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YABSLEY v. CINGULAR WIRELESS, LLC

No. B198827.

176 Cal.App.4th 1156 (2009)

RICHARD A. YABSLEY, Plaintiff and Appellant, v. CINGULAR WIRELESS, LLC, Defendant and Respondent.

Court of Appeals of California, Second District, Division Six.

August 19, 2009.

Attorney(s) appearing for the Case

Pettersen & Bark, William D. Pettersen; Grokenberger & Smith and James H. Smith for Plaintiff and Appellant.

McKenna Long & Aldridge, Ross H. Hyslop, James A. Tabb, Amy H. Ljungdahl and Gary K. Brucker, Jr., for Defendant and Respondent.

Edmund G. Brown, Jr., Attorney General, James Humes, Chief Deputy Attorney General, Frances T. Grunder, Assistant Attorney General, Albert Norman Shelden, Special Assistant Attorney General, and Michele Van Gelderen, Deputy Attorney General, as Amicus Curiae upon request of the Court of Appeal.

Kristine Cazadd, Chief Counsel, Robert W. Lambert, Assistant Chief Counsel, and John L. Waid, Tax Counsel IV, for State Board of Equalization, as Amicus Curiae upon request of the Court of Appeal.

OPINION

PERREN, J. —

Respondent Cingular Wireless, LLC (Cingular), advertised a cellular phone for sale at half the retail price if the purchaser also enrolled in a calling plan package. The California Code of Regulations requires that sales tax be computed on the nonsale price of the product. The regulation permits, but does not require, that the charge be passed on to the customer. Cingular did so without informing the customer prior to sale that...

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