Flores v. Southcoast Automotive Liquidators, Inc. ( 2017 )

Filed 11/27/17
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
KRYSTAL FLORES, B268271
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VC063221)
v.
SOUTHCOAST AUTOMOTIVE
LIQUIDATORS, INC., et al.,
Defendants and Appellants.
APPEAL from judgment of the Superior Court of Los
Angeles County, Brian F. Gasdiar, Judge. Affirmed.
Madison Harbor, Jenos Firouznam-Heidari, for
Defendants and Appellants.
Pursuant to California Rules of Court, rules 8.1100
*
and 8.1110, this opinion is certified for publication with the
exception of parts III. and IV. of the discussion.
Law Offices of Robert B. Mobasseri, Robert B.
Mobasseri, David A. Cooper, Amy L. Hajduk, Plaintiff and
Respondent.
_______________________
A car dealer and a lender appeal from a judgment
awarding damages to a consumer for fraud and imposing an
injunction on dealer’s advertising under the Unfair
Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.).
In the published portion of this opinion, we hold that an
appropriate correction offer under the Consumers Legal
Remedies Act (CLRA; Civ. Code, § 1750 et seq.)1 does not
prevent a consumer from pursuing causes of action for fraud
and violation of the UCL based on the same conduct, because
the remedies are cumulative. In the unpublished portion of
the opinion, we conclude that the parties presented the
cause of action for violation of the UCL to the trial court for
a decision, and there was substantial evidence supporting
the award of attorney fees under Code of Civil Procedure
section 1021.5. Accordingly, we affirm.
1 All further statutory references are to the Civil Code
unless otherwise stated.
2
FACTS AND PROCEDURAL BACKGROUND
Car Purchase and Repair
Defendant and appellant Southcoast Automotive
Liquidators, Inc., doing business as Discount Auto Plaza
(Dealer), publishes print advertisements on Wednesdays
that advertise low prices for specific cars to attract
customers to the dealership. Small print at the bottom of
the advertisements states that the price expires at 12:00
p.m. on the day of publication. A customer who calls before
noon to inquire about a car in an advertisement will be
quoted the sale price. If the customer arrives at the
dealership in the afternoon, the advertisement has expired
and the car is sold for full price. Dealer also posts the
advertisements online for about three hours. The
advertisements on the internet do not contain expiration
information and are simply taken down after three hours.
In April 2013, plaintiff and respondent Krystal Flores
wanted to buy her first car. She saw Dealer’s advertisement
on the internet for a black 2009 Dodge Charger for $9,995.
She printed the advertisement and asked her parents to call
the phone number on it the next day to ask questions. Her
mother called and spoke with a male employee named
Sergio, who said the car had 42,000 miles and was in
3
excellent condition. 2 Her mother asked if he could go any
lower on the price and he said he might be able to drop the
price to $9,000. Flores waited an hour and had her father
call to see if he got the same answers. A female employee
said the car had 42,000 miles on it. Plaintiff’s father
explained that they were going to drive an hour and a half to
see the car, so he needed her to be honest and not waste
their time. She said there were no mechanical issues with
the car.
The next day, Flores, her mother, and her sister drove
from Oxnard to South Gate to view the car. Upon arriving,
they asked for Sergio. A salesperson falsely responded that
he was Sergio. Flores showed him the advertisement from
the internet. He showed her a black 2009 Dodge Charger
with body damage and mileage of 107,000. He said it was
the only black Charger on the lot, but the Dealer could
repair the damage. Flores was very excited to purchase a
car and thought it might still be worth buying. They went
inside to discuss the paperwork. Flores’s mother recognized
the voice of another salesperson as the real Sergio. He said
the price of $9,000 was for a cash payment, so Flores’s price
would be the advertised price of $9,995.
Sergio told the assistant manager that Flores wanted
to buy the Charger. The assistant manager called the
manager and asked what he wanted to sell the Charger for,
2 Sergio’s last name is not provided in the record on
appeal.
4
then put the number in the paperwork as the total cash
price. Salesperson Maria Guadalupe Jauregui assisted
Flores with the paperwork for the purchase, bringing each
document out from the printer. While Flores completed the
paperwork, a fight broke out between the male salespeople
over credit for the sale, and the police responded.
One document listed the selling price as $16,995.
Flores’s mother noticed that it stated the amount financed
was $17,401 and asked why the document did not say
$9,995. Jauregui said not to worry about it, because they
were just throwing numbers out and that number would not
stay. Flores signed an optional gap insurance contract for
$895 without reading it or receiving any explanation. The
lender was defendant and respondent Veros Credit, LLC
(Lender).
On the drive home, Flores noticed a tire warning light
was on. After that, the engine light went on. Flores brought
the car to a mechanic the next day and got a list of repairs
that were needed. She called Jauregui and told her that the
car was going to overheat. Jauregui said to bring it to
Dealer with the list of repairs and it would take three days
to fix. Flores brought the car with the repair list. She called
Jauregui each day to ask if the car was ready. When
Jauregui stopped answering her phone, Flores began texting
her.
When Flores returned to Dealer to pick up her car,
Jauregui came outside. She said Dealer had not been honest
with either of them and not to pay any more money. Flores
5
took the car back to the mechanic immediately, who said the
repairs had not been made. The check engine light
continued to indicate, and the car often failed to start.
Demand Letter and Legal Action
On May 31, 2013, attorney Amy Hajduk sent a letter
on behalf of Flores to Dealer. She described the
advertisement for the car and the conversations that Flores’s
family had with Dealer’s salespeople. The letter stated that
when Flores questioned the price discrepancy in the sales
contract, Jauregui said to disregard the numbers. Jauregui
said she would switch the financing company in six months
and the price would go down $11,000.
Hajduk asserted that Dealer’s acts constituted unfair
methods of competition and/or unfair or deceptive acts in
violation of the CLRA. Flores demanded Dealer remedy the
violations within 30 days by consenting to the entry of a
specific injunction preventing any further predatory acts
against the public. The injunction would prohibit Dealer
from continuing to violate CLRA provisions set forth in the
letter and/or engaging in the practices against Flores and
other members of the public. She also demanded that Dealer
return all the funds that she had paid, and pay incidental,
consequential, and actual damages that she had suffered due
to Dealer’s violations of the CLRA. Flores further demanded
payment of her legal costs and attorney fees.
6
On June 7, 2013, Flores filed a complaint against
Dealer and Lender alleging several causes of action,
including violation of the CLRA, violation of the UCL, fraud,
violation of the Song-Beverly Consumer Warranty Act (Song-
Beverly Act; Civ. Code, § 1790 et seq.), and violation of the
Magnuson-Moss Consumer Warranty Act (Magnuson-Moss
Act; 15 U.S.C. § 2301 et seq.). Flores sought an injunction
under the CLRA. She alleged unfair, unlawful, and
fraudulent conduct in violation of all three prongs of the
UCL, and sought an award of attorney fees under Code of
Civil Procedure section 1021.5.
On June 25, 2013, Dealer’s counsel called Flores’s
counsel and offered complete rescission of the purchase
agreement with no offset, plus $1,500 for incidental costs.
Dealer was willing to negotiate the amount for incidental
costs as long as Flores provided additional receipts for
incidental damages. Flores’s attorney stated that Flores
required $15,000 for civil penalties and attorney fees.
On July 3, 2013, Dealer’s counsel wrote to Flores’s
counsel and denied Flores’s claims. Dealer noted that the
price stated in the print advertisements expired at 12:00
p.m. on the day of publication and was subject to approved
credit. Flores did not purchase the car on the day that the
advertisement was published. Dealer offered to fully rescind
the contract, refund all payments, and provide an additional
$1,500 for incidental costs. In exchange, Flores would have
to return the car in substantially the same condition as she
received it. If Flores rejected the offer, Dealer would deposit
7
with the court the amount that Dealer believed to be a full
remedy and seek a determination that it was the prevailing
party entitled to fees and costs, including attorney fees, for
being forced to respond to a complaint after a full remedy
was offered.
Flores rejected the offer because she did not believe it
compensated her attorneys. On September 9, 2013, Dealer
and Lender filed an answer containing a general denial to
the allegations of the complaint and asserting affirmative
defenses. On February 19, 2015, Flores filed an ex parte
motion for permission to file an amended complaint seeking
damages under the CLRA. The proposed amended
complaint continued to seek an injunction against violations
of the CLRA, but also sought restitution, actual damages,
and punitive damages.
A bench trial began on April 1, 2015. In closing
argument, Flores’s attorney David Cooper argued that the
cause of action under the CLRA focused on deceptive trade
practices, specifically, Dealer’s deceptive online advertising
that failed to mention any expiration and Dealer’s gap
insurance practices. Flores sought a wide range of relief,
including an injunction to prevent this type of advertising.
He added, “The UCL claim in cause of action number 2 is
largely overlapping the CLRA claim, cause of action number
1, in that we’re seeking injunctive relief. So, the same
argument would be made as to that, an order enjoining the
future behavior of the dealer in so far as they are attempting
to sell cars at prices great[ly] beyond the advertised price
8
merely because someone comes in at noon -- or 12:01, instead
of noon.” Cooper noted that the settlement offer from Dealer
did not address the request for an injunction.
In response, Dealer and Lender’s attorney argued that
correction offers under the CLRA do not need to include an
injunction to be reasonable. “With regard to the claim for an
injunction under both, really, the CLRA and UCL, it’s not
appropriate here. An injunction is not appropriate where a
plaintiff seeks legal remedies.” He argued that equitable
remedies were not available because Flores could be made
whole by her legal remedy. He added, “Finally, with regard
to the UCL and the equitable relief sought therein, it’s a
[dependent] cause of action. There has to be some sort of
independent wrong. We haven’t seen that here. All that is
going to happen is it’s going to stifle advertising and tell
dealerships not to give deals.” He asked the court to find
that there was no violation of the CLRA, or if there was, it
was remedied by the prelitigation offer; that the UCL did not
apply because Flores had sought legal damages and there
had been no evidence of a scheme that authorized the court
to impose an injunction to enjoin ongoing conduct; and the
elements for fraud were not met.
The trial court ruled on April 2, 2015, that Dealer
made a valid settlement offer to resolve the situation in good
faith, and therefore, damages were not justified as to either
defendant for violation of the CLRA. The court also found in
favor of Dealer and Lender on the cause of action for fraud.
However, the court found violations of the UCL, Song-
9
Beverly Act, and the Magnuson-Moss Act based on breach of
warranty. The court granted judgment against Dealer for
general damages of $15,409.95, plus civil penalties of
$23,114.93. The court granted judgment as against Lender
in the amount of $12,491.52, which represented Lender’s
joint liability. The court granted rescission of the purchase
contract and ordered the car returned. The court also
granted a limited permanent injunction prohibiting Dealer
from advertising any vehicle for sale in print or on the
internet without clearly stating the expiration date and time
of any special or reduced price. The court found Flores was
the prevailing party. On April 21, 2015, the trial court
entered judgment accordingly.
Post-Judgment Proceedings
Flores filed a motion for an award of attorney fees of
$80,927.25 under the Song-Beverly Act. Dealer and Lender
opposed the motion. They also filed a motion to set aside
and vacate the judgment on several grounds. Flores opposed
the motion to vacate the judgment. Flores argued the trial
court’s finding that the correction offer complied with the
CLRA only prevented liability for damages under the CLRA.
She argued that after filing a successful action for injunctive
relief, even if the defendant responds with an appropriate
corrective offer as to damages, the plaintiff is entitled to
attorney fees.
10
A hearing was held on the attorney fees motion on
June 9, 2015. The trial court took the matter under
submission. A hearing was held on June 25, 2015, on the
motion to set aside and vacate the judgment. The trial court
revised its findings and the judgment. The court noted that
injunctive relief, rescission, and restitution were available
under the UCL. The court found an injunction was proper to
enjoin unfair competition under the UCL, so it did not
change the portion of the judgment awarding injunctive
relief under the UCL. The court reviewed its analysis of the
CLRA cause of action in favor of Dealer and Lender and
declined to change its ruling. The court noted that the
remedies of the CLRA are cumulative of other types of relief.
The court reversed its ruling under the Song-Beverly Act,
because there had been only one attempt to have Dealer
repair the car, and therefore, the court found no liability
under the Song-Beverly Act or Magnuson-Moss Act.
The trial court also reconsidered its findings on the
fraud cause of action. Fraudulent misrepresentations had
been made about the car in telephone conversations to
induce Flores to drive to the dealership, which violated the
CLRA and the UCL. Jauregui misrepresented the finance
agreement when she told Flores’s mother that Dealer was
simply throwing numbers out and would rewrite the price
later, which violated the CLRA and the UCL. Flores’s
assent to the contract was procured by a false promise,
which vitiated her consent. Dealer represented that repairs
were performed which had not been done, which was also a
11
violation of the Song-Beverly Act. The court found in favor
of Flores on the fraud cause of action and awarded general
damages of $15,409.25. The trial court determined
$15,409.25 was an appropriate award of punitive damages.
The trial court also awarded attorney fees to Flores
under Code of Civil Procedure section 1021.5. The court
found the injunction conferred a significant benefit upon the
general public and was more than an ancillary benefit. It
alleviated the necessity and financial burden of private
enforcement, and in the interests of justice, the fees should
not be paid out of the recovery. The court reduced the
amount of fees to $24,278.18 to reflect the causes of action
eligible for fees under the statute on which Flores had
prevailed for the public benefit. The court found 70 percent
of the fees incurred were for Flores’s private benefit and 30
percent were for the public benefit. Costs were determined
to be $3,922.50.
On August 20, 2015, the trial court entered its
amended judgment in favor of Flores on the causes of action
for violation of the UCL and fraud. The court granted
general damages of $15,409.95 against Dealer, plus punitive
damages of $15,409.95, and damages of $12,491.52 against
Lender, which represented the portion for which Lender was
jointly liable. The court also granted rescission of the
purchase contract. The court imposed a permanent
injunction against Dealer enjoining advertising any vehicle
for sale in print or on the internet without clearly stating the
12
date and time of any expiration. The court awarded attorney
fees of $24,278.18 and costs of $3,922.50 against Dealer.
Flores filed a notice of appeal from the August 20, 2015
judgment, but subsequently dismissed the appeal. Dealer
and Lender filed a cross-appeal from the August 20, 2015
judgment.
DISCUSSION
I. Standard of Review
We interpret a statute de novo. (In re J.P. (2014) 229
Cal.App.4th 108, 122.) As with any statute, “‘“[w]e begin
with the fundamental rule that our primary task is to
determine the lawmakers’ intent.”’” (In re B.A. (2006) 141
Cal.App.4th 1411, 1418.) “Where statutory text ‘is
unambiguous and provides a clear answer, we need go no
further.’ [Citation.] We observe, however, that the available
legislative history and historical circumstances surrounding
the enactment only buttress our reading of the statute.
[Citations.]” (Scher v. Burke (2017) 3 Cal.5th 136, 148.) We
may take judicial notice of reports by the Senate and
Assembly Judiciary Committees. (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App.4th 26, 31–37 [collecting cases].)
13
II. The CLRA is Not an Exclusive Remedy
Dealer and Lender contend the CLRA is the exclusive
remedy for conduct encompassed by the CLRA, and Flores
cannot recover for fraud or violation of the UCL based on the
same conduct. They argue that the reasonable correction
offer barred Flores from maintaining an action for damages
under the CLRA, so she cannot maintain an action for
damages based on the same conduct under another statutory
or common law cause of action. This is incorrect.
The remedies of the CLRA are cumulative of other
rights. The CLRA expressly states: “The provisions of this
title are not exclusive. The remedies provided herein for
violation of any section of this title or for conduct proscribed
by any section of this title shall be in addition to any other
procedures or remedies for any violation or conduct provided
for in any other law. [¶] Nothing in this title shall limit any
other statutory or any common law rights of the Attorney
General or any other person to bring class actions. Class
actions by consumers brought under the specific provisions
of Chapter 3 (commencing with Section 1770) of this title
shall be governed exclusively by the provisions of Chapter 4
(commencing with Section 1780); however, this shall not be
construed so as to deprive a consumer of any statutory or
common law right to bring a class action without resort to
this title. If any act or practice proscribed under this title
also constitutes a cause of action in common law or a
violation of another statute, the consumer may assert such
14
common law or statutory cause of action under the
procedures and with the remedies provided for in such law.”
(§ 1752.)
The CLRA prohibits enumerated unfair methods of
competition and deceptive practices that result in the sale or
lease of goods or services to a consumer, including in
pertinent part: “(7) Representing that goods or services are
of a particular standard, quality, or grade, or that goods are
of a particular style or model, if they are of another. [¶] . . .
[¶] (9) Advertising goods or services with intent not to sell
them as advertised. [¶] . . . [¶] (13) Making false or
misleading statements of fact concerning reasons for,
existence of, or amounts of, price reductions. [¶] . . . [¶] (16)
Representing that the subject of a transaction has been
supplied in accordance with a previous representation when
it has not. [¶] (17) Representing that the consumer will
receive a rebate, discount, or other economic benefit, if the
earning of the benefit is contingent on an event to occur
subsequent to the consummation of the transaction. [¶] . . .
[¶] (19) Inserting an unconscionable provision in the
contract.” (§ 1770, subd. (a.).)
At least 30 days before filing an action for damages
under the CLRA, the consumer must provide written notice
of the particular violations of section 1770 and demand that
the party responsible correct, repair, replace or otherwise
rectify the goods or services. (§ 1782, subd. (a).) “Except as
provided in subdivision (c) [relating to class actions], no
action for damages may be maintained under Section 1780 if
15
an appropriate correction, repair, replacement, or other
remedy is given, or agreed to be given within a reasonable
time, to the consumer within 30 days after receipt of the
notice.” (§ 1782, subd. (b).) An action for injunctive relief
under section 1770 may be filed without sending a notice
under section 1782, subdivision (a). (§ 1782, subd. (d).) The
consumer may amend his or her action for injunctive relief to
include a request for damages after complying with section
1782, subdivision (a). (Ibid.)
Dealer’s reasonable correction offer prevented Flores
from maintaining a cause of action for damages under the
CLRA, but it did not prevent her from pursuing remedies
based on other statutory violations or common law causes of
action based on conduct under those laws. We note that
plaintiffs routinely plead fraud, UCL, and CLRA claims
based on similar allegations. (See, e.g., Miller v. Bank of
America, NT & SA (2009) 46 Cal.4th 630, 636; Tucker v.
Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201,
208–209; Morgan v. AT&T Wireless Services, Inc. (2009) 177
Cal.App.4th 1235, 1241.)
Dealer and Lender rely on two cases for the proposition
that the conduct described in section 1770 is governed
exclusively by the CLRA, despite the plain language of
section 1752 stating that remedies under the CLRA are not
exclusive. In Vasquez v. Superior Court (1971) 4 Cal.3d 800(Vasquez), our Supreme Court concluded that class actions
filed after the effective date of the CLRA which concern
deceptive practices specified in the statute are governed
16
exclusively by the provisions of the CLRA and must follow
the class action procedures specified in the act. (Id. at pp.
818–819.) The appellate court in Outboard Marine Corp. v.
Superior Court (1975) 52 Cal.App.3d 30, relied on Vasquez to
hold that if a cause of action alleged conduct specified in the
CLRA, the procedures of the CLRA must be followed
regardless of the nature of the cause of action pled in the
complaint. (Id. at p. 35.) Both cases, however, were decided
prior to the Legislature’s amendment of section 1752 in
1975.
The CLRA has always stated that its provisions are not
exclusive. The 1975 amendment affirmed the non-exclusive
nature of the remedies by adding that the remedies “for
violation of any section of this title or for conduct proscribed
by any section of this title” were in addition to any other
procedures or remedies “for any violation or conduct”
provided under any other law. (Stats 1975, ch. 615, § 1,
p. 1344.) The 1975 amendment made it clear that the
CLRA’s remedies for specified conduct were cumulative of a
plaintiff’s other common law and statutory causes of action.
We have taken judicial notice of the legislative history
of Assembly Bill No. 1411 (1975-1976 Reg. Sess.), on our own
motion. (Evid. Code, §§ 452, 459; In re J.W. (2002) 29
Cal.4th 200, 210.) The available legislative history, although
not dispositive, supports our conclusion that the 1975
amendment to section 1752 repudiated the holding in
Vasquez on this issue. The bill digests of both the Senate
and Assembly Judiciary Committees stated that the Vasquez
17
court determined class actions filed in the future based on
conduct described in the CLRA must comply with the CLRA
even if the action was based on common law or another
statute. (Sen. Com. on Judiciary, Bill Digest of Assem. Bill
No. 1411 (1975-1976 Reg. Sess.); Assem. Com. on Judiciary,
Bill Digest of Assem. Bill No. 1411 (1975-1976 Reg. Sess.).)
The Senate Judiciary Committee bill digest commented that
although the statement in Vasquez was dicta, the
amendment “would abrogate this rule.” (Sen. Com. on
Judiciary, Bill Digest to Assem. Bill No. 1411 (1975-1976
Reg. Sess.).) The Assembly Judiciary Committee bill digest
similarly commented that in response to Vasquez, the bill
“reflects the original legislative intent regarding the non-
exclusive nature of the Act.” (Assem. Com. on Judiciary, Bill
Digest to Assem. Bill No. 1411 (1975-1976 Reg. Sess.).)
Dealer and Lender also contend Flores cannot avoid
the safe harbor provided for a reasonable correction offer
under the CLRA by recasting her claim as a violation of the
UCL. This is incorrect. Flores’s UCL claim was based
directly on evidence of fraudulent advertising practices and
was not dependent on finding an underlying violation of the
CLRA. The CLRA expressly states that the effect of a
reasonable correction offer is to prevent the consumer from
maintaining an action for damages under Civil Code section
1780, but the remedies of the CLRA are cumulative and the
consumer may assert other common law or statutory causes
of action under the procedures and with the remedies
provided for in those laws.
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III. Cause of Action for Violation of the UCL
For the first time on appeal, Dealer and Lender
contend that there was no cause of action before the trial
court for violation of the UCL, because Flores dismissed her
cause of action and never amended the complaint to add a
new cause of action under the UCL. We conclude this
argument has been forfeited, because it was not preserved in
the trial court and may not be raised for the first time on
appeal.
A. Additional Facts
On October 7, 2014, after the defendants had filed their
answer, Flores dismissed her cause of action under the UCL
without prejudice. When Flores sought permission on
February 19, 2015, to file an amended complaint alleging
damages under the CLRA, the proposed pleading included a
UCL cause of action identical to the one that had been in the
original complaint. Flores did not mention the UCL
allegations in her motion. Dealer and Lender objected to the
new allegations of damages under the CLRA, but did not
mention the UCL cause of action. Flores’s trial brief
discussed the causes of action for fraud, false advertising,
and statutory violations, but did not mention the UCL.
At the start of the bench trial on April 1, 2015, the
court asked if the request to amend the first cause of action
of the complaint was still under consideration. Flores’s
19
attorney said it had been amended, filed and served, and
there was a proposed stipulation to have the original answer
deemed the answer to the amended complaint. Counsel for
Dealer and Lender agreed. The court stated, “Then the
answer that was previously filed by defendants will be
deemed the answer [to] the new allegations contained within
the first cause of action of the original complaint.”
In closing argument, both parties discussed the
application of the UCL to the facts. After trial, Dealer and
Lender objected to Flores’s proposed judgment, including
that Flores was not entitled to an injunction under the UCL
because she had an adequate legal remedy. They did not
mention the UCL in their opposition to Flores’s motion for
attorney fees under the Song-Beverly Act. In their first
motion to vacate the judgment, they argued that Flores was
not entitled to an injunction under the UCL because a
plaintiff with adequate legal remedies under the Song-
Beverly Act cannot obtain an injunction under the UCL, and
there was no evidence that she was likely to be harmed by
Dealer’s conduct in the future. They did not assert that
there was no cause of action for violation of the UCL before
the trial court for decision.
On September 15, 2015, Dealer and Lender filed a
motion to set aside and vacate the amended judgment. They
filed an amended motion that was substantially similar on
October 27, 2015. In the motions, they argued Flores was
not entitled to attorney fees under Code of Civil Procedure
section 1021.5, because the action did not serve to vindicate
20
an important public right, and the injunction did not confer
a significant benefit on the general public. They also argued
that the CLRA was the exclusive remedy for conduct
encompassed by it, and Flores could not use the UCL to
plead around the safe harbor provisions of the CLRA and the
Song-Beverly Act. The motion to vacate the amended
judgment was not heard due to intervening events.
B. Application of Law
“‘Where the parties try the case on the assumption that
. . . [an] issue . . . [is] raised by the pleadings, . . . neither
party can change this theory for the purpose of review on
appeal.’ (6 Witkin, Cal. Proc. (2d ed.) Appeals § 281,
p. 4269.)” (Hilliard v. A. H. Robins Co. (1983) 148
Cal.App.3d 374, 392.) “The rule is well settled that ‘When a
cause is tried and evidence introduced on the theory that a
material issue has been raised by the pleadings and the
court renders judgment on that theory, the parties will not
be allowed to say for the first time on appeal that there was
no such issue. [Citations.] If a case is tried, submitted, and
decided on a certain theory, a party will not be permitted to
raise for the first time on appeal an objection that could have
been obviated if it had been made in the court below.
[Citation.] Errors not taken advantage of at the trial cannot
be raised in the appellate court. [Citation.]’ (Grimes v.
Nicholson [(1945)] 71 Cal.App.2d [538,] 543.)” (Rubel v.
Peckham (1949) 94 Cal.App.2d 834, 836.)
21
“‘In order to preserve an issue for appeal, a party
ordinarily must raise the objection in the trial court.
[Citation.] “The rule that contentions not raised in the trial
court will not be considered on appeal is founded on
considerations of fairness to the court and opposing party,
and on the practical need for an orderly and efficient
administration of the law.” [Citations.] Otherwise, opposing
parties and trial courts would be deprived of opportunities to
correct alleged errors, and parties and appellate courts
would be required to deplete costly resources “to address
purported errors which could have been rectified in the trial
court had an objection been made.” [Citation.] In addition,
it is inappropriate to allow any party to “trifle with the
courts by standing silently by, thus permitting the
proceedings to reach a conclusion in which the party could
acquiesce if favorable and avoid if unfavorable.” [Citation.]’”
(Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th
771, 799–800, quoting In re S.C. (2006) 138 Cal.App.4th 396,
406–407.)
In this case, both parties argued the merits of the
cause of action for violation of the UCL in their closing
arguments, and the trial court made findings to determine
the issue. After the trial, Dealer and Lender filed
substantial objections to the form of the proposed judgment,
including arguments about the UCL cause of action, but did
not raise any objection based on whether the cause of action
was pled in the complaint. They filed a motion to set aside
the judgment that argued Flores was not entitled to a
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permanent injunction under the UCL, but did not raise any
issue related to the complaint. They filed an opposition to
Flores’s motion for attorney fees. They filed a second motion
to set aside the judgment making several arguments about
the applicability of the UCL without ever arguing that the
cause of action was not before the trial court. Had Dealer
and Lender objected to the UCL cause of action on this basis
in the trial court, the court could have remedied the issue.
Having failed to object at trial or in multiple post-judgment
pleadings, Dealer and Lender have forfeited the issue on
appeal.
IV. Attorney Fees Award
Dealer and Lender contend that there is no substantial
evidence to support finding in favor of Flores on any of the
three elements for an award of attorney fees under Code of
Civil Procedure section 1021.5. We find no abuse of the
court’s discretion in the award of attorney fees.
Fees may be awarded under Code of Civil Procedure
section 1021.5 when (1) an action “has resulted in the
enforcement of an important right affecting the public
interest,” (2) conferred a significant benefit on the general
public or a large class of persons, and (3) “the necessity and
financial burden of private enforcement” make the award
appropriate. (Code of Civ. Proc., § 1021.5; see Serrano v.
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Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018,
1026.)3
“With respect to necessity and financial burden, ‘“[a]n
award on the ‘private attorney general’ theory is appropriate
when the cost of the claimant’s legal victory transcends his
personal interest, that is, when the necessity for pursuing
the lawsuit placed a burden on the plaintiff ‘out of proportion
to his individual stake in the matter.’ [Citation.]”’
[Citation.]” (Mejia v. City of Los Angeles (2007) 156
Cal.App.4th 151, 157, fn. omitted (Mejia).)
“Whether the moving party has satisfied the statutory
requirements so as to justify a fee award is a question
committed to the discretion of the trial court; we review the
ruling for abuse of discretion. [Citations.] An abuse of
discretion occurs if, in light of the applicable law and
considering all of the relevant circumstances, the court’s
3 Code of Civil Procedure section 1021.5 provides in
pertinent part: “Upon motion, a court may award attorneys’
fees to a successful party against one or more opposing
parties in any action which has resulted in the enforcement
of an important right affecting the public interest if: (a) a
significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of
persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against
another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.”
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decision exceeds the bounds of reason and results in a
miscarriage of justice. [Citations.] This standard of review
affords considerable deference to the trial court provided
that the court acted in accordance with the governing rules
of law. We presume that the court properly applied the law
and acted within its discretion unless the appellant
affirmatively shows otherwise. [Citations.]” (Mejia, supra,
156 Cal.App.4th at p. 158.)
In this case, there was substantial evidence to support
the trial court’s findings. Flores’s action resulted in the
enforcement of an important right to be free of false and
misleading advertising. In fact, Dealer and Lender argued
against the necessity of an injunction on the ground that
Flores was not likely to be taken in by their advertising
practices again. The injunction primarily benefits members
of the general public who would be otherwise misled by
reliance on the advertised prices and predatory lending
practices. The necessity and financial burden of private
enforcement also made the award appropriate. There was
no evidence that any public enforcement action had been
taken to regulate Dealer’s advertising practices. The private
financial burden was disproportionate in this case as well.
Flores had to risk her own recovery of damages by rejecting
a reasonable correction offer in order to pursue injunctive
relief to limit Dealer’s predatory advertising practices for the
benefit of the general public. The trial court appropriately
limited the fee award. We find no abuse of discretion in the
award of attorney fees in this case.
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DISPOSITION
The judgment is affirmed. Respondent Krystal Flores
is awarded her costs on appeal.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
DUNNING, J. ∗
∗ Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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