Court of Appeal (Cal.) Says Since Song-Beverly Credit Card Act Requires Reliance, Putative Class Was Not Ascertainable

Several federal authorities are in accord. (E.g., Gossoo v. Microsoft Corp. (C.D.Cal. Oct. 9, 2013, No. CV 13-2043) 2013 WL 5651271, p. 1 [“the test … ‘is whether a consumer would perceive the store’s “request” for information as a “condition” of the use of a credit card’ ”]; Dean v. Dick’s Sporting Goods, Inc. (C.D.Cal. July 26, 2013, No. CV 12-7313) 2013 WL 3878946, p. 5; Yeoman v. Ikea U.S. West, Inc. (S.D.Cal. Feb. 27, 2013, No. 11CV701) 2013 WL 12069024, p. 13 [“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. (N.D.Cal. Jan. 28, 2013, No. C 11-893) 2013 WL 322538, p. 7 [“the [c]ourt 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”]; Juhline v. Ben Bridge Jeweler, Inc. (S.D.Cal. Sept. 11, 2012, No. 11CV2906) 2012 WL 3986316, p. 5; Gass v. Best Buy Co., Inc., supra, 279 F.R.D. at p. 570 [“If the customer reasonably perceives the request for (personal identification information) as a condition of completing the credit card transaction, the Act has been violated”]; Rothman v. General Nutrition Corp. (C.D.Cal. Nov. 17, 2011, No. CV 11-03617) 2011 WL 6940490, p. 6 [“if the personal information is requested as opposed to required, whether there has been a violation of the Act would depend upon whether the individual consumer reasonably believed that providing his personal information was a condition of consummating the credit card transaction”].)  Consistent with the foregoing authorities, we conclude “as a condition to accepting the credit card as payment” modifies both “require” and “[r]equest” (§ 1747.08, subd. (a)(2)). As such, the statute prohibits merchants from requesting personal identification information if the customer would reasonably perceive the request as a condition to accepting a credit card payment.

The trial court concluded that Guitar Center’s liability under section 1747.08, subdivision (a)(2), depended on whether the customer reasonably understood that he or she need not provide an email address in order to pay by credit card. The court stated that this depended on the phrasing of the sales clerk’s statements made to the customer and on whether the credit card transaction was concluded before or after the request for an email address. The court stated there was no consistency in the phrasing of the statements made to customers, implying that individual questions predominated regarding liability.  The trial court properly interpreted the statute, as discussed above. Contrary to plaintiffs’ argument, substantial evidence supports the court’s finding the sales clerks did not adhere to a script and used inconsistent language when requesting customers’ personal identification information. Guitar Center presented declarations by its sales clerks that scripts were not used when requesting personal identification information. Guitar Center encouraged its sales clerks to engage customers in a natural, conversational manner, and the dialogue varied from customer to customer. Given the lack of uniformity and the need for individualized proof regarding the language of the request in order to determine whether the customer would reasonably perceive the request as a condition to accepting a credit card payment, substantial evidence supports the finding that common questions do not predominate. Accordingly, the trial court did not abuse its discretion in denying class certification.