Filed 4/1/16; part. pub. order 4/21/16 (see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



JESSICA L. BROOKS,                                         D067491

         Plaintiff and Appellant,

         v.                                                (Super. Ct. No.
                                                            37-2012-00097107-CU-BC-CTL)
CARMAX AUTO SUPERSTORES
CALIFORNIA, LLC,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

         Rosner, Barry & Babbitt, Hallen D. Rosner and Kendra J. Woods for Plaintiff and

Appellant.

         Schlichter & Shonack, Kurt A. Schlichter, Steven C. Shonack and Jamie L.

Keeton for Defendant and Respondent.

         Defendant CarMax Auto Superstores California LLC (CarMax) advertises and

sells cars as "certified" used vehicles. It sold a certain 2008 used Jeep Wrangler (the

Jeep) to plaintiff Jessica Brooks. CarMax had promoted the Jeep as a certified used
vehicle, inspected the Jeep, conducted some repairs, and ultimately placed a signed

Certified Quality Inspection document (the CQI Certificate) for the Jeep in the Jeep's

glove box. The CQI Certificate remained in the glove box at all relevant times.

       Several months after Brooks purchased the Jeep, she drove it through a deep

puddle and the engine was so severely damaged that it had to be replaced. She thereafter

demanded (among other things) that CarMax rescind the purchase agreement and buy the

Jeep back. When CarMax rejected her demands, she filed this action alleging it violated

Vehicle Code section 11713.18 (section 11713.18) in connection with her purchase of the

Jeep, because neither the content of the CQI Certificate nor its method of delivery to her

complied with CarMax's duties under section 11713.18. Brooks pleaded claims against

CarMax under California's Consumer's Legal Remedies Act (Civ. Code, § 1750 et seq.

(CLRA)) and Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq. (UCL)).

       After a court trial on stipulated facts, the court ruled Brooks had suffered no

damage from CarMax's alleged violations of section 11713.18, and therefore concluded

she did not have standing to pursue claims under the CLRA or the UCL. The court

entered judgment for CarMax. Brooks asserts on appeal that reversal is required because

she adequately demonstrated the type of damage necessary to prosecute a claim under the

CLRA or the UCL or, alternatively, she was entitled to prosecute her claims under the

CLRA or the UCL without showing any injury.




                                             2
                                             I

                                    BACKGROUND

       A. Factual Context1

       CarMax advertises and sells cars as "certified" used vehicles. Brooks was

searching for a used vehicle and, on November 11, 2011, she bought the Jeep, which was

a "certified" used vehicle, from CarMax. She would not have purchased the Jeep had it

not been a "certified" vehicle.

       CarMax performs a Certified Quality Inspection (CQI) on every vehicle it sells to

consumers, and performed that inspection on the Jeep. CarMax expended at least 15.7

man hours and over $1,000 in conducting the CQI for the Jeep, not including the

additional time spent on repairs it sublet to other shops. When CarMax technicians

conduct a CQI, the technicians use a document (the CQI/VQI checklist) that lists

components and observations concerning the vehicle, and information from the CQI/VQI

checklist is entered into CarMax vehicle repair order history database, but the physical

CQI/VQI checklist is not retained by CarMax. Upon completion of the CQI, a signed

CQI Certificate is placed into the glove box of the inspected vehicle. The signed CQI


1       Our factual statement reviews the facts most favorably in support of the judgment
because, although this case was tried on stipulated facts, we nevertheless must review the
court's findings under the substantial evidence standard of review when, as here, the court
makes additional inferences based on those stipulated facts. (Axis Surplus Ins. Co. v.
Glencoe Ins. Ltd. (2012) 204 Cal.App.4th 1214, 1222.) Our review must view the
evidence most favorably to the prevailing party, including both express and implied
findings of fact made by the court in its statement of decision rendered after a nonjury
trial. (See, e.g., SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121
Cal.App.4th 452, 461-462.)

                                             3
Certificate for the Jeep, which listed the Jeep's stock number, was placed in its glove box

at the time the inspection was completed and remained in the glove box until after Brooks

purchased the Jeep.

       Brooks drove the Jeep for over 3000 miles without any problems. However, on

February 11, 2012, she drove it through a 6" to 12" deep puddle and the engine seized.

She used a third party repair shop to replace the engine, but the Jeep thereafter had

occasional problems with the starter and with warning light activations.

       Brooks demanded (among other things) that CarMax rescind the purchase

agreement and buy the Jeep back. When it rejected her demands, she filed this action

alleging CarMax violated section 11713.18 in connection with her purchase of the Jeep,

because neither the content of the CQI Certificate nor its method of delivery to her

complied with CarMax's obligations under section 11713.18.

       B. Contentions and Ruling Below

       Brooks argued CarMax violated the mandates of section 11713.18: (1) the content

of the CQI Certificate was inadequate because it failed to " 'indicat[e] all components

inspected,' " and (2) the placement of the CQI Certificate in the Jeep's glove compartment

did not comply with CarMax duty to provide it " 'prior to sale.' " She asserted those

violations of section 11713.18 were adequate to support her claims under the CLRA and

UCL. The court concluded that, even assuming the content or mode of delivery of the

CQI Certificate did not strictly comply with section 11713.18, Brooks did not have

standing to pursue claims under the CLRA and UCL for noncompliance unless she also

showed she suffered some tangible injury from noncompliance, and there was no

                                             4
evidence she was actually damaged by either the content of CarMax's CQI Certificate or

by the mode it was delivered to her. The court noted it was undisputed the Jeep was

actually inspected pursuant to the terms of CarMax's used vehicle certification program,

and a certificate memorializing its compliance with the terms of that program was issued

by CarMax. The court reasoned that because this was the product Brooks wanted to

purchase and actually received on November 11, 2011, the fact the paperwork

memorializing CarMax's certification (i.e. the CQI Certificate) was "provided" to her in

her glove box (rather than in some other fashion) caused no actual injury to her.

                                             II

                                STANDARD OF REVIEW

       There are two distinct standards of review applicable to our resolution of Brooks's

claims in this appeal. Because this case was tried on stipulated facts, the stipulated facts

are conclusive and may not be contradicted. (Linsk v. Linsk (1969) 70 Cal.2d 272, 276.)

However, because the trial court made inferences based on those stipulated facts, we

must review those additional factual findings based on those inferences under the

substantial evidence standard of review. (Axis Surplus Ins. Co. v. Glencoe Ins. Ltd.,

supra, 204 Cal.App.4th at p. 1222.) Our review of these additional factual findings

" ' " 'begins and ends with the determination as to whether there is any substantial

evidence contradicted or uncontradicted which will support the finding of fact.'

[Citations.]" ' " (Ibid.)

       When reviewing the trial court's legal conclusions, including its construction of a

statutory scheme, we apply de novo review. (Penner v. County of Santa Barbara (1995)

                                              5
37 Cal.App.4th 1672, 1676; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24

Cal.4th 415, 432.) "In construing statutes, our goal is to ascertain the intent of the

Legislature in order to effectuate the law's purpose." (Martinez v. Kia Motors America,

Inc. (2011) 193 Cal.App.4th 187, 192.) We begin with the words of the statute and "give

them 'their usual and ordinary meaning.' [Citation.] 'The statute's plain meaning controls

the court's interpretation unless its words are ambiguous.' [Citations.] 'If the statutory

language permits more than one reasonable interpretation, courts may consider other aids,

such as the statute's purpose, legislative history, and public policy.' " (Imperial Merchant

Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.)2

       On appeal, we must affirm the judgment if it is correct on any theory, even if the

trial court's reasoning was erroneous (Muller v. Fresno Community Hospital & Medical

Center (2009) 172 Cal.App.4th 887, 906-907) because " 'we review the trial court's result

for error, and not its legal reasoning.' " (Bains v. Moores (2009) 172 Cal.App.4th 445,

478.) Even if the statement of decision reveals the legal basis for the ruling was

incorrect, we "cannot undo the effect of the ruling or the ensuing judgment on the ground




2       CarMax has requested that we take judicial notice of certain legislative history
surrounding the bill that ultimately enacted section 11713.18, along with numerous
decisions by federal trial judges addressing claims analogous to the claims raised by
Brooks in this action. We grant the motion insofar as it asks this court to take judicial
notice of the legislative history appended to CarMax's motion (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31) but
deny the motion insofar as it requests that we take judicial notice of nonbinding federal
trial court decisions. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418.)

                                              6
that the court may have misapplied [the law] as long as any other correct legal reason

exists to sustain [the judgment]." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)

                                               III

                                         ANALYSIS

       A. Brooks's Claims Under Kwikset 3

       Brooks argues the court erred in ruling she did not have standing to pursue her

claims based on the trial court's finding she suffered no injury from the alleged violations.

Her first specification of error, apparently raised for the first time on appeal, is that the

absence of injury is irrelevant to her standing to pursue her claims under the CLRA and

UCL. Instead, she argues the Legislature intended a violation of section 11713.18 would

be actionable under the CLRA and the UCL even without any showing of actual injury

from the alleged violation.

       Brooks alternatively argues that, under the rationale of Kwikset, she adequately

demonstrated actual injury. She asserts she would not have purchased the Jeep had it not

qualified as a "certified" vehicle, regardless of whether the Jeep was as mechanically

sound as a Jeep that did qualify as a "certified" vehicle. She argues no vehicle can

qualify as a "certified" vehicle under section 11713.18, subdivision (a), regardless of

whether it was actually inspected and approved by CarMax under its inspection program,

unless (among other things) the vendor provides the buyer with a "completed inspection

report indicating all the components inspected," and "provides" that report "prior to sale."


3      Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 (Kwikset).

                                               7
She asserts (1) the CQI Certificate provided by CarMax in connection with her purchase

does not satisfy the statutory mandate of a "completed inspection report indicating all the

components inspected," and (2) CarMax did not "provide" that report "prior to sale."

Because Brooks contends the content of the CQI Certificate did not satisfy the statutory

mandate, and (even assuming its content was adequate) the mode of delivery of the CQI

Certificate did not satisfy the statutory mandate, the Jeep did not qualify to be labeled as

a "certified" vehicle (even if its intrinsic mechanical condition was equivalent to a

"certified" vehicle), and therefore she suffered actual injury within the rationale of

Kwikset by purchasing something that was mislabeled. Because these arguments rest on

Kwikset, we summarize that case and its holdings.

       In Kwikset, the plaintiffs alleged Kwikset falsely marketed and sold locksets

labeled as "Made in U.S.A.," arguing the locksets were mislabeled because they in fact

contained foreign-made parts or involved foreign manufacture. The appellate court,

evaluating the newly adopted requirements of Proposition 64 depriving a plaintiff of

standing to bring a UCL claim absent actual injury, concluded the plaintiffs had not

alleged any loss of money or property because they received locksets in return that were

neither overpriced nor defective and therefore did not have standing to bring a UCL

claim. (Kwikset, supra, 51 Cal.4th at p. 319.) The Supreme Court, after recognizing that

"the core" of the appellate court's ruling was that "plaintiffs should not be accorded

standing because they received the benefit of their bargain . . . [by] receiv[ing] a fully

functioning product . . . even if the product label contains misrepresentations that may

have been relied upon by a particular class of consumers" (id. at p. 332), rejected the

                                              8
Court of Appeal's conclusion there was an absence of economic injury. Instead, the

Supreme Court reasoned, in the context of labels designed to induce a consumer to select

among competing products, "labels matter." (Id. at p. 328.) Kwikset noted standing

requires that a party "(1) establish a loss or deprivation of money or property sufficient to

qualify as injury in fact, i.e. economic injury, and (2) show that that economic injury was

the result of, i.e., caused by, the unfair business practice or false advertising that is the

gravamen of the claim." (Id. at p. 322.) The Kwikset court reasoned that when a

consumer alleges purchase of a product based on the information imparted by its label,

and the information was false, and he or she would not have purchased it absent that

misrepresentation, the consumer has satisfied the "actual injury" requirements for

standing even if the product he or she actually obtained was functionally equivalent to the

product the consumer thought he or she was buying. (Id. at pp. 332-337.) Against this

background, we turn to Brooks's claims.

       B. A Violation of Section 11713.18 Is Not "Per Se" Actionable Under the CLRA

or the UCL

       Brooks first claims a violation of section 11713.18 is "per se" actionable under the

CLRA and UCL, regardless of any injury. Section 11713.18, subdivision (b), provides

that "[a] violation of [section 11713.18] is actionable under [the CLRA], [the UCL] . . . or

any other applicable state or federal law. The rights and remedies provided by [section

11713.18] are cumulative and shall not be construed as restricting any right or remedy

that is otherwise available." Brooks contends the trial court's conclusion she lacked

standing to pursue her claims under the CLRA and UCL was error because the text of

                                               9
section 11713.18 shows it was intended to make actionable any violation of that section

without any showing the plaintiff was actually injured from the alleged violation.

       Ordinarily, "under the CLRA, relief is limited to consumers who have suffered, in

fact, damage as a result of an illegal practice." (Davis-Miller v. Automobile Club of

Southern California (2011) 201 Cal.App.4th 106, 122.) Similarly, although the UCL did

not predicate standing on a showing of injury or damage prior to the 2004 enactment of

Proposition 64, that lacuna rendered the UCL "subject to abuse by attorneys who used it

as the basis for legal ' "shakedown" ' schemes" (Buckland v. Threshold Enterprises, Ltd.

(2007) 155 Cal.App.4th 798, 812, disapproved on other grounds in Kwikset, supra, 51

Cal.4th at p. 337) and frivolous lawsuits (Californians for Disability Rights v. Mervyn's,

LLC (2006) 39 Cal.4th 223, 228). "To address this problem, Proposition 64 amended

[the UCL] to accord standing only to certain specified public officials and to any person

who ' " 'has suffered injury in fact and has lost money or property as a result of such

unfair competition.' " ' " (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583,

1590, quoting Buckland, at p. 812.) "Thus, in the aftermath of Proposition 64, only

plaintiffs who have suffered actual damage may pursue a private UCL action." (Ibid.)

       Brooks argues that section 11713.18, subdivision (b), by providing that a violation

of section 11713.18 "is actionable under [the CLRA or the UCL]," was intended to

exempt her from showing the "actual injury" predicate ordinarily necessary to making a

claim "actionable" under the CLRA and the UCL. She cites no pertinent authority for

this reading of section 11713.18, subdivision (b), and instead relies solely on Rojas v.

Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997 (Rojas). Although Rojas did

                                             10
conclude a specific remedy provided under the so-called Rees–Levering Act (Civ. Code,

§ 2981 et seq.) could be invoked even if the plaintiff suffered no actual harm (Rojas, at

p. 1005), it did not hold the CLRA and UCL claims asserted by the plaintiff in that action

(id. at p. 1006) could also be pursued without actual injury.4 Moreover, Rojas's

conclusion rested on two important factors not present here. First, Rojas examined a

statutory scheme that included an express additional statutory remedy for its violation,5

and no similar additional remedy is expressly appended to section 11713.18. (Cf. County

of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 825 ["Where statutes

involving similar issues contain language demonstrating the Legislature knows how to

express its intent, ' "the omission of such provision from a similar statute concerning a

related subject is significant to show that a different legislative intent existed with

reference to the different statutes." ' ") Moreover, Rojas's conclusion as to the intent of

the express statutory remedy was confirmed by the clear legislative history declaring the

Legislature intended the remedy provided by the Rees–Levering Act to be available

" 'regardless of the nature of the disclosure violation or any consumer harm' " (Rojas,



4      To the contrary, in Rojas, the plaintiff pleaded causes of action for violation of the
CLRA and UCL and on appeal the court ordered demurrers to those claims be sustained,
albeit with leave to amend. (Rojas, supra, 212 Cal.App.4th at p. 1006.)

5      The statute provided that, if the seller violated certain disclosure requirements,
"the conditional sale contract shall not be enforceable . . . until after the violation is
corrected as provided in Section 2984, and, if the violation is not corrected, the buyer
may recover from the seller the total amount paid . . . by the buyer . . . ." (Civ. Code,
§ 2983, subd. (a).) Thus, the Rees–Levering Act contained an internal remedy (i.e.,
declaring the contract unenforceable) absent from section 11713.18.

                                              11
supra, 212 Cal.App.4th at p. 1005), and no similar language can be found in the

legislative history accompanying section 11713.18.

       There is no basis for concluding section 11713.18, subdivision (b), by providing

that a violation of section 11713.18 is "actionable" under the CLRA or the UCL, was

intended to dispense with the "actual injury" predicate ordinarily necessary before a claim

for a violation of that section can be "actionable" by a private party under the CLRA and

the UCL. We must evaluate whether Brooks's claims were viable under principles

generally applicable to claims under the CLRA and the UCL.

       C. The "Content of the CQI Certificate" Claim

       Brooks's principal contentions seek to bring her action under the ambit of Kwikset.

Her first contention is that section 11713.18, subdivision (a)(6), requires a "completed

inspection report indicating all the components inspected" in order to label the vehicle as

"certified," and she claims that document effectively was never provided because the CQI

Certificate provided by CarMax to Brooks does not satisfy this statutory requirement and

was therefore a nullity. Because this violation of section 11713.18, subdivision (a),

precluded CarMax from promoting or selling the Jeep as a "certified" vehicle, Brooks

argues her action falls within the ambit of Kwikset.

       We agree with Brooks that the legislative scheme contemplates certain minimal

standards must be met before a dealer may promote or sell a vehicle as certified, among

which is that a dealer must provide a "completed inspection report indicating all the

components inspected" to the buyer. We also agree that, if those standards are not

satisfied, a vehicle marketed and sold as certified has been mislabeled, and a buyer who

                                            12
establishes they would not have purchased the vehicle absent that "certified" label has

standing to pursue claims for violation of the CLRA and UCL under the rationale of

Kwikset, regardless of whether the particular vehicle purchased might be as mechanically

sound or intrinsically valuable as a certified vehicle.

        However, we conclude the trial court correctly entered judgment against Brooks

(Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981) because we reject Brooks's claim that

the CQI Certificate was deficient in its content. The plain language of the statute requires

only a "report indicating all the components inspected," and we conclude CarMax's CQI

Certificate does satisfy the minimal obligations imposed by section 11713.18, subdivision

(a)(6). We begin by noting that our role in statutory construction starts with the words of

the statute, "because they generally provide the most reliable indicator of legislative

intent." (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) A court " 'may not provide words or

language which are not found in a statute in order to accommodate a litigant' " (Mocek v.

Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 408), and "our own views concerning the

theoretical desirability or value of such [language is] beside the point. In construing this,

or any, statute, our office is simply to ascertain and declare what the statute contains, not

to change its scope by reading into it language it does not contain or by reading out of it

language it does. We may not rewrite the statute to conform to an assumed intention that

does not appear in its language." (Vasquez v. State of California (2008) 45 Cal.4th 243,

253.)

        We find it significant that the statutory language employed by section 11713.18,

subdivision (a)(6), imposes no minimum amount of inspection a dealer must perform

                                              13
before a vehicle may be labeled as a "certified" vehicle,6 other than perhaps such

inspection as can be implied from subdivisions (a)(1) through (a)(6), thus leaving to each

dealer the election of conducting either a more rigorous inspection or a less rigorous

inspection. We construe the requirement imposed by section 11713.18, subdivision

(a)(6)—of providing a buyer with a report listing "all the components inspected"—as

intended to provide the buyer with a report illuminating the relative rigorousness of the

inspection the dealer has elected to conduct, and nothing more. We believe CarMax's

CQI Certificate satisfies that obligation, because it indicates the scope of the inspection

program CarMax has elected to perform (by stating the program "check[s] over 125

points including (but not limited to)" the items listed on CarMax's CQI Certificate) and

certifies the vehicle "passed" the inspection program used by CarMax.

       We are unpersuaded by Brooks's arguments that section 11713.18, subdivision

(a)(6), requires "something more" than is provided by CarMax's CQI Certificate. For

example, Brooks contended below that the actual results of the inspection, such as the

CQI/VQI checklist used by CarMax technicians that lists the order in which the various

parts and systems are to be inspected and notates their observations concerning the

specific vehicle, would be necessary to satisfy the "report" requirement imposed by

section 11713.18, subdivision (a)(6). Although the CQI/VQI checklist certainly would




6      Indeed, the statute does not facially impose any explicit obligation for a dealer
even to repair any problems revealed by the inspection the dealer elects to perform.

                                             14
satisfy the "report" requirement, we cannot conclude the CQI/VQI checklist is the

minimum required to satisfy section 11713.18, subdivision (a)(6).

       Although the legislative history provides little insight into the precise claims

asserted by Brooks, we have taken judicial notice of documents (see fn. 2, ante) showing

that, as originally written, section 11713.18, subdivision (a)(6) provided "[p]rior to sale,

the dealer provides the buyer with a completed inspection report indicating all the

components inspected pursuant to the vehicle certification program and certifies that all

of the inspected components meet the express written standards of the vehicle

certification program." (Assem. Bill No. 68 (2005-2006 Reg. Sess.) as introduced Jan. 3,

2005, § 7.) However, both the "pursuant to the vehicle certification program" language

and the "certifies that all the inspected components meet the express written standards of

the vehicle certification program" language was deleted from the enactment, which

deletion is persuasive that the enactment " 'should not be interpreted to include what was

left out.' " (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1107.)

Thus, the Legislature originally contemplated requiring more than a report "indicating all

components inspected," both by language that would have tied that report to the entirety

of the dealer's inspection program (i.e. by requiring the report to indicate "all the

components inspected pursuant to the vehicle certification program") and by language

that would have required the report to guarantee the postinspection condition of these

components (by requiring the report "certif[y] that all the inspected components meet the

express written standards of the vehicle certification program"). The deletion of those

clauses suggests the Legislature did not intend to impose either requirement, but Brooks's

                                              15
construction of the language would resurrect these clauses by mandating that everything

actually inspected by the dealer during the dealer's certification program be listed on the

report.

          Brooks also suggests the requirement for a report "indicating all the components

inspected" renders CarMax's CQI Certificate inadequate because the CQI Certificate lists

only "125 points" when in fact more than the listed 125 points were inspected. We reject

her claim, for two reasons. First, the CQI Certificate states CarMax "check[s] over 125

points including (but not limited to)" the 125 specifically listed items (italics added), and

therefore the CQI Certificate is an accurate portrayal of the inspection CarMax chose to

conduct. More importantly, Brooks's claim under Kwikset rests not on the precise

parameters of CarMax's inspection, but instead rests solely on whether the Jeep was

qualified to carry the label of "certified." Her argument contains the unstated predicate

that, had CarMax conducted its inspection of only the 125 points described in the CQI

Certificate and immediately ceased inspecting the Jeep once those 125 points had been

inspected, CarMax would at that moment have been entitled to append the label

"certified" to the Jeep and would have been free from any liability under section

11713.18 or under Kwikset. However, Brooks's construction of section 11713.18 posits

that, once CarMax conducted any additional inspection, the right to append the label

"certified" to the Jeep evaporated and CarMax would become exposed to liability under

section 11713.18. We decline to adopt her interpretation of section 11713.18 because we

cannot ascribe to the Legislature the intent that a consumer protection statute would

protect a dealer who limits its inspection to the minimal amount required but

                                              16
concomitantly exposes to liability a dealer who "goes the extra mile" when inspecting a

vehicle. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 [" ' "[i]t is a settled

principle of statutory interpretation that language of a statute should not be given a literal

meaning if doing so would result in absurd consequences which the Legislature did not

intend" ' "].) We are convinced Brooks's interpretation of this consumer protection

statute—as penalizing businesses that do more to protect a consumer while protecting

businesses that do less to protect a consumer—is an " ' "absurd consequence[] which the

Legislature did not intend." ' " (Ibid.)

       D. The "Mode of Delivery" Claim

       Brooks alternatively asserts that, even assuming the content of the CQI Certificate

satisfied section 11713.18, subdivision (a)(6), CarMax's chosen mode of delivering that

document to Brooks—placing it in the glove box of the Jeep after the inspection was

completed—violated section 11713.18, subdivision (a)(6). Specifically, the statute states

it is a violation of section 11713.18 to sell a vehicle as "certified" if the dealer fails

"[p]rior to sale . . . to provide the buyer with [the CQI Certificate]." (Id., subd. (a)(6).)

Brooks argues that, because she did not discover the certificate until weeks after she had

purchased the Jeep, CarMax violated the statute even though it placed the CQI Certificate

in the glove box of the Jeep once the inspection had been completed and it remained there

until found by Brooks.7



7      Although we noted Brooks's claim of actual injury under Kwikset would have been
tenable had CarMax been precluded from labeling the Jeep as "certified" because
CarMax's CQI Certificate was too deficient in its content to qualify as a "report" for
                                               17
       The statute does not regulate the precise manner in which this obligation must be

discharged, and we must therefore determine whether the mode chosen by CarMax

comports with the meaning of the statute. In discerning the scope and meaning of that

provision, " '[w]e begin with the plain language of the statute, affording the words of the

provision their ordinary and usual meaning and viewing them in their statutory context,

because the language employed in the Legislature's enactment generally is the most

reliable indicator of legislative intent.' " (People v. Cornett (2012) 53 Cal.4th 1261,

1265.) When interpreting statutory language according to the usual, ordinary import of

the language employed by the Legislature, we may "start with the words themselves" as

defined by the dictionary. (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d

30, 43; People v. Whitlock (2003) 113 Cal.App.4th 456, 462 [when interpreting a statute,

"[t]o ascertain the common meaning of a word, 'a court typically looks to dictionaries' "].)




purposes of section 11713.18, subdivision (a)(6), we are substantially less certain about
the tenability of her Kwikset argument of actual injury based on her "mode of delivery"
claim. Kwikset is distinguishable because the product there could never have qualified
for the label "Made in America," and the injury was that the plaintiff relied on that label
to choose to purchase the Kwikset lockset rather than a different lockset. In contrast,
under Brooks's argument, the Jeep did qualify to be advertised with the "certified" label
(because it had not yet been sold without providing the report), and it was this
representation on which she detrimentally relied in her decision-making process. Indeed,
under her argument, the "certified" label remained accurate until the moment the Jeep
was sold because (up until that moment) CarMax had not yet defaulted on the obligation
Brooks claims CarMax owed, and therefore the Jeep was mislabeled because it was sold
with the CQI Certificate in the glove compartment. Although we need not evaluate this
conundrum because of our conclusion CarMax adequately "provided" the report prior to
sale, it appears Kwikset's analysis of actual injury creates logical difficulties when
extended to Brooks's "mode of delivery" claim.

                                             18
       We believe the key to construing CarMax's obligation under section 11713.18,

subdivision (a)(6), is the verb "provide."8 The verb "provide," as defined by various

dictionaries, is "1. to make available; furnish . . . 2. to supply or equip" (Random House

Dict. (2d ed. 1987) (1987) p. 1556), or "1. To furnish; supply . . . 3. to make available;

afford" (American Heritage Dict. (2d college ed. 1985) p. 997), or similar usages. The

statute thus contemplates that a dealer satisfies its obligation under section 11713.18,

subdivision (a)(6), as long as the dealer has made available or furnished the requisite

report to the buyer sometime before the sale. The evidence that the CQI Certificate was

placed in the glove box at the conclusion of CarMax's inspection and was still there

weeks after Brooks purchased the Jeep permits the inference (Axis Surplus Ins. Co. v.

Glencoe Ins. Ltd., supra, 204 Cal.App.4th at p. 1222) that the CQI Certificate was in the

Jeep when she arrived at CarMax's San Diego lot, and remained there as she considered


8       Brooks's appellate argument focuses solely on the clause "prior to sale" and
rhetorically asks, "Is there really any doubt that 'prior to sale' means before a consumer
signs [his or her] sales contract?" We agree the clause admits of little ambiguity because
it specifies the required conduct occur before the "sale," although it does not impose any
minimum temporal separation between the required conduct and the "sale." However,
her claim—that there can be no doubt it means the CQI Certificate must be provided
"before the sales contract is signed"—is at least murky. Certainly, the Legislature
showed (in the same bill that enacted § 11713.18, subd. (a)(6)) that it was fully capable of
expressing such a temporal relationship to execution of a sales contract when that was its
intent (see, e.g., Civ. Code, § 2982, subd. (h) [requiring conditional sales contract to
include language advising buyer, "After this contract is signed, the seller may not change
the financing"]), which militates against Brooks's claim that the language "prior to sale"
clearly was intended to signify "prior to signing the sales contract." (Cf. County of San
Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 825 ["Where statutes
involving similar issues contain language demonstrating the Legislature knows how to
express its intent, ' "the omission of such provision from a similar statute concerning a
related subject is significant to show that a different legislative intent existed with
reference to the different statutes." ' "].)
                                             19
whether to purchase the Jeep. Although she may have conducted only a cursory

examination of the Jeep before deciding to buy it, and therefore ignored the paperwork

contained in the vehicle that was "available" to her, this did not detract from the fact that

CarMax did "make available" the CQI Certificate to Brooks "prior to sale" of the Jeep.

       E. Conclusion

       Although the trial court premised its judgment on Brooks's lack of actual injury,

we affirm the judgment as correct (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981)

because we conclude both the content of the CQI Certificate and the mode it was

provided to Brooks satisfied the requirements of section 11713.18, subdivision (a)(6).

                                       DISPOSITION

       The judgment is affirmed. CarMax is entitled to costs on appeal.




                                                                            McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




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Filed 4/21/16
                       CERTIFIED FOR PARTIAL PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



JESSICA L. BROOKS,                                  D067491

        Plaintiff and Appellant,

        v.                                          (Super. Ct. No.
                                                     37-2012-00097107-CU-BC-CTL)
CARMAX AUTO SUPERSTORES
CALIFORNIA, LLC,                                    ORDER CERTIFYING OPINION
                                                    FOR PARTIAL PUBLICATION
        Defendant and Respondent.



THE COURT:

        The opinion in this case filed April 1, 2016, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a)

for publication is GRANTED, with the exception of Part III.A.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
       ORDERED that the words "Not to Be Published in Official Reports" appearing on

page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports, with the exception of Part III.A.




                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




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