Friday, October 9, 2009
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C.A.: Merchants Can Ask Customers for ZIP Codes
By KENNETH OFGANG, Staff Writer
A customer’s ZIP code is not “personal identification information” that a merchant is prohibited from asking for, the Fourth District Court of Appeal ruled yesterday.
Div. One, in an unpublished opinion by Justice Richard McIntyre, affirmed a dismissal in favor of Williams-Sonoma Stores, Inc. in a putative class action by a woman who claimed the retailer invaded her privacy by asking for her ZIP code at the register when she made a credit card purchase.
In her complaint, Jessica Pineda said she did not ask, and was not told, whether she needed to give the information to complete her purchase, but that she believed she had to do so. The information that she gave—including her name, credit card number and address—was entered into a database, enabling the company to use customized software to learn other information about her that is entered in other databases.
Pineda sued for violation of the Unfair Competition Law, for requesting and recording personal information in violation of the Song-Beverly Credit Card Act of 1971, and for invasion of privacy in violation of the California Constitution. The company demurred, arguing that she lacked standing to sue under the UCL, that a ZIP code is not personal identification information as defined by the Song-Beverly law, and that she failed to plead all of the elements of an invasion of privacy claim.
Pineda subsequently conceded that she could not sue under the UCL. San Diego Superior Court Judge Ronald Prager sustained the demurrer as to the remaining causes of action, agreeing that a ZIP code is not personal identification information and that Pineda failed to show that she had a reasonable expectation of privacy with respect to her ZIP code or address.
The plaintiff’s counsel appealed, later asking that the appeal was dismissed. The panel declined, however, due to the “continuing public interest based on numerous similar actions filed statewide,” McIntyre explained.
The justice cited Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497, in which the court rejected the argument that a Song-Beverly claim may be pled on the basis of collection of a ZIP code.
The plaintiff argued that the cases were distinguishable because there was no evidence in Party City as to what the store did with the collected information. But McIntyre said the case was controlling.
“Simply put, the Act either allows a retailer to ask customers for a zip code or it prohibits this conduct,” the jurist wrote. “The Party City court concluded, and we agree, that the Act does not prohibit this conduct. Although Pineda asserts a zip code should be covered by the Act because existing technology allows any company or person to locate an individual based on the individual’s name and zip code, this argument is best presented to the Legislature.”
As for the invasion-of-privacy claim, the justice explained that Pineda’s failure to allege that the information was not otherwise publicly available or that she took steps to protect it from public disclosure was fatal. The mere fact that the information might have been sold to third parties for profit, he said, did not make the company’s conduct so egregious as to support a claim under the constitutional provision.
The case is Pineda v. Williams-Sonoma Stores, Inc., D054355.
Copyright 2009, Metropolitan News Company