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 [133 Cal.Rptr.2d 465] (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).)
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 information and the cashier recorded it. Plaintiff further alleges that defendant subsequently used her name and ZIP code to locate her home address.
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 [89 Cal.Rptr.3d 594, 201 P.3d 472].)
In June 2008, plaintiff Jessica Pineda filed a complaint against defendant Williams-Sonoma Stores, Inc.
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. 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
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 [86 Cal.Rptr.3d 721] (Party City), which similarly concluded a ZIP code, without more, does not constitute personal identification information.
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.
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).) 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 [101 Cal.Rptr.3d 758, 219 P.3d 736] (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).
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
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 & Rosch, 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 businesses.
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 [78 Cal.Rptr.3d 817] (Absher).)
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.
In 1990, the Legislature enacted former section 1747.8
The Senate Committee on Judiciary's analysis highlighted the motivating concerns: "
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 and 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. 4191.) In 1991, the provision was broadened, forbidding businesses from "[r]equest[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. 5042, 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
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 code.
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 [208 Cal.Rptr. 162, 690 P.2d 635], disapproved on another ground in People v. Hedgecock (1990) 51 Cal.3d 395, 409-410 [272 Cal.Rptr. 803, 795 P.2d 1260].) 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 [32 Cal.Rptr.3d 5, 116 P.3d 479].)
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this decision.
Cantil-Sakauye, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
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 [73 P. 196].)