Scott v. Graphic Center






Filed 6/10/11 Scott v. Graphic Center CA2/3





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MICHAEL D. SCOTT et al., Plaintiffs and Appellants, v. GRAPHIC CENTER et al., Defendants and Respondents.

B219783 (Los Angeles County Super. Ct. No. BC390593)

APPEAL from an order of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed.
Engstrom, Lipscomb & Lack, Walter J. Lack, Jerry A. Ramsey, Paul A. Traina, Jared W. Beilke; Sinclitico & Burns, Dennis J. Sinclitico and Hugh R. Burns for Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole, Joshua C. Traver; LaFollette, Johnson, De Haas, Fesler & Ames, Dennis K. Ames, Douglas Guy Dickson for Defendant and Respondent Direct Mail Services, Inc.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Tim J. Vanden Heuvel and Matthew B. Stucky for Defendant and Respondent Graphic Center.
Steptoe & Johnson, Edward Gregory and Jason Levin for Defendant and Respondent California Public Employees' Retirement System (CalPERS).
Plaintiffs and appellants Michael D. Scott (Scott) and Earle W. Robitaille (Robitaille) (collectively, plaintiffs), individually and on behalf of all others similarly situated, appeal an order denying their motion for class certification of their action against defendants and respondents California Public Employees' Retirement System (CalPERS), Graphic Center (Graphic), and Direct Mail Services, Inc. dba American Mail Service (Direct) (collectively, defendants).[1]
In August 2007, CalPERS sent an election brochure to approximately 391,000 retired members. All or part of the retirees' social security numbers were printed on the address labels, in an unspaced and unhyphenated form, above their names. The brochures were created by Graphic and were mailed by Direct. Plaintiffs filed suit against CalPERS, Graphic and Direct and sought to certify a class of all CalPERS members whose privacy rights were violated by this disclosure of their social security numbers.
The trial court denied certification of plaintiffs' three statutory causes of action – violation of Business and Professions Code section 17200 et seq. (Unfair Competition Law) (UCL), violation of Civil Code 1798 et seq. (Information Practices Act of 1977), and violation of Government Code section 20230 (confidential character of data and individual records of CalPERS members) – on the ground a class action is not the superior means of resolving the litigation. The trial court denied class certification of plaintiffs' negligence claim on the ground of lack of superiority, as well as because common questions did not predominate. The trial court also found Scott and Robitaille were not representative of the class they sought to represent.
The trial court is afforded great discretion in granting or denying certification, and a trial court ruling supported by substantial evidence generally will not be disturbed unless (1) improper criteria were used, or (2) erroneous legal assumptions were made. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327 (Sav-On).) Any valid pertinent reason stated will be sufficient to uphold the order. (Id. at p. 327.)
Based on our review of the record, we perceive no abuse of discretion in the trial court's ruling and therefore affirm the order denying class certification.
FACTUAL AND PROCEDURAL BACKGROUND
1. The data security breach.
In August 2007, CalPERS sent a brochure in the mail to 391,000 retiree members, notifying them of an upcoming election for the retiree representative seat on the CalPERS Board of Administration. CalPERS hired Graphic to conduct the printing of the brochure and to hire a mail house for addressing and placing the brochure in the mail. Graphic hired Direct to do so. The brochures were sent out via U.S. Mail with all or part of the social security number of each retiree, appearing as a series of numbers without hyphens, printed above the retiree's name and address, on the exterior of the brochure. There was nothing on the address panel to indicate the sequence of numbers was a social security number.
2. The source of the disclosure.
CalPERS provided a disk to Direct for use in connection with the mailing, and the disk included the names, addresses and social security numbers of 391,000 retiree members. Tim Tannehill at Direct made the decision to print the nine digit identification number above the address on the proofs he provided to CalPERS, without inquiring what the number signified. CalPERS then reviewed and approved the proofs. On or about August 13, 2007, the brochures were sent out bearing the retirees' social security numbers.
3. CalPERS' response to the data security breach.
On August 15, 2007, CalPERS received a complaint from a CalPERS member that his social security number was printed on the outside of a brochure, above his name and address.
On August 17, 2007, CalPERS sent a letter to each member that had received the brochure alerting them a â€