Filed 9/30/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION THREE




                                                     A154692
 WILLIAMS-SONOMA SONG-
 BEVERLY ACT CASES.                                  (City & County of San Francisco
                                                      JCCP No. 4611)


        The Song-Beverly Credit Card Act of 1971 (Civ. Code, § 1747 et seq. (the Act))
makes it unlawful for merchants to request or require customers to provide “personal
identification information” as a condition to accepting a credit card for payment. In
Harrold v. Levi Strauss & Co. (2015) 236 Cal.App.4th 1259 (Harrold), we held the Act
does not prohibit merchants from requesting such information unless the request is made
under circumstances that would lead a reasonable person to believe the information is
required to complete the transaction.
        The trial court decertified a class of plaintiffs who alleged that retailer Williams-
Sonoma, Inc. (Williams-Sonoma) violated the Act by requesting their zip codes or email
addresses during credit card sales because it found any violation would depend on the
circumstances of the specific transaction. The court correctly applied the legal standard
stated in Harrold and its ruling is supported by substantial evidence. We affirm.
                                      BACKGROUND
        The following evidence is described most favorably to respondent in accord with
the standard for substantial evidence review. (See SFPP v. Burlington N. & Santa Fe Ry.
Co. (2004) 121 Cal.App.4th 452, 461-462; see also Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1022 (Brinker).) Williams-Sonoma is the parent

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corporation to Williams-Sonoma Stores, Inc. and operates the stores Williams-Sonoma,
Pottery Barn, Pottery Barn Kids, and West Elm.
       In 1991 Williams-Sonoma began requesting zip codes during point-of-sale
transactions in California. In 2004 it began requesting email addresses. From 2007 to
February 2011, Williams-Sonoma had general procedures in place for requesting zip
codes and e-mail addresses. Zip codes and emails were collected from customers
regardless of the form of tender used for payment. After the purchases were scanned and
totaled, the point of sale system prompted the sales clerk to ask for the customer’s zip
code. If the customer provided one, it was entered into the system. If the customer
declined, the sales clerk bypassed the prompt by entering a series of nines or other
numbers or selecting a “receipt only” option. The sales clerk then asked the customer for
the form of payment.
       Notwithstanding these general procedures, Williams-Sonoma’s actual practices for
soliciting and recording customers’ personal identification information varied between
individual transactions. Employees had discretion not to solicit a customer’s zip code or
email at all. They would sometimes decline to request it when, for example, the store
was particularly busy, or the customer appeared to be in a hurry or a bad mood. If asked,
employees would explain the information was not required and that it was only being
collected for marketing purposes, and sometimes they would tell their customers as much
without being asked. Williams-Sonoma neither rewards its employees for collecting
personal identification information nor disciplines them if they do not.
       Williams-Sonoma required each of its California stores to post signs at the cash
registers stating that zip codes and email addresses were requested solely for marketing
purposes and were not required. The signs were “no more than a foot, foot and a half”
from customers, “very easy to read,” and treated as “very important reference material”
“not to be obstructed.” In addition, 3” x 5” stickers to the same effect were displayed on
the back (the customer-facing side) of each register.
       In 2013, after legal proceedings not relevant here, plaintiffs Amanda Georgino,
Jessica Pineda and others filed this putative class action. Their complaint alleges

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Williams-Sonoma violated the Act between 2007 and 2011 by requesting and recording
zip codes and/or email addresses from customers who used credit cards for in-store
purchases.
       In 2014 plaintiffs moved to certify a class of all persons from whom Williams-
Sonoma had requested and recorded such information in conjunction with a credit card
purchase. They argued the Act prohibits all requests for personal identifying information
during credit card sales, and therefore that it is violated whether or not the customer
learns from signage or a sales assistant that the information is not required. Thus, under
plaintiffs’ theory, liability under the Act does not depend on the circumstances of any
particular transaction. In opposition to class certification, Williams-Sonoma argued that
the Act is violated only if the request for personal identification information is made
under circumstances that reasonably suggest the information is required for the
transaction.
       Relying on plaintiffs’ theory for purposes of the motion (see Hall v. RiteAid Corp.
(2014) 226 Cal.App.4th 278, 294), the court certified the class. It noted, however, that
decertification could be appropriate if “either through a motion or other means such as a
bifurcated bench trial, the court determines that defendants are correct on what it takes to
prove a violation of the Song-Beverly Act.”
       And so, it went. Following briefing and argument on the question, the court
essentially accepted Williams-Sonoma’s interpretation of the Act. “[F]or the Song-
Beverly Act, liability depends on requesting or requiring PII [personal identification
information] as a condition to accepting credit card payment.” The standard “must focus
on whether a reasonable consumer would perceive a request for PII to be a condition of
paying by credit card,” so the inquiry requires review of the circumstances of the actual
request. In short, the court rejected plaintiffs’ theory of liability and confirmed that “the
circumstances of the request matter.”
       Based on that ruling, Williams-Sonoma moved to decertify the class. It argued its
liability would depend on transaction-specific facts to determine whether any given
customer provided personal identification information under circumstances that would

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lead a reasonable person to believe it was necessary to complete the transaction. The
court granted the motion. It ruled: “The objective conditions of the transactions,
specifically whether a reasonable person (or consumer) would have understood that a zip
code request was needed to complete the transaction, included the statements of
salespeople and visible signage. Thus, the variations in those conditions . . . together
with the absence of a trial plan to manage the individual issues, shows that the class
action is not manageable and that such common issues as do exist do not predominate.”
       The court also concluded plaintiffs had not presented a trial plan to manage the
individual liability issues, as they had confirmed they had “no intention of addressing
circumstances” such as whether customers saw the signs or stickers or were verbally told
that personal identification information was voluntary and not a condition of the sale.
The court rejected plaintiffs’ proposal to verify the individual class members’ right to
recover through a posttrial claims process because, while claim forms may appropriately
be employed to establish individual damages once liability is established, “it doesn’t
follow that liability can be established by a claim form, which after all is hearsay and not
subject to cross examination.” Moreover, plaintiffs’ proposed form failed to address “the
conditions of the transaction” necessary to establish liability for any specific claim.
       Plaintiffs filed this timely appeal from the decertification order.
                                          DISCUSSION
                 I.     The Court Applied the Correct Standard of Liability
       Plaintiffs contend the court erred when it decertified the class on the basis of what
they call a “ ‘voluntary’ ” defense to liability under the Act. Relying principally on
language in Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda) and
Florez v. Linens ’N Things, Inc. (2003) 108 Cal.App.4th 447 (Florez), plaintiffs assert the
Act prohibits any request for personal identification information from customers during a
credit card sale, regardless of whether a reasonable customer would believe the
information was required to complete the transaction. In plaintiffs’ view, any other
interpretation would allow retailers to defeat the Act by claiming their customers
voluntarily furnished personal identification information.

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       Williams-Sonoma responds that plaintiffs misstate the trial court’s ruling. The
court did not, as plaintiffs suggest, invent a standard of liability dependent upon whether
the customer provides the information voluntarily. Rather, it found that although a
retailer “may solicit a customer’s zip code during a credit card transaction if that
information is provided voluntarily,” it “may not request or require the provision of a zip
code as a condition of accepting a credit card payment.” (Italics added.) Agreeing with
both parties’ position that liability requires the application of an objective, “reasonable
consumer” standard, the court reasoned that it does not matter whether a customer
subjectively believed the information was required, but, rather, what a reasonable
customer would believe under the circumstances of the particular transaction. Thus, the
key issue on the motion to decertify the class was whether plaintiffs could prove on a
class-wide basis that requests for zip codes and email addresses were made “in a manner
such that a reasonable consumer might perceive the request to be a condition of paying
by credit card.” We agree. By any fair reading of the court’s rulings, the court did not
decertify the class on the basis of a “voluntariness” defense but did so because liability
under the Act depends on the objective circumstances of any given transaction.
       We also agree with Williams-Sonoma that the court correctly applied the
controlling law. On this point, the views we expressed in Harrold, supra, 236
Cal.App.4th 1259 are dispositive. There, affirming denial of a motion for class
certification, we reviewed the Act’s language and legislative history to conclude that
“while the statute is intended to protect consumer privacy and to prohibit merchants from
obtaining personal identification information under the mistaken impression the
information is required to process a credit card transaction, the Act is not intended to
forbid merchants from obtaining such information voluntarily, if the customer
understands that the information need not be disclosed in order to use a credit
card.” (Id. at p. 1266.) “Neither the legislative history nor the cases that have interpreted
the statute indicate that the Act prohibits merchants from requesting personal
identification information if the request is not made under circumstances suggesting that
a credit card will not be accepted as payment without such information.” (Ibid.) Thus,

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the Act is violated by a request for personal identification information only if the
request “is made under circumstances in which the customer could reasonably understand
that [the information] was required to process the credit card
transaction.” (Id. at p. 1268.) Applying the act as so construed, we concluded the Act
does not prohibit collection of personal identification information after a credit card
transaction is complete. (Id. at pp. 1262, 1268.)
       Plaintiffs argue our construction of the Act in Harrold is antithetical to Civil Code
section 1747.04, which specifies that “[a]ny waiver of the provisions of this title is
contrary to public policy, and is void and unenforceable.” But this puts the cart before
the horse. As noted in Gormley v. Nike Inc. (N.D.Cal. Jan. 28, 2013, No. C 11–893)
2013 WL 322538, p. 7, fn.7 (Gormley), whether the requirements of a statute can be
waived is a distinct question from what conduct violates the statute. Applying that
observation here, the statute is violated when the request for information is made under
circumstances in which the customer could reasonably believe it was required. If the
circumstances are not as such, there is no violation and, therefore, nothing to waive.
       Plaintiffs also contend that Florez, supra, 108 Cal.App.4th at p. 453, compels their
view that the Act prohibits any request for personal identification information made
during a credit card sale. It does not. The defendant in Florez argued the Act is
categorically inapplicable to requests for personal identification information made before
the customer indicates he or she will pay by credit card. (Id. at pp. 450, 453, 454.) The
Florez court rejected the defendant’s interpretation of the Act. In reaching that
conclusion, it explained, “[w]hat . . . matter[s] is whether a consumer would perceive the
store’s ‘request’ for information as a ‘condition’ of the use of a credit card,” and that the
Act therefore “dovetails with policy by prohibiting the solicitation of information
obtained under the false pretense that the transaction cannot or will not be completed
without it.” (Id. at pp. 451, 452.) The Florez court did not address the assertion now
before us, that a request for personal identification information during a credit card sale
violates the Act without regard to whether the customer would reasonably perceive the
information was required. That is the question we considered, and rejected, in Harrold.

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        Plaintiffs also rely on the Supreme Court’s statement in Pineda, supra, 51 Cal.4th
524, that “ ‘[t]he 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.’ [Citation.] ‘[T]he 1991 amendment prevents a retailer
from making an end-run around the law by claiming the customer furnished personal
identification data “voluntarily.” ’ [Citation.] That the Legislature so expanded the
scope of former section 1747.8 is further evidence it intended a broad consumer
protection statute.” (Id. at p. 535, quoting Florez, supra, 108 Cal.App.4th at p. 453.) But
Pineda decided only whether a zip code is covered personal identification information
under the Act. (Id. at pp. 528-536.) The Court did not address whether the statute
prohibits any and all requests for zip codes or other personal identification information
made in conjunction with a credit card payment, or whether it matters that under the
circumstances a reasonable consumer would (or would not) believe the information is
required for the sale. A decision, of course, is not authority for a proposition that was not
considered in the court’s opinion. (Moore v. Superior Court (2004) 117 Cal.App.4th 401,
409.)
        Numerous federal cases are in accord with our conclusion in Harrold and here.
(See, 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, pp. 4-
5; Yeoman v. Ikea U.S. West, Inc. (S.D.Cal. Feb. 27, 2013, No. 11CV701) 2013 WL
12069024, p. 13; Gormley, supra, 2013 WL 322538, p. 7; Gass v. Best Buy Co., Inc.
(C.D. Cal. 2012) 279 F.R.D. 561, 570; Rothman v. General Nutrition Corp. (C.D.Cal.
Nov. 17, 2011, No. CV 11–03617) 2011 WL 6940490, p. 6; see also Absher v. AutoZone,
Inc. (2008) 164 Cal.App.4th 332, 343-344].) We also observe that the Supreme Court
denied review of Harrold (Harrold, supra, 236 Cal.App.4th 1259, review denied Aug.
26, 2015, S227266.) and on the same day, in light of Harrold, denied a request by the
Ninth Circuit to decide a question of state law. (Davis v. Devanlay Retail Group, Inc.

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785 F.3d 359, request denied Aug. 26, 2015.) This does not mean, as Williams-Sonoma
would have it, that Harrold is necessarily the final word on the issue, or that the question
of statutory interpretation we addressed there is not close. Indeed, the Supreme Court or
the Legislature could see fit to revisit it. But neither the facts of this case nor plaintiffs’
legal arguments give us reason to question our analysis and conclusion there.
       Consistent with the foregoing authorities, the trial court correctly ruled the Act is
violated only if the retailer requests personal identification information under
circumstances in which a reasonable customer would understand the information was
required to complete the credit card transaction.
               II.     Substantial Evidence Supports the Decertification Order
       Plaintiffs argue that even if the court applied the correct legal standard, there was
“no evidence, much less substantial evidence” to support its determination that
predominant and unmanageable factual issues make a class proceeding untenable. Here,
too, we disagree.
                                           A. Legal Standards
       “Code of Civil Procedure section 382 authorizes class actions ‘when the question
is one of a common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court. . . .’ The party
seeking certification has the burden to establish the existence of both an ascertainable
class and a well-defined community of interest among class members. [Citations.] The
‘community of interest’ requirement embodies three factors: (1) predominant common
questions of law or fact; (2) class representatives with claims or defenses typical of the
class; and (3) class representatives who can adequately represent the class.” (Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) “A trial court
ruling on a certification motion determines ‘whether . . . the issues which may be jointly
tried, when compared with those requiring separate adjudication, are so numerous or
substantial that the maintenance of a class action would be advantageous to the judicial
process and to the litigants.’ ” (Ibid.)


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       “The ‘proper legal criterion’ for deciding whether to certify or decertify a class is
simply whether the class meets the requirements for class certification. [Citation.] As a
general matter, this pertains to the fundamental question whether ‘the class action
proceeding is superior to alternate means for a fair and efficient adjudication of the
litigation.” ’ [Citation.] More particularly, whether common questions of law and fact
predominate constitutes a proper criterion for certifying or decertifying a class.” (Walsh
v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1451.) “ ‘If each member
of the class will be required to litigate numerous and substantial issues affecting his [or
her] individual right to recover damages after the common questions have been
determined, the requirement of community of interest is not satisfied.’ ” (Grogan-Beall
v. Ferdinand Roten Galleries, Inc. (1982) 133 Cal.App.3d 969, 976.)
       “On review of a class certification order, an appellate court’s inquiry is narrowly
circumscribed. ‘The decision to certify a class rests squarely within the discretion of the
trial court, and we afford that decision great deference on appeal, reversing only for a
manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the
efficiencies and practicalities of permitting group action, they are afforded great
discretion in granting or denying certification.” [Citation.] A certification order
generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal assumptions.’ ” (Brinker,
supra, 53 Cal.4th at p. 1022.)
       Predominance is a factual question, so we review the trial court’s finding on
whether common issues predominate for substantial evidence. (Brinker, supra, at p.
1022.) We presume in favor of its order the existence of every fact the trial court could
reasonably deduce from the record (Sav-On, supra, 34 Cal.4th at pp. 328-329) and
“[w]here a certification order turns on inferences to be drawn from the facts, ‘ “the
reviewing court has no authority to substitute its decision for that of the trial court.” ’ ”
(Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282,
1287, superseded by statute on another point in Steroid Hormone Product Cases (2010)
181 Cal.App.4th 145, 154.)

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                                            B. Analysis
       Here, the trial court found class certification was inappropriate because whether a
reasonable person would believe their zip code or email address was required for a credit
card purchase would depend on conditions of individual transactions such as the presence
and visibility of posted signs or verbal advisements by sales clerks. “Thus the variation
in those conditions . . . together with the absence of a trial plan to manage the individual
issues, shows that the class action is not manageable and that such common issues as do
exist do not predominate.”
       Substantial evidence supports that finding. Williams-Sonoma presented testimony
and photographs establishing that it required its California stores to prominently post
signs and stickers in plain view at the cash register area advising customers they were not
required to provide their zip codes or email addresses. It also presented evidence that the
appearance and placement of those notices are consistent with statutory and regulatory
requirements for various consumer notices. This includes Civil Code section 1723,
subdivision (a), enacted during the same legislative session as the Act, which requires
return policies to be “conspicuously display[ed] . . . on signs posted at each cash register
and sales counter,” and other statutes and regulations requiring notice of, inter alia,
health and safety hazards. Employees were trained to point customers to these notices,
and a number confirmed that they did so. Plaintiffs assert there was no direct evidence
that customers actually saw, read, or understood those notices, but the trial court correctly
concluded Williams-Sonoma’s evidence supports an inference that a reasonable customer
would have done so.
       In addition, Williams-Sonoma presented evidence that its employees had
discretion about whether to request a customer’s zip code; that they did not always do so;
and that they faced no discipline if they did not. Employees were trained to tell inquiring
customers that the information was for marketing purposes and was not required, and
they sometimes spontaneously explained this to customers.
       In short, Williams-Sonoma presented substantial evidence that the conditions
relevant to a reasonable customer’s understanding of whether personal identification

                                             10
information was required for a credit card sale varied between individual transactions. In
this factual context, plaintiffs’ reliance on Nicodemus v. Saint Francis Memorial Hospital
(2016) 3 Cal.App.5th 1200 (Nicodemus) does not help them. The issue in Nicodemus
was whether the defendant hospital’s uniform responses to attorney requests for medical
records violated statutory requirements governing the production of medical records
demanded by patients through their attorneys prior to litigation. (See Evid. Code,
§ 1158.) The court held the fact that each class member might ultimately be required to
show that his or her records request was submitted before or in contemplation of
litigation did not overwhelm the common question regarding the hospital’s undisputedly
uniform practices for responding to such requests. (Nicodemus, supra, 3 Cal.App.5th at
p. 1219.) The facts of this case are very different. The objective circumstances of each
transaction will have to be proven to determine whether the customer would have
reasonably perceived he or she had to provide a zip code or email address in order to pay
by credit card. In this situation, the trial court’s determination that the predominance of
those individual issues rendered a class proceeding untenable was supported by
substantial evidence and within its discretion. 1
                                          DISPOSITION
       The order is affirmed.




       1
         Plaintiffs’ November 27, 2018 request for judicial notice of the statement of
decision in two trial court matters and certain legislative history material is granted. In
light of our determinations that the court correctly applied Harrold and that substantial
evidence supports its order, we do not reach plaintiffs’ further claim that the court erred
in rejecting their trial plan. As plaintiffs acknowledge, the court’s criticism of the plan
was premised on its finding that individual issues predominate regarding the signs and
dialogue between customers and store employees.

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                                                     _________________________
                                                     Siggins, P. J.


      WE CONCUR:


      _________________________
      Petrou, J.


      _________________________
      Wick, J. *




      *
        Judge of the Superior Court of Sonoma County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Trial Court:                                 San Francisco City & County Superior
                                             Court



Trial Judge:                                 Honorable Curtis E.A. Karnow

Counsel:

Stonebarger Law, Gene J. Stonebarger, Richard D. Lambert; Patterson Law Group, James
R. Patterson, Allison H. Goddard for Plaintiffs and Appellants.

Sheppar, Mullin, Richter & Hampton, P. Craig Cardon, Benjamin O. Aigboboh,
Elizabeth S. Barcohana for Defendants and Respondents.




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