Craig Cardon and Elizabeth S. Berman for Defendant and

Linda A. Wooley; Venable, John F. Cooney, Michael B. Garfinkel and Paul A. Rigali for Direct Marketing
Association as Amicus Curiae on behalf of Defendant and Respondent.

Knox, Lemmon, Anapolsky & Schrimp and Thomas S. Knox for California Retailers Association as
Amicus Curiae on behalf of Defendant and Respondent.

Cooley Godward Kronish, Cooley, Michelle C. Doolin, Lori R.E. Ploeger, Leo P. Norton and Darcie A.
Tilly for The Gap, Inc., Old Navy, LLC, and Banana Republic, LLC, as Amici Curiae on behalf of
Defendant and Respondent.

Call & Jensen, Matthew R. Orr, Melinda Evans and Scott R. Hatch for Kmart Holding Corporation as
Amicus Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Gene J. Stonebarger
Stonebarger Law
75 Iron Point Circle, Suite 145
Folsom, CA 95630
(916) 235-7140

Todd C. Atkins
Atkins & Davidson
101 West Broadway, Suite 1050
San Diego, CA 92101
(619) 231-4725

P. Craig Cardon
Sheppard Mullin Richter & Hampton
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA 90067
(310) 228-3700

Michelle C. Doolin
4401 Eastgate Mall
San Diego, CA 92121
(858) 550-6000