Here’s a fun one.
It seems that Denise Keller, the mother of 3- and 5-year old kids decided she’d had it with cardboard-like pizza, a handful of broken games (guaranteed at the Costa Mesa location), and a 35¢ return on $10 worth of tokens. But instead of boycotting Chuck E. Cheese’s, like most of us did, she sued them.
In a federal class action suit filed in the county just south of the OC, Keller and her lawyer, a 15-year law veteran, read California Penal Code § 330(a) and (b) and figured out that some of the games may just be considered gambling devices. When a colleague posted the headline, I read responsive posts of “I hope that lawyer gets sanctioned for filing a frivolous lawsuit” and other statements about how unethical this suit is.
Now, I’m not going to go into what’s required in a class action this time around (but that post is coming). But, I will say that it may be difficult to find the class of people who can prove they purchased tokens and then played those specific games listed in the complaint (Thunderation, Wheel of Fortune, Deal or No Deal, made the list). I’m thinking the CSI crew may need to confirm finger prints.
All kidding aside, before passing judgment on my fellow shark, I decided to read the Penal Code section to see how he could possibly have thought this was a case that could pass muster. I mean, Chuck E. Cheese’s has been around forever. So have places like Dave & Buster’s. Well, just to give you a feel for what we lawyers get paid the big bucks to draft, get a load of this:
(a) Every person, who has in his or her possession or under his or her control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained, or kept in any room, space, inclosure, or building owned, leased, or occupied by him or her, or under his or her management or control, any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked or hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner and by means whereof, or as a result of the operation of which any merchandise, money, representative or articles of value, checks, or tokens, redeemable in or exchangeable for money or any other thing of value, is won or lost, or taken from or obtained from the machine, when the result of action or operation of the machine, contrivance, appliance, or mechanical device is dependent upon hazard or chance, and every person, who has in his or her possession or under his or her control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained, or kept in any room, space, inclosure, or building owned, leased, or occupied by him or her, or under his or her management or control, any card dice, or any dice having more than six faces or bases each, upon the result of action of which any money or other valuable thing is staked or hazarded, or as a result of the operation of which any merchandise, money, representative or article of value, check or token, redeemable in or exchangeable for money or any other thing of value, is won or lost or taken, when the result of action or operation of the dice is dependent upon hazard or chance, is guilty of a misdemeanor.
Sadly, I followed along pretty well with this monstrous run-on sentence.
In layperson’s terms, you can’t have games that use tokens where you can win or lose things of value (or representative of value) where NO skill is involved (so pinball machines that offer free additional games and Skee Ball would not be considered “gambling devices”).
At first I scoffed at the examples in the Complaint (I’ve hooked you now, so you can read the 7-page allegations here). “There’s skill involved,” I said. In Wheel of Fortune, you have to time the coin drop which means you employ hand-eye coordination and the ability to time a moving object. But, then I considered one of my son’s favorite games, Deal or No Deal. We play it at D&B’s. Pure luck. The only question is will you win 2 tickets or 1,000?
I then considered that maybe the code section would be worded in such a way as to allow for the winning of even one ticket to consider a game to be outside the scope of Penal Code § 330. In other words, if you played with the knowledge that you were guaranteed at least one ticket (versus zero), would this game of chance for one or more tickets be an exception? Nope. The statute isn’t worded that way. Some will argue that the exchange of money into coins and the subsequent reward of tickets removes Chuck’s games outside the scope of this code. But not so fast. These tickets are redeemable for prizes, or “things of value.” They are worthless anywhere else except at Chuck E.’s restaurant, thereby forcing you to redeem them for crappy toys. Consequently, quarters become tokens which become tickets which become “things of value.” I don’t recall if I’m supposed to apply modus tonens or modus tollens from my UCLA philosophy class, so I’ll just apply the law of congruency from high school Geometry and say that quarters = things of value.
I think this case might make it past the motion to dismiss, though I have my doubts about obtaining class certification.
Now, I’m not a fan of class actions and, as I stated in a previous post, I hate that the lawyers seem to benefit from their time put in while the consumer gets a coupon that requires additional patronage of the offending business. However, I really do hate feeling ripped off at these gaming places where I give my kids $25 worth of D&B credits (and every game is 3.4 or 4.7 credits) all so they can win about $3.50 worth of candy and a rubber football. I don’t really do it for the prizes, but the kids like to save their ticket credits for the big-ticket items, which I’m pretty sure equates to about $100 for a $10 stuffed Homer Simpson.
Oh, and in case you’ve been scratching your head this whole time wondering how a person can sue based on a criminal statute, the law provides for civil claims based on such violations. The best example of this is a murder trial where the state sues the alleged, but that person can also be sued by the family for wrongful death.
I’ll keep you posted on how this whole madness works out. And if I were Dave & Buster, I’d start looking out for the process server.