Carson v. Michael Stores

Filed 7/22/10 Carson v. Michaels Stores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LINDA CARSON,
Plaintiff and Appellant,
v.
MICHAELS STORES, INC.,
Defendant and Respondent.
D055477
(Super. Ct. No. 37-2008-00089773-
CU-BT-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
California's Song-Beverly Credit Card Act of 1971 (Civ. Code,1 § 1747 et seq.,
hereafter the Act) prohibits merchants that accept credit cards in transacting business from
requesting and recording "personal identification information" concerning the cardholder.
Linda Carson filed a complaint alleging Michaels Stores, Inc. (Michaels) violated the Act
and her right to privacy when, as part of her purchase of items from Michaels using a credit
card, it requested and recorded her ZIP Code for the purpose of using it and her name to
1 All further statutory references are to the Civil Code unless otherwise specified.

-- 1 of 12 --

2
obtain her address. The court sustained Michaels's demurrer to her complaint, finding as a
matter of law, based upon this court's decision in Party City Corp. v. Superior Court (2008)
169 Cal.App.4th 497 (Party City), ZIP Codes are not "personal identification information"
under the Act. The court also sustained Michaels's demurrer to Carson's invasion of privacy
claim, finding that requesting her ZIP Code to obtain her address was not an invasion of
privacy as such information is not private.
On appeal, Carson asserts the court erred in sustaining Michaels's demurrer because
(1) Party City is inapplicable as in that case there was no evidence the merchant was using
ZIP Codes to obtain home addresses; (2) ZIP Codes fall within the definition of "personal
identification information"; and (3) she had a legally protected privacy interest in her home
address. We affirm.2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Because we are reviewing an order sustaining a demurrer, we take the factual
background from the properly pleaded material allegations of the complaint. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.)
2 We note that the issue of whether a retailer violates the Act by recording a
customer's ZIP Code for the purpose of later using it and the customer's name to obtain
the customer's address is currently on review before the California Supreme Court in an
opinion by a different panel of this court issued in 2009. (Pineda v. Williams-Sonoma
Stores, Inc. (2009) 178 Cal.App.4th 714, review granted Feb. 10, 2010, S178241.)

-- 2 of 12 --

3
Michaels is a retailer of arts and craft products. In December 2007 Carson went to
an unspecified Michaels store. She selected products from the store that she intended to
purchase and went to the cashier to pay for the items with a credit card.
After an employee of Michaels informed her of the amount due, Carson handed
the employee her credit card. The employee took the card and proceeded to "swipe" the
card or "enter and/or record" the credit card number into the electronic cash register.
After the cashier accepted and processed her credit card for payment, the cashier asked
Carson for her ZIP Code. Carson provided her ZIP Code to the cashier who "typed and
recorded [Carson's] [ZIP C]ode into" the electronic cash register. Carson then left the
store with her purchased products.
Carson alleges that Michaels thereafter used her ZIP Code and "customized
computer software to perform reverse searches from 'data warehousing' or 'data mining'
databases [that] contain millions of names, e-mail addresses, residential telephone
numbers and residential addresses" to obtain her address and other unspecified "personal
identification information."
Carson alleged three causes of action: (1) for violation of the Act; (2) for violation
of Business and Professions Code section 17200; and (3) for invasion of privacy.
B. Michaels's Demurrer
Michaels demurred, asserting that a ZIP Code is not "personal identification
information" under the Act. Michaels also asserted that it did not violate the Act as it did
not condition acceptance of Carson's credit card upon her disclosing her ZIP Code.
Michaels asserted Carson lacked standing to maintain her claim for violation of Business

-- 3 of 12 --

4
and Professions Code section 17200 because she did not allege she lost any "money or
property." Michaels demurred to the invasion of privacy claim, arguing Carson did not
have a reasonable expectation of privacy in her ZIP Code or address, and Michaels's
alleged conduct did not constitute a serious invasion of privacy.
Carson opposed the demurrer, asserting the Act prohibited merchants from
obtaining any personal identification information that was not set forth on the card,
including ZIP Codes. She also argued that the Act did not require a showing that
Michaels requested her ZIP Code as a condition of accepting her credit card as payment.
Carson conceded that her cause of action for violation of Business and Professions Code
section 17200 lacked merit. Carson opposed the demurrer to her claim for invasion of
privacy, alleging she did have a legally protected privacy interest in her home address
and Michaels's actions constituted a serious invasion of privacy.
C. Court's Ruling
In March 2009 the court sustained Michaels's demurrer without leave to amend.
The court sustained Michaels's demurrer to Carson's claim for violation of the Act based
upon this court's decision in Party City, supra, 169 Cal.App.4th 497, which held ZIP
Codes are not personal identification information under the Act. The court granted
Michaels's demurrer to the Business and Professions Code section 17200 claim based
upon Carson's concession the claim lacked merit. The court sustained the demurrer to the
invasion of privacy claim, finding "a [ZIP C]ode, or the information used by [Michaels]
is not private, and therefore plaintiff has no privacy interests therein."

-- 4 of 12 --

5
DISCUSSION
I. CLAIM FOR VIOLATION OF ACT
A. Standard of Review
We review an order sustaining a demurrer without leave to amend de novo (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318), assuming the truth of all properly pleaded facts as well
as facts inferred from the pleadings, and give the complaint a reasonable interpretation by
reading it as a whole and its parts in context. (Palacin v. Allstate Ins. Co. (2004) 119
Cal.App.4th 855, 861.) However, we give no credit to allegations that merely set forth
contentions or legal conclusions. (Financial Corp. of America v. Wilburn (1987) 189
Cal.App.3d 764, 768-769.) A complaint will be construed "liberally . . . with a view to
substantial justice between the parties." (Code Civ. Proc., § 452.) If the complaint states a
cause of action on any possible legal theory, we must reverse the trial court's order sustaining
the demurrer. (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86.)
B. Overview of the Act3
The Act prohibits merchants that accept credit cards in transacting business from
making requests that the cardholder provide "personal identification information" and from
recording that information. (§ 1747.08, subd. (a)(2).) " '[P]ersonal identification
information[]' means information concerning the cardholder, other than information set forth
3 Michaels has filed an unopposed request for judicial notice, requesting that we
take judicial notice of portions of the legislative history of the Act. We grant Michaels's
request for judicial notice.

-- 5 of 12 --

6
on the credit card, and including, but not limited to, the cardholder's address and telephone
number." (§ 1747.08, subd. (b).)
The Act also imposes mandatory statutory penalties on any person who violates
the Act. (§ 1747.08, subd. (e) ["Any person who violates this section shall be subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the first violation and one
thousand dollars ($1,000) for each subsequent violation"]; see also The TJX Companies,
Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 85-86.) Because the Act imposes
mandatory and potentially significant civil penalties, it must be strictly construed against
a finding of liability. (Party City, supra, 169 Cal.App.4th at p. 511.)
C. Analysis
In Party City, this court concluded, as a matter of law, that a ZIP Code is not personal
identification information within the meaning of section 1747.08, subdivision (b) because a
ZIP Code is not facially individualized information. (Party City, supra, 169 Cal.App.4th at
pp. 506, 518.) In doing so, we stated that "[i]f the Legislature intended 'personal
identification information' to include all components of an address, not just specific ones, it
would not have specified in subdivision (b) of section 1747.08 that the protected information
(address and telephone number) is of the kind that pertains to individuals, not groups of ZIP
Code inhabitants. The canon of ejusdem generis supports a construction of the phrase in
section 1747.08, subdivision (b), 'personal identification information,' or 'information
concerning the cardholder, other than information set forth on the credit card,' as meaning
that the enumerated items (address and telephone number) were intended to be specific in
nature regarding an individual, rather than a group identifier such as a ZIP Code. If the

-- 6 of 12 --

7
Legislature had intended 'address' to be used in its unrestricted sense, it would not also have
mentioned a specific item such as a telephone number in this context." (Party City, supra,
169 Cal.App.4th at p. 520.)
Carson asserts that Party City is distinguishable because there was no evidence
presented in that case that the defendant used the collected ZIP Codes to obtain its customers'
addresses. This contention is unavailing.
The Act only prohibits certain information from being collected, not what a
merchant thereafter uses that information for. If the information is not covered by the
Act, as we have so held, it matters not that Carson alleges that Michaels later used her
ZIP Code to obtain her address. There is nothing in the Act that states that the intent of
the merchant in collecting the information determines a merchant's liability. Carson asks
that we rewrite the Act to add to it language that would make it a violation to collect
information that is not personal identification information if that information is later used
to discover information that is. When construing or interpreting a statute, we may not
"imply additional language in order to accomplish some supposed legislative purpose."
(Gray v. Superior Court (2002) 95 Cal.App.4th 322, 327.) This is especially true as the
Act imposes mandatory and potentially significant civil penalties and must be strictly
construed against a finding of liability. (Party City, supra, 169 Cal.App.4th at p. 511.)
Carson's assertion that we hold it a violation of the Act for a merchant to use ZIP Codes
to obtain addresses is best addressed to the Legislature.
Carson also argues Party City is distinguishable because it was decided after a
factual record was developed at summary judgment. Carson claims to allege a

-- 7 of 12 --

8
"substantially different factual record." However, as we have already explained, ante,
Party City held a ZIP Code was not personal identification information as a matter of
law. Thus, it matters not that the court decided this case at the demurrer stage.
The issue in Party City was whether the trial court in that case properly interpreted
the statutory definition of personal identification information to include ZIP Codes. (See,
e.g., Party City, supra, 169 Cal.App.4th at p. 506 ["The trial court was presented with
only legal questions on undisputed facts on the statutory interpretation of the terminology
of the statute, and therefore this summary judgment ruling may be appropriately
addressed likewise, on a de novo basis, in this writ proceeding."]; id. at p. 502 [noting
that the trial court's error was in its interpretation of "the definitional portions of section
1747.08"].)
Thus, the factual record was irrelevant to the threshold question of the definitional
scope of the Act. (Party City, supra, 169 Cal.App.4th at p. 502 ["Petitioner is entitled to
summary judgment on the complaint on the threshold definitional issue presented in the
pleadings."]; id. at p. 503 [noting the defendant moved for summary judgment on the
grounds that "as a matter of law" a ZIP Code is not personal identification information];
id. at p. 518 [stating review was limited "to the issue of whether the Act's statutory
definition, as a matter of law, supports the allegations made by plaintiff"'].) The court
specifically declined to adjudicate matters dependent on factual nuances of the case
because, like here, the "threshold issue [was] whether plaintiff's complaint falls within the
statutory scope of the Act." (Id. at p. 503, fn. 3.)

-- 8 of 12 --

9
The trial court properly followed Party City in sustaining without leave to amend
Michaels's demurrer to Carson's claim for violation of the Act.4
II. INVASION OF PRIVACY CLAIM
Carson asserts that her invasion of privacy claim has merit separate from her claim
under the Act because Michaels used her name, credit card number and ZIP Code to obtain
her home address without her knowledge or consent. This contention is unavailing.
To establish a claim for invasion of privacy under the California Constitution, a
plaintiff must show: (1) a legally protected privacy interest; (2) a reasonable expectation of
privacy; and (3) a serious invasion of that right. (Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 39-40 (Hill).) The three "threshold elements" set out in Hill allow courts
to weed out claims that involve insignificant or de minimis intrusions not requiring
explanation or justification. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 893.)
Whether a legally protected privacy interest exists is a question of law. (Hill, supra, at p.
40.) The second and third elements of the privacy claim involve mixed questions of law and
fact. (Ibid.) However, "[i]f the undisputed material facts show no reasonable expectation of
privacy or an insubstantial impact on privacy interests, the question of invasion may be
adjudicated as a matter of law." (Ibid.)
Carson contends that individuals have a legally protected privacy interest and a
reasonable expectation of privacy in their home addresses, including the right to control
4 Accordingly, we need not address Michaels's alternative theory that Carson's claim
under the Act was barred because Michaels did not condition acceptance of Carson's
credit card for payment on her providing Michaels with her ZIP Code.

-- 9 of 12 --

10
dissemination of that information. We conclude under the facts alleged in her complaint
that Carson has no reasonable expectation of privacy in her address information.
Carson has not alleged in her complaint, or in her arguments in opposition to
Michaels's demurrer, that she has taken any steps to keep her address information private
or that such information is not a matter of public record. Carson has no reasonable
expectation of privacy in her address as she alleges in the complaint the information was
obtained from public databases available on the internet. (See, e.g., Melvin v. Reid
(1931) 112 Cal.App. 285, 290 ["[t]here can be no privacy in that which is already
public"], cited approvingly in Hill, supra, 7 Cal.4th at p. 26; Sipple v. Chronicle
Publishing Co. (1984) 154 Cal.App.3d 1040, 1047 ["there can be no privacy with respect
to a matter which is already public [citation] or which has previously become part of the
'public domain' "].) According to Carson there are "numerous" public databases with
"hundreds of millions" of consumer profiles. As Carson alleges in her opposition to
Michael's demurrer that obtaining address information from these databases is very
simple: "A simple search . . . using only . . . names and [ZIP C]odes, reveals the current
home address . . . ." Indeed, Carson acknowledges in her opening brief that "anyone with
access to the internet can look up a person's home address and telephone number using
only the person's name and [ZIP C]ode on 411.com . . . ."
Thus, the fact Carson's address is easily obtained from a number of sources
available to the public on the Internet undermines any reasonable expectation of privacy
she has in such information. (Four Navy Seals v. Associated Press (S.D. Cal. 2005) 413
F.Supp.2d 1136, 1142-1143 [claim for invasion of privacy under the California

-- 10 of 12 --

11
constitution dismissed on the pleadings because there was no reasonable expectation of
privacy in photographs publicly accessible on the Internet]; cf. Alarcon v. Murphy (1988)
201 Cal.App.3d 1, 7 [no reasonable expectation of privacy in disclosure of facts from a
public record].)
Indeed, California courts have recognized that an address "is not particularly
sensitive, as it is merely contact information." (See, e.g., Puerto v. Superior Court (2008)
158 Cal.App.4th 1242, 1253; cf. People v. Herrera (1981) 124 Cal.App.3d 386, 389
["Information contained on a driver's license does not give rise to a person's reasonable
expectation of privacy."].) It is not the type of information deemed private such as
"medical or financial details, political affiliations, sexual relationships, or personnel
information." (Puerto, supra, 158 Cal.App.4th at pp. 1253-1254.)
Further, even assuming Carson adequately alleged a reasonable expectation in her
address information, her claim fails because she cannot allege a serious invasion of that
privacy right.
To be actionable, invasions of privacy "must be sufficiently serious in their nature,
scope, and actual or potential impact to constitute an egregious breach of the social norms
underlying the privacy right." (Hill, supra, 7 Cal.4th at p. 37.) Obtaining an address that is
otherwise publicly available does not amount to "an egregious breach of the social norms
underlying the privacy right." (Hill, supra, 7 Cal.4th at p. 37; see, e.g., Jeffrey H. v. Imai,
Tadlock & Keeney (2000) 85 Cal.App.4th 345, 355 [law firm's disclosure of the irrelevant
HIV status of a litigant in an automobile accident case sufficient to allege egregious conduct
invading privacy], disapproved of on other grounds in Jacob B. v. County of Shasta (2007)

-- 11 of 12 --

12
40 Cal.4th 948, 962; Egan v. Schmock (N.D.Cal. 2000) 93 F.Supp.2d 1090, 1095 [stalking
and filming of neighbors in their home sufficient to allege invasion of privacy].)
"[T]he extent and gravity of the invasion is an indispensable consideration in
assessing an alleged invasion of privacy." (Hill, supra, 7 Cal.4th at p. 37.) Although Carson
seeks damages for the alleged invasion of her privacy, the complaint contains no allegations
showing the extent and gravity of the alleged invasion of privacy. Under the facts alleged,
the obtaining of Carson's address did not amount to a "serious" invasion of her alleged
privacy interest.
DISPOSITION
The judgment is affirmed. Michaels shall recover its costs on appeal.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.

-- 12 of 12 --