Filed 9/11/18 (mod.); pub. order 9/12/18 follows unmodified opinion (attached)




    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT

CHRISTOPHER VASQUEZ,                                           B280152

        Plaintiff and Respondent,                              (Los Angeles County
                                                                Super. Ct. No. BC555976)
        v.
                                                               ORDER MODIFYING OPINION
SOLO 1 KUSTOMS, INC.,

        Defendant and Appellant.                                [No change in the judgment]




        IT IS ORDERED that the opinion filed in the above-captioned
matter on August 15, 2018, be modified as follows:
        1. On page 4, line 21, after the sentence “The trial court granted
nonsuit and a directed verdict in Defendants’ favor as to all claims except
those against SOLO for violation of the Automotive Repair Act,
conversion, and violation of the Consumer Legal Remedies Act (CLRA),”
insert the following:
        “After considering the parties’ closing arguments, the court
concluded that SOLO performed the repair work without authorization,
which constituted a violation of section 9884.9 of the Automotive Repair
Act. The court further concluded that SOLO had not converted Vasquez’s
property or violated the CLRA. The court remarked that if there is no
private cause of action under the Automotive Repair Act, judgment would
have been entirely in Defendants’ favor.”
        2. On page 4 and continuing onto page 5, delete the entire paragraph
that begins with the sentence, “The parties submitted their closing
arguments in writing, after which the court issued an oral tentative
statement of decision.”
        3.   On page 5, delete the entire paragraph that begins with the
sentence, “After issuing its tentative decision, SOLO objected on the basis
that there is no private cause of action under the Automotive Repair Act.”
        4. On page 5 and continuing onto page 6, delete the entire paragraph
that begins with the sentence, “At the hearing to consider Vasquez’s
objection, the court noted that the Harris opinion is unclear as to whether
the case involved a cause of action for a violation of the Automotive Repair
Act.”


        This modification affects no change in the judgment.




____________________________________________________________
BIGELOW, P.J.                    GRIMES, J.              GOODMAN, J.*


*
       Retired Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.



                                      2
Filed 8/15/18 (unmodified version)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT

CHRISTOPHER VASQUEZ,                           B280152

       Plaintiff and Respondent,               (Los Angeles County
                                               Super. Ct. No. BC555976)
       v.

SOLO 1 KUSTOMS, INC.,

       Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of Los
Angeles County. Terry A. Green, Judge. Reversed.
     Romero Law and Alan J. Romero for Plaintiff and
Respondent.
     Morris & Stone and Aaron P. Morris for Defendant and
Appellant.

                      _____________________________
        Defendant SOLO 1 Kustoms, Inc. (SOLO) appeals a
judgment in favor of plaintiff Christopher Vasquez. After a bench
trial, the court found SOLO liable for performing unauthorized
repair work on Vasquez’s car in violation of Business and
Professions Code section 9884.9, and awarded Vasquez $12,000
in damages. On appeal, SOLO contends there is no private cause
of action for violation of Business and Professions Code section
9884.9. We agree and reverse the judgment.
        FACTUAL AND PROCEDURAL BACKGROUND
        Complaint
        In the operative first amended complaint, Vasquez alleged
that SOLO and its owner, defendant Jose Hernandez, (together,
Defendants), performed unauthorized repair work on his car,
demanded payment for the repairs, and sold the car at a lien sale
when Vasquez refused to pay. Vasquez asserted claims for
violation of the Automotive Repair Act (Bus. & Prof. Code, § 9880
et seq.)1, violation of the Consumer Legal Remedies Act (Civ.
Code, § 1770 et seq.), breach of contract, breach of the covenant of
good faith and fair dealing, conversion, intentional and negligent
misrepresentations, and violation of Penal Code section 496.
        Trial
        The court held a bench trial over the course of two days,
during which the parties presented contradictory versions of the
relevant events. Vasquez testified that he was involved in a car
accident, which caused his car’s side airbags to deploy and
damaged the bumper. Vasquez received an estimate for repair
work from a shop affiliated with his insurance company, but he

1    All undesignated statutory citations are to the Business
and Professions Code unless noted otherwise.




                                 2
decided to take his car to SOLO to get a second opinion. Vasquez
agreed to leave the car at SOLO overnight so that Hernandez
could perform a thorough inspection before preparing an estimate
for the repairs.
       Vasquez was not pleased with the estimated cost of repairs
at SOLO and decided to pick up his vehicle. When Vasquez went
to retrieve the car, however, he saw that much of the interior had
been ripped out. Hernandez refused to allow Vasquez to take the
car without paying for the teardown. Over the next few weeks,
Vasquez had as many as 10 conversations with Hernandez about
returning his car, but Hernandez continued to demand payment.
       At some point, Vasquez filed a complaint with the Bureau
of Automotive Repair (Bureau). A Bureau representative
contacted Vasquez and informed him he could pick up his car free
of charge, but he would need to sign a waiver. Vasquez did not
know the terms of the waiver, but he did not want to sign one
because he did not trust the Bureau representative. As a result,
Vasquez did not attempt to reclaim his car, and it was eventually
sold at a lien sale.
       Vasquez believed his car was worth approximately $12,000
at the time he dropped it off at SOLO, but he still owed about
$24,000 on his car loan. For two months, Vasquez rented a car to
get to and from work, which cost approximately $2,000. He also
relied on other people to drive him to work, and he was often late
as a result. Vasquez eventually lost his job due to tardiness.
       Hernandez testified to a much different version of events.
According to Hernandez, he agreed to honor the estimate from
the repair shop affiliated with Vasquez’s insurance company.
After doing so, Hernandez received explicit authorization from
Vasquez and his insurance company to begin work on the vehicle.




                                3
At Vasquez’s request, Hernandez began the work immediately,
and he ordered parts costing around $3,000. A few days later,
Vasquez demanded Hernandez return his car. Hernandez,
however, refused to return the car without payment for the work
that had already been done.
       About a month after the dispute arose, Hernandez met
with the Bureau representative, who convinced him to release the
car without charge. Thereafter, a SOLO employee called Vasquez
several times informing him he could pick up the car without
charge. Hernandez did not insist that Vasquez sign a waiver.
       Vasquez did not respond to the calls, and Hernandez
mailed Vasquez a letter notifying him that if he did not retrieve
his car, it would be considered abandoned. The car remained at
SOLO for approximately six or seven months. Hernandez
eventually hired a company to conduct a lien sale, which was
executed lawfully. The car was sold for $4,000.2
       Trial Court Decision
       The trial court granted nonsuit and a directed verdict in
Defendants’ favor as to all claims except those against SOLO for
violation of the Automotive Repair Act, conversion, and violation
of the Consumer Legal Remedies Act (CLRA).
       The parties submitted their closing arguments in writing,
after which the court issued an oral tentative statement of
decision. The court began by noting that both Vasquez and
Hernandez were credible witnesses. In the court’s opinion, the
parties simply viewed the facts in a different light, which led to a
misunderstanding as to whether Vasquez had given
authorization for the repair work. The court acknowledged that

2     Prior to selling the car, Hernandez installed the parts he
ordered for the repairs.



                                 4
authorization can be oral, but felt SOLO should have the “burden
of producing a writing to make sure we never have these
misunderstandings.” Because SOLO could not produce such a
writing, the court concluded it performed the repair work without
authorization, which constituted a violation of section 9884.9 of
the Automotive Repair Act. The court further concluded that
SOLO had not converted Vasquez’s property or violated the
CLRA.
       The court determined Vasquez’s total damages from
SOLO’s violation of section 9884.9 were $24,000, which
represented the remaining balance of his car loan.3 The court,
however, reduced SOLO’s liability to $12,000 because Vasquez
failed to mitigate his damages by picking up his car free of
charge.
       After issuing its tentative decision, SOLO objected on the
basis that there is no private cause of action under the
Automotive Repair Act.4 The court took a brief recess to consider
the issue, after which it decided to enter judgment for SOLO.
Defendants prepared a proposed judgment, to which Vasquez
objected on the ground that there is a private cause of action
under the Automotive Repair Act. In support, Vasquez cited
Harris v. Dixon Cadillac Co. (1982) 132 Cal.App.3d 485 (Harris).
       At the hearing to consider Vasquez’s objection, the court
noted that the Harris opinion is unclear as to whether the case
involved a cause of action for a violation of the Automotive Repair

3      The court did not include in the measure of damages the
cost of rental cars or the harm of Vasquez losing his job, noting
that such damages were too attenuated.

4        Defendants had previously raised the issue in their trial
brief.



                                   5
Act. To gain some clarity on the issue, the court contacted
counsel in the Harris case, who reported that the plaintiff had
pleaded such a claim. Based on this representation, the court
concluded there is a private cause of action for violation of section
9884.9. The court reasoned: “I find it hard to believe that the
Court of Appeal would do a published opinion discussing lots of
matters but not discussing the fact that there was no private
right of action or in fact that was their opinion that there was no
cause of action. I can only assume that the Court of Appeal
would never mislead us.” The court remarked that if there is no
private cause of action under the Automotive Repair Act,
judgment would have been entirely in Defendants’ favor.
      The court entered judgment against SOLO and in favor of
Vasquez for $12,000. SOLO timely appealed.
                            DISCUSSION
      SOLO contends the judgment must be reversed because
there is no private cause of action for violation of section 9884.9.5

5      Vasquez urges us not to consider SOLO’s argument because
it was raised for the first time after trial. Initially, Vasquez’s
assertion is factually inaccurate; SOLO argued in its trial brief,
which it filed the first day of trial, that there is no private cause
of action under the Automotive Repair Act.
       Moreover, Vasquez’s reliance on Nelson v. Dept. Alcoholic
Bev. Control (1959) 166 Cal.App.2d 783, is misplaced. In that
case, the court declined to consider, in connection with an appeal
of a post-trial judgment, the appellant’s argument that the
respondent failed to plead sufficient facts supporting an element
of a certain cause of action. (Id. at pp. 787–788.) The court
reasoned that the requisite facts were implicitly pleaded, the
appellant did not appear misled or prejudiced by the deficiency,
and the case was tried on the assumption that the respondent
had sufficiently pleaded the cause of action. (Ibid.)



                                  6
We agree.6
       A.    Legal Principles
       “A violation of a state statute does not necessarily give rise
to a private cause of action. [Citation.] Instead, whether a party
has a right to sue depends on whether the Legislature has
‘manifested an intent to create such a private cause of action’
under the statute. [Citations.]” (Lu v. Hawaiian Gardens
Casino, Inc. (2010) 50 Cal.4th 592, 596 (Lu); see Moradi-Shalal v.
Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 305
(Moradi-Shalal).) “If the Legislature intended a private right of
action, that usually ends the inquiry. If the Legislature intended
there be no private right of action, that usually ends the inquiry.
If we determine the Legislature expressed no intent on the
matter either way, directly or impliedly, there is no private right
of action.” (Animal Legal Defense Fund v. Mendes (2008) 160
Cal.App.4th 136, 142; see Moradi-Shalal, supra, 46 Cal.3d at
p. 305; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54
Cal.App.4th 121, 132 (Crusader).)



       Here, in contrast, the issue is not whether Vasquez pleaded
all the elements of a cause of action for violation of section
9884.9. Rather, it is whether there is even a private cause of
action for violation of section 9884.9. As Vasquez acknowledges,
“the issue of whether a cause of action is stated is not waived by
the failure to raise it in the trial court, and it may be raised for
the first time on appeal.” (Cedars-Sinai Medical Center v.
Superior Court (1998) 18 Cal.4th 1, 7, fn. 2; see Code Civ. Proc.,
§ 430.80, subd. (a).)

6     Vasquez argued in his respondent’s brief that there is a
private case of action for violation of section 9884.9. At oral
argument, however, he essentially conceded the issue.



                                  7
       The Legislature’s intention to create a private cause of
action must be expressly stated or strongly implied in the
statutory language or legislative history. (Lu, supra, 50 Cal.4th
at p. 596; Farmers Ins. Exchange v. Superior Court (2006) 137
Cal.App.4th 842, 850.) A statute, for example, “may expressly
state that a person has or is liable for a cause of action for a
particular violation. (See, e.g., Civ. Code, § 51.9 [‘A person is
liable in a cause of action for sexual harassment’ when a plaintiff
proves certain elements]; Health & Saf. Code, § 1285, subd. (c)
[‘Any person who is detained in a health facility solely for the
nonpayment of a bill has a cause of action against the health
facility for the detention . . . .’].)” (Lu, supra, 50 Cal.4th at
p. 597.) Alternatively, the statute “may refer to a remedy or
means of enforcing its substantive provisions, i.e., by way of an
action. (See, e.g., [Lab. Code] § 218 [‘Nothing in this article shall
limit the right of any wage claimant to sue directly or through an
assignee for any wages or penalty due him under this article’];
Bus. & Prof. Code, § 17070 [‘Any person . . . may bring an action
to enjoin and restrain any violation of this chapter and, in
addition thereto, for the recovery of damages’]; id., § 6175.4, subd.
(a) [‘A client who suffers any damage as the result of a violation
of this article by any lawyer may bring an action against that
person to recover or obtain one or more of the following
remedies’]; Civ. Code, § 1748.7, subd. (d) [‘Any person injured by
a violation of this section may bring an action for the recovery of
damages, equitable relief, and reasonable attorney’s fees and
costs’]; see Crusader, supra, 54 Cal.App.4th at p. 136 [listing
other statutes expressly creating cause of action].)” (Lu, supra,
50 Cal.4th at p. 597, fn. omitted.) If the statutory language is
ambiguous, resort to the legislative history is necessary. (Noe v.




                                 8
Superior Court (2015) 237 Cal.App.4th 316, 340, fn. 14; see
Lu, supra, 50 Cal.4th at p. 597.)
       Whether a statute creates a private cause of action is a
question of law, and we exercise our independent judgment in
resolving the issue. (Shamsian v. Department of Conservation
(2006) 136 Cal.App.4th 621, 631.)
       B.    The Automotive Repair Act
       Section 9884.9 is part of the Automotive Repair Act,
which is a comprehensive statutory scheme regulating
automotive repair dealers.7 The Automotive Repair Act was
enacted in 1971 in response to widespread fraudulent practices in
the automotive repair industry.8 (Dept. Consumer Affairs Bill
Analysis of Sen. Bill No. 51 (1971 Reg. Sess.) as amended May 10,
1971.) Its purpose is to “ ‘foster fair dealing, [and] to eliminate
misunderstandings’ [citation] in transactions involving
automotive repairs.” (Parada v. Small Claims Court (1977)
70 Cal.App.3d 766, 768–769.)
       The Automotive Repair Act contains various provisions
regulating dealers’ interactions with customers. (See, e.g.,
§§ 9884.8, 9884.9, 9884.10.) Section 9884.9, in particular,
provides that an automotive repair dealer “shall give to the
customer a written estimated price for labor and parts necessary
for a specific job. No work shall be done and no charges shall

7    An automotive repair dealer is a “person who, for
compensation, engages in the business of repairing or diagnosing
malfunctions in motor vehicles.” (§ 9880.1, subd. (a).)

8     The Legislature has amended the Automotive Repair Act,
including section 9884.9, numerous times since it was originally
enacted in 1971. We do not discuss the specific amendments
because they are not relevant to the issues before us.



                                9
accrue before authorization to proceed is obtained from the
customer.” (§ 9884.9, subd. (a).) The statute further specifies the
information that must be contained in the written estimate, who
may give authorization to perform the work, and the steps the
dealer must take if the estimated price is insufficient.
(Id., subds. (a)–(d).)
       The Automotive Repair Act created within the Department
of Consumer Affairs the Bureau of Automotive Repair. (§ 9882,
subd. (a).) Automotive repair dealers are required to register
with the Bureau. (§§ 9884.2, 9884.6, subd. (a).) Failure to
register is a misdemeanor (§ 9889.20), and unregistered dealers
are precluded from suing on a contract for vehicle repairs
(§ 9884.16).
       In addition to overseeing dealer registration, the Bureau is
responsible for enforcement of the Automotive Repair Act.9
(§ 9882, subd. (a).) To fulfill this duty, the Bureau is authorized
to investigate, on its own initiative or in response to complaints,
violations of the act. (§ 9882.5.) To that end, the Bureau is
required to establish procedures for accepting complaints from
the public against any dealer. (Ibid.) When a dealer is alleged to
have committed a violation, the Bureau may suggest measures to
compensate for any damages suffered. (Ibid.) If the dealer
“accepts the suggestions and performs accordingly, such fact shall
be given due consideration in any subsequent disciplinary

9      Many of these powers and responsibilities are vested in the
director of the Department of Consumer Affairs, rather than
directly in the Bureau of Automotive Repair. (See, e.g.,
§§ 9882.5, 9884.7, 9884.15, 9884.22.) The distinction is
immaterial for our purposes, and for the sake of simplicity, we
refer to the powers and responsibilities as belonging to the
Bureau.



                                10
proceeding.” (Ibid.)
       The Bureau is also authorized to pursue criminal, civil, and
administrative penalties and remedies in response to violations of
the act. It is a misdemeanor to violate many provisions of the
act, including section 9884.9, and the Bureau is authorized to file
charges with a district or city attorney. (§§ 9884.15, 9889.20.)
The Bureau may also seek in the superior court an injunction or
other appropriate order restraining the dealer from committing
violations. (§ 9884.14.) In addition, the Bureau may issue a
citation, and suspend or revoke the dealer’s registration.
(§§ 9882, subd. (a), 9884.7, subd. (a)(6), 9884.22.)
       C.    There is No Private Cause of Action For
             Violation of Section 9884.9
       The trial court entered judgment in favor of Vasquez based
entirely on its finding that SOLO violated section 9884.9 by
performing unauthorized repair work on Vasquez’s car. Section
9884.9 does not, however, contain any language “strongly and
directly indicat[ing] that the Legislature intended to create a
private cause of action.” (Lu, supra, 50 Cal.4th at p. 597.) In
fact, the statute is entirely silent on the issue of enforcement.
       Nor is there language in other sections of the Automotive
Repair Act to even suggest an intent to create a private cause of
action, despite the fact that the Legislature certainly knew how
to do so. Indeed, thirty years before enacting the Automotive
Repair Act, the Legislature enacted the Unfair Practices Act,
which enumerates various prohibited trade practices and
provides that “[a]ny person or trade association may bring an
action to enjoin and restrain any violation of this chapter and, in
addition thereto, for the recovery of damages.” (§ 17070.)
No comparable language appears anywhere in the Automotive




                                11
Repair Act. Given the complete lack of statutory language
manifesting a Legislative intent to create a private cause of
action, we conclude there is no private cause of action for
violation of section 9884.9.10
       Our conclusion finds further support in the fact that,
in stark contrast to the complete lack of statutory language
manifesting an intent to create a private cause of action, the
Legislature expressly provided numerous mechanisms for the
Bureau of Automotive Repair to enforce section 9884.9. Indeed,
the Legislature gave the Bureau broad authority to investigate
violations and pursue criminal, civil, and administrative
penalties and remedies in response. (See, e.g., §§ 9884.7, subd.
(a)(6), 9884.14, 9884.15, 9889.20.) The fact that the Legislature
created such a comprehensive enforcement scheme without
expressly providing for a private cause of action is a strong
indication that it did not intend to create one. (Animal Legal
Defense Fund v. Mendes, supra,160 Cal.App.4th at p. 144;
Farmers Ins. Exchange v. Superior Court, supra, 137 Cal.App.4th
at pp. 850, 855.)
       We also do not think a private cause of action is necessary
to protect customers. A dealer who violates section 9884.9 may
not charge the customer or recover its costs for any work done,
which in many cases will ensure the violation causes no harm to
the customer. (§ 9884.9, subd. (a); see Hibbs v. Allstate Ins. Co.

10     Because there is no statutory language that could be
reasonably interpreted as expressing an intent to create a private
cause of action, we need not resort to the legislative history.
(Noe v. Superior Court, supra, 237 Cal.App.4th at p. 340, fn. 14.)
Nevertheless, we note that Vasquez fails to point to any
legislative history manifesting such an intent, and we have found
none in our own research.



                                12
(2011) 193 Cal.App.4th 809, 817 [a dealer “who fails to comply
with section 9884.9 may not recover under any theory”]; Bennett
v. Hayes (1975) 53 Cal.App.3d 700, 704 [refusing to grant
equitable relief to dealer who violated section 9884.9].) In the
event the dealer refuses to release a vehicle without payment, the
customer may file a complaint with the Bureau of Automotive
Repair, which has the authority to mediate disputes and pursue
other remedies to protect the customer. (See §§ 9882.5, 9880.3
[“Protection of the public shall be the highest priority for the
Bureau of Automotive Repair in exercising its licensing,
regulatory, and disciplinary functions.”].) In addition, the
customer may file a civil action asserting a cause of action for
conversion or trespass to chattels. (See, e.g., Harris, supra,
132 Cal.App.3d 485.) The customer also remains free to assert
other common law and statutory causes of action arising out of
the violation. (§ 9884.18; see Moradi-Shalal, supra, 46 Cal.3d at
pp. 304–305.) We think these measures are likely to provide
sufficient protection for customers.
       Vasquez’s reliance on Harris, supra, 132 Cal.App.3d 485,
is misplaced. In that case, a dealer repaired the plaintiff’s car
without providing a written estimate or receiving authorization.
(Id. at p. 488.) When the plaintiff refused to pay for the repairs,
the dealer refused to return her car. (Ibid.) Eventually, the
plaintiff brought a civil action against the dealer, and apparently
pleaded causes of action for wrongful possession and violations of
section 9884.9. (See id. at pp. 487, 494.) A jury found in the
plaintiff’s favor and awarded her general and punitive damages.
(Id. at p. 488.)




                                13
       On appeal, the dealer challenged only the award of
damages, and the court affirmed the judgment.11 (Harris, supra,
132 Cal.App.3d at pp. 489–495.) The court determined the award
of general damages was reasonable and supported by sufficient
evidence showing the value of the loss of use of the car while it
was detained by the dealer. (Id. at pp. 492–493.) The court
further explained that the violations of section 9884.9 were
evidence that the dealer acted with malice, which provided
support for the award of punitive damages. (Id. at p. 494.)
       In relying on Harris, Vasquez ignores a fundamental
principle of jurisprudence that “an opinion is not authority for a
proposition not therein considered.” (Ginns v. Savage (1964)
61 Cal.2d 520, 524, fn. 2; see Nolan v. City of Anaheim (2004)
33 Cal.4th 335, 343 [“A decision, of course, does not stand for a
proposition not considered by the court.”].) The Harris court
considered only whether the award of damages was proper; it did
not address whether there is a private cause of action for
violation of section 9884.9. Nor was it necessary for the Harris
court to implicitly make such a finding in order to affirm the
judgment. Indeed, the court explained that the plaintiff’s general
damages arose entirely from the dealer’s wrongful possession of
her car, which itself provided a common law cause of action
distinct from the violations of section 9884.9.12 (See e.g.,

11    Based on the parties’ stipulation, the court modified the
judgment to reduce the award of general damages by $2,500.
(Harris, supra, 132 Cal.App.3d at pp. 489–490.) The reasons for
the reduction are not relevant here.

12    This is not to say the wrongful possession cause of action
was unrelated to the violations of section 9884.9. To the
contrary, the violations explained why the dealer’s continued



                                14
Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401
[discussing the tort of trespass to chattels]; Fremont Indemnity
Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119
[discussing the tort of conversion]; Rest.2d Torts, §§ 221, 222A,
223.) Moreover, although the court referred to the violations of
section 9884.9 while discussing the award of punitive damages, it
did so only to explain that the violations were evidence of the
dealer’s malice. The court did not find that the violations, in and
of themselves, gave rise to liability. Consequently, Harris has no
precedential value on the issue of whether section 9884.9
contains a private cause of action.
       We also find no merit to Vasquez’s brief contention that the
Legislature expressed its intention to create a private cause of
action in section 9884.18, which states: “Nothing in the
provisions of [the Automotive Repair Act] shall prohibit the
bringing of a civil action against an automotive repair dealer by
an individual.” (§ 9884.18.) Contrary to Vasquez’s suggestions,
this language simply expresses that the Automotive Repair Act
was not intended to replace other forms of civil liability. It does
not indicate an affirmative intent to create a new private cause of
action.




possession of the car was wrongful. A statutory violation,
however, may provide evidence of an element of a pre-existing
cause of action without creating a wholly new private right to
sue. (Crusader, supra, 54 Cal.App.4th at p. 125; see Moradi-
Shalal, supra, 46 Cal.3d at pp. 304–305.)



                                15
       Moradi-Shalal, supra, 46 Cal.3d 287, is instructive. In that
case, the California Supreme Court determined that the
Legislature did not manifest an intent to create a private cause of
action when it enacted a statute stating the imposition of a
certain administrative remedy “shall [not] in any way relieve or
absolve such person from any . . . civil liability . . . under the laws
of this State arising out of the methods, acts or practices found
unfair or deceptive.” (Ins. Code, § 790.09.) The high court agreed
that, if “the Legislature truly had intended to grant third party
claimants a private cause of action . . . , ‘then surely much more
direct and precise language would have been selected’ . . . . ‘[O]ne
would reasonably have expected that the Legislature simply
would have directly imposed such liability in clear,
understandable, unmistakable terms, as it has done in numerous
other statutes.’ ” (Moradi-Shalal, supra, 46 Cal.3d at pp. 294–
295, 304, quoting Royal Globe Ins. Co. v. Superior Court (1979) 23
Cal.3d 880, 896 (conc. & dis. opn. of Richardson, J.).) Here, too,
one would reasonably expect the Legislature to have used much
more direct language than section 9884.18 had it intended to
create a private cause of action against a dealer for a violation of
section 9884.9.
       Finally, we reject Vasquez’s suggestions that we affirm the
judgment on a theory of unjust enrichment or wrongful
possession, despite his failure to raise those theories in the trial
court.13 “ ‘The rule is well settled that the theory upon which a


13    The trial court determined there was no conversion, and
Vasquez did not cross-appeal the judgment. Generally, a
respondent who has not appealed from the judgment may not
urge error on appeal. (Preserve Poway v. City of Poway (2016)
245 Cal.App.4th 560, 585.) Therefore, we presume that when



                                  16
case is tried must be adhered to on appeal. A party is not
permitted to change his position and adopt a new and different
theory on appeal. To permit him to do so would not only be
unfair to the trial court, but manifestly unjust to the opposing
litigant. [Citation.]’ [Citations.]” (Richmond v. Dart Industries,
Inc. (1987) 196 Cal.App.3d 869, 874; see United States Golf Assn.
v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623
[“appellant cannot challenge a judgment on the basis of a new
cause of action it did not advance below”].) Despite this general
rule, courts have discretion to consider a new theory on appeal if
it involves a legal question based on undisputed facts. (In re
Marriage Priem (2013) 214 Cal.App.4th 505, 511; Ward v.
Taggart (1959) 51 Cal.2d 736, 742.) Here, however, Vasquez fails
to provide any meaningful analysis explaining how the
undisputed facts entitle him to relief, as a matter of law, on a
theory of wrongful possession or unjust enrichment. In addition,
we have no means of assessing damages under such theories.
Accordingly, we follow the general rule and decline to consider
Vasquez’s theories of liability raised for the first time on appeal.14




Vasquez refers to “wrongful possession,” he means something
other than conversion.

14     Because we conclude there is no private cause of action for
violation of section 9884.9, we need not consider SOLO’s
alternative argument that the court erred in awarding damages
to Vasquez.




                                 17
                        DISPOSITION
      The judgment is reversed. On remand, the trial court shall
enter judgment in favor of SOLO. SOLO is awarded its costs on
appeal.



                                         BIGELOW, P.J.
We concur:



             GRIMES, J.




             GOODMAN, J.*




*     Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                               18
Filed 9/12/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

CHRISTOPHER VASQUEZ,                         B280152

       Plaintiff and Respondent,             (Los Angeles County
                                              Super. Ct. No. BC555976)
       v.
                                             ORDER CERTIFYING
SOLO 1 KUSTOMS, INC.,                        PUBLICATION

       Defendant and Appellant.               [No change in the judgment]



THE COURT:

       The opinion in the above entitled matter was filed on
August 15, 2018, and modified on September 11, 2018, was not
certified for publication in the Official Reports. For good cause it
now appears that the opinion should be published in the Official
Reports and it is so ordered.



____________________________________________________________
BIGELOW, P. J.         GRIMES, J.           GOODMAN, J.*

*     Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                   1
