Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00097746- CU-NP-CTL, Charles R. Hayes, Judge.
HALLER, J.
California law prohibits merchants from requesting and recording "personal identification information" as part of a credit card transaction. (Civ. Code, § 1747.08, subd. (a)(2).) Alexandra Alvarez sued Kmart Holding Corporation (Kmart) alleging Kmart violated this statute by requesting and recording her ZIP code when she purchased goods with her credit card. Alvarez also alleged Kmart violated her right to privacy under the California Constitution. Alvarez sought to represent a class of consumers who used credit cards at California Kmart stores during the prior two years.
All further statutory references are to the Civil Code.
The trial court granted Kmart's motion for judgment on the pleadings. On appeal, Alvarez challenged the court's ruling only on her statutory claim. In our initial decision, we rejected this challenge and affirmed the judgment. However, the California Supreme Court granted Alvarez's petition for review, and then decided Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda), which held a business violates section 1747.08 when it requests and records a customer's ZIP code during a credit card transaction. The high court then remanded this case with directions to reconsider the cause in light of its Pineda decision. Although provided the opportunity, the parties did not file any supplemental briefs after the remand.
Based on Pineda, we conclude the court erred in dismissing Alvarez's statutory cause of action. We thus reverse the judgment on this claim. However, on the remaining constitutional claim, we affirm because Alvarez did not challenge the court's dismissal of this cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are reviewing a judgment on the pleadings, we base our factual summary on the allegations of the complaint. (See Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1540.)
Kmart operates numerous retail stores throughout the United States. During 2008, Alvarez went to a San Diego Kmart store, selected products from the store and approached a Kmart cashier to pay for the items with a credit card. The cashier told Alvarez the amount owed for the products. The employee then instructed Alvarez to swipe her card at the point-of-sale machine, "which also required [Alvarez] to provide" her ZIP code. Alvarez swiped her credit card and entered her ZIP code on Kmart's point-of-sale machine. The Kmart employee then asked to see Alvarez's credit card for verification. Alvarez handed the employee her credit card. After this transaction was completed, Alvarez left the store with her purchased products.
In December 2008, Alvarez filed a class action complaint, seeking to represent a class of persons who engaged in credit card transactions and were asked to provide a ZIP code at a California Kmart store during the prior two years. Alvarez alleged two causes of action: (1) violation of section 1747.08; and (2) invasion of privacy in violation of the California Constitution.
With respect to the statutory violation, Alvarez alleged Kmart has an " 'Information Capture Policy' " under which Kmart cashiers routinely request and record ZIP codes at the "point-of-sale." Kmart then uses the "customers' zip codes, names and credit card numbers to obtain its customer's residential addresses with the help of third-party vendors that use sophisticated software with access to proprietary databases containing hundreds of millions of consumers' contact information."
Kmart moved for judgment on the pleadings, arguing section 1747.08 precludes a request for "personal identification information" and ZIP codes do not constitute "personal identification information." Kmart relied on this court's decision in Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497, which held a ZIP code is not protected information under this statute. Kmart also argued that Alvarez failed to state an invasion of privacy claim because there is no reasonable expectation of privacy with respect to a ZIP code and a ZIP code request does not constitute the type of " 'egregious' " breach necessary to prove a constitutional privacy violation. The court agreed with both arguments.
DISCUSSION
A. Standard of Review
A motion for judgment on the pleadings should be granted if the complaint does not state facts sufficient to state a cause of action against the defendant. The motion " 'performs the same function as a general demurrer, and [thus] attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]' [Citation.]" (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) The court's task is to determine whether the complaint states a cause of action assuming all of the alleged facts are true. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) We review the court's ruling de novo. (Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal.App.4th 679, 685.)
B. Analysis
1. Statutory Claim
Section 1747.08 prohibits merchants from requesting, in a credit card transaction, that the cardholder provide "personal identification information" and recording that information. (§ 1747.08, subd. (a)(2).) " '[P]ersonal identification information[ ]' means 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).)
In Pineda, the California Supreme Court held a cardholder's ZIP code "constitutes 'personal identification information' as that phrase is used in section 1747.08." (Pineda, supra, 51 Cal.4th at p. 527.) The court based this conclusion on the "statutory language, as well as the legislative history and evident purpose" of the statute. (Id. at p. 536.) The court thus held that "requesting and recording a cardholder's ZIP code, without more, violates the statute." (Id. at pp. 527-528.) In so ruling, the Pineda court rejected the defendant's contentions that this statutory interpretation violates a merchant's due process rights and renders the statute unconstitutionally vague. (Id. at p. 536.)
The sole basis for Kmart's motion to dismiss Alvarez's section 1747.08 claim was that a cardholder's ZIP code does not constitute "personal identification information" and thus Kmart could lawfully seek this information in a credit card transaction. The trial court agreed with this contention. However, after Pineda, this contention no longer has merit. We thus reverse the judgment with respect to the first cause of action for violation of section 1747.08.
2. Violation of Privacy Claim
On appeal, Alvarez challenges only the court's ruling on the statutory claim, and provides no legal arguments challenging the court's ruling on her violation of privacy claim under the California Constitution. Alvarez has thus waived her appellate rights with respect to this claim. (See OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 844, fn. 3.)
DISPOSITION
The judgment is affirmed as to the second cause of action (violation of constitutional right to privacy). The judgment is reversed as to the first cause of action (violation of section 1747.08, subdivision (a)(2)). Appellant shall recover her costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.