Filed 9/25/13 Harrelson v. Carmax Auto Superstores California CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



TIFFINI HARRELSON,

         Plaintiff and Appellant,                                        E054435

v.                                                                       (Super.Ct.No. CIVRS1104169)

CARMAX AUTO SUPERSTORES                                                  OPINION
CALIFORNIA, LLC,

         Defendant and Respondent.


         APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Rosner, Barry & Babbitt, Hallen D. Rosner, Christopher P. Barry, and Angela J.

Patrick for Plaintiff and Appellant.

         Arent Fox LLP, Aaron H. Jacoby and Victor Danhi for Defendant and

Respondent.




                                                             1
      Plaintiff and Appellant Tiffini Harrelson entered into a purchase of a car through

Defendant and Respondent CarMax Auto Superstores California, LLC (CarMax).

Harrelson filed a complaint against CarMax claiming that the transaction was conducted

in violation of the Rees-Levering Automobile Sales Finance Act (ASFA) (Civ. Code,

§§ 2981-2984.6) and Civil Code section 1709 and that it also violated the state Unfair

Competition Law (the UCL) (Bus. & Prof. Code, §§ 17200-17210). The trial court

granted CarMax’s demurrer, did not certify the class, and dismissed the action without

leave to amend on the ground it failed to state a cause of action under either ASFA, Civil

Code section 1709, or the UCL.

      Harrelson essentially claims on appeal that the trial court erred by sustaining

CarMax’s demurrer without leave to amend.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

      A.     Complaint

      On April 22, 2011, Harrelson filed her complaint for injunctive relief, restitution,

and damages individually and as a class action against CarMax. She alleged that CarMax

was based in Ontario and that she was a resident of Hesperia in San Bernardino County.

She alleged the action was properly brought as a class action pursuant to Code of Civil

Procedure section 382 and/or Civil Code section 1781, subdivision (a).

      Harrelson declared the first class to be any person who in the four years preceding

the filing of the complaint purchased a car from CarMax, signed a retail installment

contract (RIC), and made a deferred down payment and whose purchase contract did not


                                            2
disclose that some portion of the down payment would be deferred until not later than the

due date of the second regularly scheduled installment under the contract and that was not

subject to a finance charge. A second class consisted of those persons who traded in a

vehicle from which the proceeds would be used to purchase a car from CarMax and

signed a separate vehicle purchase agreement (VPA). Harrelson sought rescission of, and

restitution on, the contracts both individually and for the class.

       On October 13, 2008, Harrelson went to the CarMax store in Ontario to look at a

Saab vehicle she was interested in purchasing. After a test drive, she decided to buy the

vehicle. Harrelson sought to trade in her Honda Civic. She owed about $3,000 more

than the Civic was worth, i.e. she had negative equity on the Civic. She was advised by

CarMax that she would have to make a cash down payment on the Saab. Harrelson

advised the CarMax salesman that she did not have the required down

payment -- $1,100 -- in her bank account but could fund the check in five days. CarMax

agreed to hold the check for five days.

       Harrelson signed the RIC. According to the RIC, the amount financed for the

Saab was $22,197.09, and the monthly payments were $496.79. On the itemization on

the amount financed, CarMax represented that Harrelson had given it a check for

$1,103.33 as a down payment. Harrelson stated (and attached the RIC) that this was false

because she had given a check for $1,100 as a down payment that would not be cashed

until October 18, 2008. The held-check form, dated October 13, 2008, stated that the

check in the amount of $1,100 would be held until October 18 until Harrelson could

transfer funds from a business account. The funds were verified.


                                              3
       The RIC also stated that Harrelson had traded in her Civic. CarMax was paying

her $12,500 for Civic; she owed $15,247.80 on the vehicle. The RIC stated that the

trade-in vehicle, the Civic, was sold to CarMax. The net equity on the trade-in was

negative $1,644.47 and would be part of the amount financed. Harrelson signed a

separate VPA that included language that the sale of the Civic was final and in no way

connected to the purchase of the Saab from CarMax. It also included language that she

was financing the pay-off amount. Harrelson also signed a discharge of lien disclosure

form stating that the negative equity from the sale of her Civic was included in the RIC.

If Harrelson did not buy the Saab, she would owe the balance on the Civic directly to

CarMax.

       Harrelson alleged in her first cause of action that CarMax violated ASFA. She

alleged that the RIC was a conditional sales contract within the meaning of Civil Code

section 2981, subdivision (a). She alleged that CarMax failed to disclose on her RIC that

a portion of the down payment was deferred until after delivery of the vehicle but before

the second installment payment was due and that holding her check was equivalent to a

deferred payment. This conduct violated Civil Code sections 2981.9 (requiring that the

total cost and payment on a motor vehicle be included in one document, the so-called

single document rule), 2982, subdivision (a)(6)(D) (requiring a car dealership to make

disclosures to the consumer, including any payments that are deferred); and 2982,

subdivision (c) (disclosure of deferred down payment).

       The second cause of action alleged that CarMax engaged in unlawful, unfair, or

fraudulent business practices in violation of Business and Professions Code section


                                            4
17200 et seq. Harrelson alleged this cause of action was supported by the violation of

ASFA by failing to properly disclose that she made a deferred payment and that the held-

check form violated the single document rule. She also alleged that CarMax was

engaging in unlawful business acts by improperly completing purchase contracts, failing

to properly disclose deferred down payments on purchase contracts, and failing to

disclose in a single document all of the agreements as to the costs and terms of payment

for the purchase of the vehicles. She claimed this also violated Civil Code section 1709

et seq. Harrelson alleged that she lost money and suffered injury in fact due to the

violations. She sought injunctive relief and restitution.

       The third cause of action alleged another violation of ASFA for the separate VPA,

which violated Civil Code section 2981.9’s single document rule. Despite the VPA

stating it was a separate transaction, the RIC included the trade-in as part of the down

payment on the purchased vehicle. Further, the discharge of lien disclosure agreement

created a separate obligation in regard to the trade-in vehicle if the purchase of the Saab

fell through. The fourth cause of action stated this violation of ASFA also was a

violation of the UCL and also that it was unfair competition and a deceitful business

practice.

       The prayer for relief included certifying the classes; declaratory, equitable, and

injunctive relief; general, special, statutory, and actual damages according to proof;

rescission and/or restitution of all monies required to be expended; incidental and

consequential damages according to proof at trial; and reasonable attorney fees and costs.




                                              5
       B.     Demurrer to Complaint

       CarMax demurred to the complaint. It contended that ASFA was not violated,

and, even if there was noncompliance with ASFA, there was no resulting damage under

either ASFA or the UCL. CarMax averred that held checks were not the equivalent of

“deferred down payments” as described in ASFA. It argued the check was dated the

same date as the sale, it was given to CarMax, and the funds were verified. This was the

equivalent of CarMax not depositing a check on the same day as a purchase. The held-

check form did not change the fact that the check was immediately negotiable; the check

itself would have to refer to the hold.

       As for the violation of the single document rule due to the VPA and discharge of

lien disclosure for the sale of the Civic (the third cause of action), because the complaint

failed to show there were additional agreements as to the cost and terms of payment for

the Saab, it did not violate ASFA. VPA and discharge of lien disclosure related only to

the sale of the Civic. The VPA and RIC were not interrelated, and all the terms for the

sale of the Civic did not need to be included in the RIC.

       Also in the demurrer, CarMax argued that if there was no ASFA claim, then there

would be no UCL claims. Further, Harrelson was unable to show actual injury or

damages, which was required in order to have standing to bring a UCL claim.

       C.     Response to Demurrer

       Harrelson responded that CarMax was precluded from depositing the check until

October 18, 2008, based on the written agreement in which CarMax agreed not to cash

the check. Harrelson denies that the check was negotiable cash. The RIC should not


                                              6
have reflected the check as a cash down payment, but rather a deferred down payment.

This violated the strict requirements of ASFA.

       As for the documents pertaining to the Civic, the trade-in amount was part of the

purchase of the Saab. The VPA and discharge of lien disclosure contain additional and

material terms regarding the trade-in vehicle that was not in the RIC. Harrelson also

claimed that if she stated a cause of action for ASFA claims, the UCL claims were valid.

Also, she had shown an injury in fact because her remedy for the violation of ASFA was

that the contract was unenforceable. Harrelson had been making payments on

unenforceable contracts.

       Harrelson also alleged that even if the ASFA claims did not state a cause of action,

the UCL claims were valid on their own. Harrelson had alleged a violation of Civil Code

section 1709, which was sustained even without the ASFA violations. She insisted that

CarMax deliberately requires a customer to sign documents containing inconsistent terms

regarding trade-in vehicles and hides deferred payments in order to get the customer

financing. She also asked for leave to amend the complaint if there was any confusion as

to the claims.

       D.        Response to Opposition to Demurrer

       CarMax responded that Harrelson could not show damage and that the UCL

requires a monetary loss. CarMax insisted that the RIC included all necessary

disclosures. CarMax only needed to disclose on the RIC a deferred payment, not a hold

on a check. Further, CarMax disclosed all necessary information on the RIC for the

trade-in vehicle. Civil Code section 2981.9 does not require disclosure on a single


                                             7
document of all terms, only those having to do with the terms of payment on the new

vehicle.

       E.     Judgment

       The demurrer was heard on August 1, 2011. The trial court outlined the causes of

action alleged by Harrelson. It stated in its tentative opinion that the complaint “lacks

any meaningful allegations of either deceit or damages.” It also stated that the procedure

involving the held check was the equivalent to actual receipt of cash, i.e., a cash payment,

and not a delayed down payment. There was no misrepresentation regarding the timing

of the payment. Further, it found Harrelson’s argument that the entire VPA had to be

incorporated into the RIC lacked merit. It did not certify the class and granted the

demurrer without leave to amend.

       The trial court signed the judgment on August 4, 2011. A notice of entry of

judgment in favor of CarMax, without leave to amend, was filed on August 12, 2011. On

October 5, 2011, CarMax was awarded attorney fees in the amount of $12,236.50 and

costs in the amount of $395.

       Harrelson filed her notice of appeal from the order granting the demurrer and

dismissing the complaint without leave to amend on August 26, 2011. On December 5,

2011, she filed a notice of appeal from the award of attorney fees and costs. We

consolidated the two appeals.1



       1      On appeal, Harrelson raises no issues as to the trial court’s award of
attorney fees and costs.


                                             8
                                             II

                            TIMELINESS OF ASFA CLAIMS

       We must first address CarMax’s claim -- raised for the first time in this

appeal -- that Harrelson’s causes of action under ASFA (the first and third causes of

action) are time barred.

       CarMax claims that a one-year statute of limitations under Civil Code section 340,

subdivision (a) applies to these claims because the violation was statutory and not

contractual, and rescission of the RIC would be a penalty. According to Harrelson, the

applicable limitations period is four years, pursuant to Code of Civil Procedure section

337, subdivision (3), and California Uniform Commercial Code section 2725.

       A.     Additional Factual Background and Standard of Review

       Harrelson signed the RIC on October 13, 2008. She filed the complaint on April

22, 2011, over two and a half years after she signed the contract. Although CarMax

addresses this issue for the first time on appeal, Harrelson does not dispute that CarMax

can raise the issue. Moreover, it is well established that “‘“[o]n appeal from an order of

dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we

exercise our independent judgment about whether the complaint states a cause of action

as a matter of law.”’ [Citation.] ‘A judgment of dismissal after a demurrer has been

sustained without leave to amend will be affirmed if proper on any grounds stated in the

demurrer, whether or not the court acted on that ground.’ [Citation.] In reviewing the

petition/complaint, ‘we must assume the truth of all facts properly pleaded by the

plaintiffs, as well as those that are judicially noticeable.’ [Citation.]” (San Diego City


                                              9
Firefighters, Local 145 v. Board of Administration, etc. (2012) 206 Cal.App.4th 594,

605-606.) Hence, we can review the statute of limitations issue for the first time on

appeal if it is a valid ground to uphold the demurrer.

       B.     Applicable Provisions of ASFA

       “The Rees–Levering Automobile Sales Finance Act [(Civ. Code, § 2981 et seq.)]

became effective January 1, 1962. The act replaced the 1945 Automobile Sales Act and

was designed to provide a more comprehensive protection for the unsophisticated motor

vehicle consumer.” (Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 69,

fn. omitted.) ASFA serves to protect motor vehicle purchasers from abusive selling

practices and excessive charges by requiring full disclosure of all items of cost. (Pierce

v. Western Surety Co. (2012) 207 Cal.App.4th 83, 91.)

       “Under the ASFA, every conditional sale contract must contain ‘in a single

document all of the agreements of the buyer and seller with respect to the total cost and

the terms of payment for the motor vehicle, including any promissory notes or any other

evidences of indebtedness.’ (§ 2981.9 [the single document rule].) Conditional sale

contracts must also contain all disclosures and notices required under section 2982 . . . .

[¶] Subdivision (a) of section 2982 requires certain disclosures, which must be labeled

‘“itemization of the amount financed,”’ including, among other things, the cash price, the

total cash price (which is the sum of other required disclosures), the amount of any

insurance premiums included in the contract, the amount financed, and ‘[t]he amount of

any administrative finance charge, labeled “prepaid finance charge.”’ [Citation.]”

(Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1000 (Nelson).)


                                             10
       ASFA further provides that “[i]f the seller . . . violates any provision of Section

2981.9 or of subdivision (a), (j), or (k) of Section 2982, the conditional sale contract shall

not be enforceable, except by a bona fide purchaser, assignee or pledgee for value or 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, pursuant to the

terms of the contract, by the buyer to the seller or his assignee.” (Civ. Code, former

§ 2983.)2 Civil Code, former section 2983.1 sets forth the buyer’s choice of remedies if

the contract is unenforceable: “When a conditional sale contract is not enforceable under

Section 2983 or 2983.1, the buyer may elect to retain the motor vehicle and continue the

contract in force or may, with reasonable diligence, elect to rescind the contract and

return the motor vehicle. The value of the motor vehicle so returned shall be credited as

restitution by the buyer without any decrease which results from the passage of time in

the cash price of the motor vehicle as such price appears on the conditional sale contract.”

       C.     Statute of Limitations

       Here, Harrelson claims in her first and third causes of action that CarMax violated

Civil Code sections 2981.9, the single document rule, and 2982, subdivision (a) by failing

to disclose the terms of payment. CarMax, relying primarily on Stone v. James (1956)

142 Cal.App.2d 738, the only case to directly address the statute of limitations period for




       2     ASFA was amended in 2011, effective October 7, 2011. The judgment was
entered on August 11, 2011, so the revisions are not applicable here. In any event, the
quoted portions remained substantially the same.


                                             11
violations of the aforementioned sections, to urge the applicable period is one year,

pursuant to Code of Civil Procedure section 340, subdivision (a).

       Code of Civil Procedure section 340, subdivision (a) provides for a one-year

statute of limitations if it is “[a]n action upon a statute for a penalty or forfeiture . . . .”

Code of Civil Procedure section 337, subdivision (3) provides for a four-year statute of

limitations period for “[a]n action based upon the rescission of a contract in writing.”

California Uniform Commercial Code section 2725 provides a four-year statute of

limitations for an action for breach of any contract involving the sale of goods.

       “[T]he nature of the right sued upon . . . determines the applicability of the statute

of limitations.” (Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 718.) ASFA does

not contain a statute of limitations. (Jack Heskett Lincoln-Mercury, Inc. v. Metcalf

(1984) 158 Cal.App.3d 38, 42 (Heskett).)

       “Under [Civil Code] section 2983, only violations of [Civil Code] section 2981.9,

or subdivisions (a), (j), or (k) of [Civil Code] section 2982, make the contract

unenforceable. The language of these statutes is clear that only the violation of specific

disclosure requirements renders the contract unenforceable.” (Nelson, supra, 186

Cal.App.4th at p. 1001.) “The ‘“settled rule”’ in California is that statutes which provide

for damages that are in ‘“addition[] to actual losses incurred”’ [citation], or ‘not based

upon actual injury’ [citation], are generally ‘“considered penal in nature [citations], and

thus governed by the one-year period of limitations stated in section 340, subdivision

(1).” [Citation.]’ [Citation.] However, Code of Civil Procedure section 340 does not




                                                12
apply if the award of a penalty is discretionary, rather than mandatory.” (Hypertouch,

Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 842.)3

       Here the contact in question was the RIC signed by both Harrelson and CarMax.

The RIC itself imposed no obligation to properly identify the down payment. The RIC

did not require that the terms of payment of the Saab all be included in the RIC. There

was no violation of the contract in this case. The only violation was that the RIC violated

ASFA provisions regarding disclosure and the single document rule, a purely statutory

violation.

       Moreover, Harrelson suffered no harm as a result of the held-check form.

Harrelson still paid the down payment with a check, which the parties agreed would not

be cashed for five days. As for the separate VPA and discharge of lien disclosure, she

suffered no harm. She traded in her Civic, she received a payment on the Civic, and the

remainder she owed on the car was rolled into the purchase of the Saab. Harrelson’s

claims are based purely on the statutory violation of ASFA.

       Nonetheless, under Civil Code sections 2982 and 2983, she would be entitled to a

refund of all the sums that she expended on the Saab, subject to a limited discretionary

offset for having used the car for over two and a half years. (Nelson, supra, 186

Cal.App.4th at pp. 1012-1013.) Since there was no actual injury, this recovery and right

of rescission constituted a penalty under Code of Civil Procedure section 340,

subdivision (a). As stated, generally, the one-year statute of limitations for an action

       3     In 2002, subdivisions (1) through (5) of Code of Civil Procedure section
340 were redesignated as (a) through (e). (Stats. 2002, ch. 448, § 3, pp. 2522-2523.)


                                             13
upon a statute for a penalty applies if the civil penalty is mandatory. (Hypertouch, Inc. v.

ValueClick, Inc., supra, 192 Cal.App.4th at p. 842.) Here, if Harrelson could prove a

violation in the single document rule or the disclosures, she was entitled to rescission of

the RIC.

       Stone correctly held that the statutory predecessor of current Civil Code section

2983 created a statutory liability for a penalty and was governed by Code of Civil

Procedure section 340, subdivision (a)’s one-year limitations period. (Stone v. James,

supra, 152 Cal.App.2d at pp. 738-740.)

       Although Stone is the only case that has addressed that the rescission remedy of

ASFA is penal in nature and based on statutory violation, other cases have addressed

statutes that are similar in language to the provision in ASFA. In Goehring v. Chapman

University (2004) 121 Cal.App.4th 353, 387, that court interpreted Business and

Professions Code section 6061, which requires an unaccredited law school to provide its

students a disclosure statement with information about the school. If it fails to do so, it

must refund to its students all fees they paid. (Id. at pp. 377-378.) The Goehring court

concluded that this was a statute creating a claim for a penalty. “We conclude the general

purpose of the refund provision of 6061 is penal in nature, as actual damage is not an

element of the claim. Rather, to obtain a refund of tuition a plaintiff need only show the

law school did not timely comply with disclosure requirements. Contrary to plaintiffs’

position, the payment of tuition, standing alone, does not constitute actual damage. For

instance, here the jury found that plaintiffs were not damaged by paying tuition to [the

law school], and thus without section 6061 they would have no ground for the recovery


                                             14
of tuition. Moreover, the refund of fees is mandatory, and ‘[g]enerally, [Code of Civil

Procedure] section 340, subdivision (a) applies if a civil penalty is mandatory.’

[Citation.]” (Id at p. 387.) As in Goehring, here the nature of the action was failure to

disclose -- a violation of a statute and not a written contract -- and rescission is

mandatory.

       Harrelson contends that since there were major amendments to ASFA in 1961,

after Stone was decided, its findings are no longer applicable.

       “The version of the Automobile Sales Financing Act in effect in the mid-

1950’s . . . required only the following minimal detail about the down payment: ‘“1. The

cash price of the personal property described in the conditional sale contract. [¶] 2. The

amount of the buyer’s down payment, and whether made in cash or represented by the net

agreed value of described property traded in, or both, together with a statement of the

respective amounts credited for cash and for such property. . . . [¶] 3. The amount

unpaid on the cash price, which is the difference between Items 1 and 2.”’ [Citation.]”

(Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997, 1003-1004.)

       However, at the time Stone was decided, the remedy for a violation of the

disclosure requirements stated as follows: “(e) If the seller, except as the result of an

accidental or bona fide error in computation, shall violate any provision of subdivisions

(c), or (d) of this section the conditional sale contract shall not be enforceable, except by

a bona fide purchaser for value, and the buyer may recover from the seller in a civil

action the total amount paid on the contract balance by the buyer to the seller or his

assignee pursuant to the terms of such contract.” (Civil Code, former § 2982, added by


                                              15
Stats. 1945 ch. 1030 § 2, pp. 1992-1993, as amended by Stats. 1949, ch. 1594, § 1, p.

2843.)

         The amended version of the applicable remedy provisions is identical. We have

set forth Civil Code sections 2983 and 2983.1, ante. Despite changes to the disclosure

requirements of ASFA, the remedy of rescission has remained the same. Thus, Stone

correctly held that the statutory predecessor of current section 2983 created a statutory

liability for a penalty and was governed by Code of Civil Procedure section 340,

subdivision (a)’s one-year limitations period. While the 1961 changes did expand ASFA

in many respects, it did not alter ASFA’s rescission remedy.

         Harrelson also relies upon Heskett to support her claim that the statute of

limitations in this case is four years. Heskett was a car dealer’s suit for a deficiency

against a defaulting buyer, i.e., it was a suit to enforce the buyer’s contractual promise to

pay, not a claim for rescission or a statutory claim. (Heskett, supra, 158 Cal.App.3d at p.

40.) The court concluded the four-year limitation under Code of Civil Procedure section

337 and California Uniform Commercial Code section 2725 was applicable because the

action was based on the written contractual violation. Even the case itself distinguished

Stone on this very ground, wherein Stone involved a remedy that was a penalty or

forfeiture. (Heskett, at pp. 41-43.) Here, Harrelson’s claims enforce statutory obligations

(Civ. Code, §§ 2982, subd. (a)(6), 2981.9) and seek a statutory remedy (Civ. Code, §§

2983, 2983.1). Heskett does not address the limitations period applicable in this case.

         Contrary to Harrelson’s argument, Nelson does not resolve the issue in her favor.

Nelson only noted that Pearson Ford raised the statute of limitations, but it found the


                                              16
issue was moot. It held, “Finally, to avoid liability to the insurance class under the

ASFA, Pearson Ford argues that if the monetary award to the insurance class under the

ASFA is correct, then, as a matter of law, the one-year statute of limitations for actions

on a statute imposing a forfeiture barred Nelson’s ASFA claims. (Code Civ. Proc, § 340,

subd. (a).) This contingent argument is moot based on our conclusion that the trial court

imposed an improper remedy for Pearson Ford’s violations of the ASFA as to the

insurance class.” (Nelson, supra, 186 Cal.App.4th at p. 1007.) Nelson makes no finding

as to whether rescission involves a penalty or forfeiture under ASFA.

       Based on the foregoing, Harrelson’s first and third causes of action failed to state a

claim because they were barred by the one-year statute of limitations in section 340,

subdivision (a). At the time that Harrelson signed the RIC, on October 13, 2008, she was

aware of the alleged violations of ASFA. However, she waited over two and a half years

(and until the Saab began having mechanical problems) to file suit here. Harrelson can

express no injury under ASFA. Nonetheless, if she could prove a technical violation, she

could seek rescission of the contract and return the Saab, minus any offset amount for her

use of the car. The rescission afforded by ASFA is clearly a penalty, and hence

Harrelson needed to file her complaint within the one-year period. Harrelson could only

go forward on her second and fourth causes of action, alleging violations of the UCL,

which carries a four-year statute of limitations. (Bus. & Prof. Code, § 17208; Cortez v.

Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179.)




                                             17
                                              III

                                    THE UCL CLAIMS

       Even though we find that Harrelson’s claims under ASFA are time barred, she has

asserted in the second and fourth causes of action that the actions of CarMax violated the

UCL. In addition to claiming that the violation of ASFA created unfair competition, a

violation of the UCL, she also cited to Civil Code section 1709 and asserted that CarMax

engaged in fraudulent business practices by failing to disclose material facts.

       “A UCL claim will survive a demurrer if the plaintiff can plead ‘“general factual

allegations of injury resulting from the defendant’s conduct.”’ [Citation.]” (Jenkins v. JP

Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 521.) “‘Unfair competition’

includes ‘any unlawful, unfair or fraudulent business act or practice . . . .’” (Id. at

p. 520.)

       A private action for relief under the UCL can be brought only “by a person who

has suffered injury in fact and has lost money or property as a result of the unfair

competition.” (Bus. & Prof. Code, § 17204.) In 2004, Proposition 64 established a new

requirement for standing under the UCL. Under the narrower standing requirements

imposed by Proposition 64, a party must now “(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.” (Kwikset Corp. v.

Superior Court (2011) 51 Cal.4th 310, 322.)




                                              18
        “To aid lower courts with determining whether a plaintiff has properly alleged an

economic injury under Business and Professions Code section 17204, the Kwikset Corp.

court listed four injuries that would certainly qualify under the statute: (1) the plaintiff

surrendering more or acquiring less in a transaction than the plaintiff otherwise would

have; (2) the plaintiff suffering the diminishment of a present or future property interest;

(3) the plaintiff being deprived of money or property to which the plaintiff has a

cognizable claim; or (4) the plaintiff being required to enter into a transaction, costing

money or property, that would otherwise have been unnecessary. [Citation.] These four

injuries are not ‘an exhaustive list’ of the injuries a plaintiff may allege to properly plead

an economic injury under Business and Professions Code section 17204, and ‘the

quantum of lost money or property necessary to show standing is only so much as would

suffice to establish injury in fact . . . .’ [Citation.]” (Jenkins v. JP Morgan Chase Bank,

N.A., supra, 216 Cal.App.4th at p. 522.)

        Harrelson presented no evidence in the complaint that she lost money or property

as a result of the unfair competition. Harrelson’s claims of injury are all speculative. She

claims she was making payments on an unenforceable contract. However, she has no

grounds for claiming that it was unenforceable under ASFA. Further, she claims that she

was burdened by buying a car that she could not afford. However, she makes no

explanation (and we can think of none) that shows how the deal presented by CarMax

induced her into buying the Saab. She agreed to the trade-in amount and the price of the

Saab.




                                              19
       Further, Harrelson concedes that CarMax waited to cash her check until October

18, 2008, as agreed. Further, CarMax purchased her Civic, she received the agreed-upon

amount for it, and the remainder was financed. Even if the VPA and discharge of lien

disclosure had been on the same document as the RIC, the terms of the agreement would

be the same, and the amount that she would owe to CarMax would remain the same.

       Harrelson has failed to point to any evidence of injury supporting the complaint’s

allegations. The complaint relied significantly on ASFA violations and the fact that this

constituted unfair competition. She completely failed to establish how the UCL violation

on its own resulted in unfair competition, was deceitful, or was fraudulent. The contents

of the RIC, the VPA, and discharge of lien disclosure set forth the terms of the agreement

between Harrelson and CarMax regarding the sale of the Civic and the purchase of the

Saab. She never alleged that she lost money or property as a result of the alleged

wrongdoing by CarMax. Therefore, Harrelson has not demonstrated the standing

necessary to pursue and prevail on any of the causes of action in the complaint brought

under the UCL in her complaint.

       However, “‘[i]f the court sustained the demurrer without leave to amend, as here,

we must decide whether there is a reasonable possibility the plaintiff could cure the

defect with an amendment. [Citation.] If we find that an amendment could cure the

defect, we conclude that the trial court abused its discretion and we reverse; if not, no

abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that

an amendment would cure the defect. [Citation.]’ [Citation.] ‘[S]uch a showing can be

made for the first time to the reviewing court [citation] . . . .’” (San Diego City


                                             20
Firefighters, Local 145 v. Board of Administration, etc., supra, 206 Cal.App.4th at pp.

605-606.)

       Harrelson would have to show that she can plead facts indicating a causal link

between her economic injury and CarMax’s actions. In other words, Harrelson would

have to amend her second and fourth causes of action to show she suffered her economic

injury “‘as a result of the defendant’s unfair business practices.’” (Kwikset Corp. v.

Superior Court, supra, 51 Cal.4th at p. 32; see also Campbell v. Regents of University of

California (2005) 35 Cal.4th 311, 320 [“[t]he plaintiff has the burden of proving that an

amendment would cure the defect”].

       Harrelson claims for the first time on appeal that she would not have traded in her

Civic if she knew “trading-in her Civic was not part and parcel of the transaction.” She

also claims she would not have paid for the product except for the misrepresentation.

Harrelson cannot truthfully allege such a claim. Any claim that she would not have

purchased the Saab and sold the Civic would be based solely on her own allegations.

Moreover, we find nothing at all that made this transaction deceitful or unfair. The terms

of the sale of the Civic were set out in the RIC, VPA, and discharge of lien disclosure,

and all of the terms of payment on the purchase of the Saab were detailed in the RIC. We

find nothing in them supporting any kind of fraud or deceit.

       Harrelson also alleged that there was a violation of Civil Code section 1709. “One

who willfully deceives another with intent to induce him to alter his position to his injury

or risk, is liable for any damage which he thereby suffers.” (Civ. Code, § 1709.) “A

deceit, within the meaning of the last section, is either: [¶] 1. The suggestion, as a fact,


                                             21
of that which is not true, by one who does not believe it to be true; [¶] 2. The assertion,

as a fact, of that which is not true, by one who has no reasonable ground for believing it

to be true; [¶] 3. The suppression of a fact, by one who is bound to disclose it, or who

gives information of other facts which are likely to mislead for want of communication of

that fact; or, [¶] 4. A promise, made without any intention of performing it.” (Civ.

Code, § 1710.)

       There is no violation of Civil Code section 1709. As stated, Harrelson was

advised of all of the terms and conditions pertaining to the sale of the Civic and the

purchase of the Saab. She agreed that if she purchased the Saab, she would finance the

negative equity. The documents clearly disclosed that she was obligated to sell the Civic

regardless of the purchase of the Saab and was responsible for the payment of the

negative equity. There was nothing deceiving in the documents signed by Harrelson.

CarMax followed through with the promises made in the documents. Harrelson

understood and agreed to both the held-check form and the terms of her Civic trade-in.

       Harrelson contends that she could amend to allege a separate and distinct violation

of the Consumer Legal Remedies Act (CLRA). “The CLRA ‘“‘established a

nonexclusive statutory remedy for “unfair methods of competition and unfair or

deceptive acts or practices undertaken by any person in a transaction intended to result or

which results in the sale or lease of goods or services to any consumer.”’”’ [Citation.]

The purposes of the act are ‘to protect consumers against unfair and deceptive business

practices and to provide efficient and economical procedures to secure such protection.’

[Citation.]” (Pierce v. Western Surety Co., supra, 207 Cal.App.4th at p. 91.) She claims


                                             22
that there were inconsistencies in the documents as the RIC called the Civic a “trade-in”

while the VPA said the Civic was sold to CarMax. However, both the RIC and VPA

make it clear that she is selling the car to CarMax. In financing the negative equity, she

would use the proceeds as a “trade-in” for the Saab purchase and pay off the negative

equity in the payments. Nothing about this transaction is deceitful or confusing. Further,

she cannot claim that there were inconsistencies if she did not buy the Saab, as this

scenario did not occur.

       Finally, Harrelson claims that she could amend to show “garden variety fraud”

based on inconsistent statements and falsehoods. However, we have found no

inconsistent statements or falsehoods in the sale of the Civic and purchase of the Saab.

No claim of fraud can be made on these grounds.

       Harrelson has failed to show she has standing to bring a UCL claim. She has

shown no injury in fact. Moreover, any attempt to amend the complaint to show a

violation of the UCL, or alleged causes of action under CLRA, would not be successful.

Harrelson cannot show that a violation of ASFA occurred as she filed her complaint after

the one-year period of limitations had expired. Other than alleged technical violations of

ASFA (which are time barred), Harrelson cannot show any injury. CarMax held her

check for five days, she received financing, and she sold her Civic for the amount she

agreed and received financing on the negative equity. Any possible speculative injury

had the deal not gone through simply cannot support the action. As such, we find that the

trial court properly granted CarMax’s demurrer without leave to amend.




                                            23
                                           IV

                                     DISPOSITION

       We affirm the trial court’s order granting the demurrer without leave to amend.

CarMax is awarded its costs on appeal.

                                                       RICHLI
                                                                            Acting P. J.

We concur:

KING
                                J.

CODRINGTON
                                J.




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