Apple

Filed 2/4/

IN THE SUPREME COURT OF CALIFORNIA

APPLE INC., )

) Petitioner, ) ) S199384 v. ) ) Ct.App. 2/8 B238097

THE SUPERIOR COURT OF LOS )

ANGELES COUNTY, ) Los Angeles County ) Super. Ct. No. BC463305 Respondent; ) )

DAVID KRESCENT, )

) Real Party in Interest. ) ___________________________________ )

The Song-Beverly Credit Card Act of 1971 (Credit Card Act) governs the issuance and use of credit cards. (Civ. Code, § 1747 et seq.; all further statutory references are to the Civil Code unless otherwise indicated.) One of its provisions, section 1747.08, prohibits retailers from ―[r]equest[ing], or requir[ing] as a condition to accepting the credit card as payment . . . , the cardholder to write any personal identification information upon the credit card transaction form or otherwise.‖ (§ 1747.08, subd. (a) (hereafter section 1747.08(a)).) It also prohibits retailers from requesting or requiring the cardholder ―to provide personal identification…

The Song-Beverly Credit Card Act of 1971 (Credit Card Act) governs the issuance and use of credit cards. (Civ. Code, § 1747 et seq.; all further statutory references are to the Civil Code unless otherwise indicated.) One of its provisions, section 1747.08, prohibits retailers from “[r]equest[ing], or requiring] as a condition to accepting the credit card as payment . . . , the cardholder to write any personal identification information upon the credit card transaction form or otherwise.” (§ 1747.08, subd. (a) (hereafter section *133 1747.08(a)).) It also prohibits retailers from requesting or requiring the cardholder “to provide personal identification information, which the [retailer] . . . writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise,” and from “[u]tiliz[ing] ... a credit card form which contains preprinted spaces specifically designed for filling in any personal identification information of the cardholder.” (Ibid.) In Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 [ 120 Cal.Rptr.3d 531 , 246 P.3d 612 ] (Pineda), we considered whether section 1747.08 is violated when a retailer requests and records…

To protect consumer privacy, California statutory law prohibits retail sellers from recording the personal identification information, such as home addresses and telephone numbers, of their credit-card-using customers. (Civ. Code, 1 § 1747.08, subd. (a).) The statute does not exempt online sales of downloadable products from this prohibition, and on its face the statute applies to sales conducted over the Internet just as it does to sales conducted face-to-face or by mail or telephone. Yet the majority holds that online sales of downloadable products are not covered by the statute, thus leaving Internet retailers free to demand personal identification information from their credit-card-using customers and to resell that information to others. The majority’s decision is a major win for these sellers, but a major loss for consumers, who in their online activities already face an ever-increasing encroachment upon their privacy.

Unlike the majority, I conclude that the statute means just what it says and contains no exemption, express or implied, for online sales of downloadable products. The majority’s expressed concern that this plain-meaning construction of the statute leaves…

I respectfully dissent.

Section 1747.08 of the Civil Code 1 was enacted to prevent any retailer such as defendant Apple Inc. from collecting and exploiting the personal identification information of consumers who use credit cards to make their purchases. Plaintiff’s complaint sufficiently states a cause of action under this statute: it alleges that defendant required and recorded plaintiff’s address and telephone number as a condition to his online purchases of electronically downloadable products, and that defendant’s actions were not otherwise permitted by the statute. In holding to the contrary, the majority relies on speculation and debatable factual assumptions to carve out an expansive exception to section 1747.08 that leaves online retailers free to collect and use the personal identification information of credit card users as they wish.

I.

Because this case comes to us on a demurrer, “we review the allegations of the operative complaint for facts sufficient to state a claim for relief. In doing so, we treat the demurrer as admitting all material facts properly pleaded. ‘ “Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in…