Valdez v. Seidner-Miller, Inc. ( 2019 )

Filed 3/27/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REFUGIO VALDEZ, B281003
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC608104)
v.
SEIDNER-MILLER, INC.,
Defendant and Respondent.
APPEAL from the judgment of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Reversed and
remanded.
Rosner, Barry & Babbitt, Hallen D. Rosner, Michelle A.
Cook; Law Office of David Valdez, Jr., and David Valdez, Jr., for
Plaintiff and Appellant.
Law Offices of Morton Minikes, Morton Minikes; Madrid
Law Firm, Eduardo M. Madrid and Erica L. Madrid for
Defendant and Respondent.
______________
Refugio Valdez alleged Seidner-Miller, Inc. (Seidner),
violated the Consumer Legal Remedies Act (CLRA; Civ. Code,
§ 1750 et seq.), the unfair competition law (UCL; Bus. & Prof.
Code, § 17200 et seq.), and Civil Code section 16321 (requiring
translation of certain contracts), and committed fraud in
connection with Seidner’s lease of a vehicle to Valdez and his
wife. Valdez appeals from a judgment entered following the trial
court’s grant of summary judgment in favor of Seidner. Relying
on Benson v. Southern California Auto Sales, Inc. (2015)
239 Cal. App. 4th 1198, 1205 (Benson), the trial court ruled
Seidner made a timely and “appropriate” offer to correct the
alleged CLRA violations, barring Valdez’s claim under the CLRA
for damages and injunctive relief, as well as his section 1632,
UCL, and fraud claims, because the claims were “inextricably
intertwined” and based on the same conduct.
On appeal, Valdez contends Seidner’s correction offer was
not timely or appropriate under the CLRA. Although we
conclude Seidner’s correction offer was timely, it was not
appropriate. To the extent Benson reached a contrary conclusion,
we disagree with it. Where a business conditions its offer to
remedy a violation of the CLRA on the consumer waiving his or
her right to injunctive relief and remedies under other statutes
and common law, the offer is not an appropriate correction offer
as contemplated by section 1782, subdivision (b), and does not bar
a lawsuit by the consumer.2 Neither can the business demand as
1 Further statutory references are to the Civil Code unless
otherwise indicated.
2 Section 1782, subdivision (b), provides that a consumer
may not bring an “action for damages” for violation of the CLRA
if, after giving the business 30 days’ advance notice of the alleged
2
part of its correction offer that the consumer consent to additional
settlement terms unrelated to the compensation necessary to
make the consumer whole. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Valdez’s CLRA Notice
On August 11, 2015 Valdez sent Seidner a “notice of
rescission and demand for rectification” under the CLRA. The
CLRA notice alleged on August 15, 2014 Valdez and his wife,
Bertha Valdez, entered into an agreement with Seidner, doing
business as Toyota of Glendora, to lease a 2014 Toyota Camry.
Valdez wanted to purchase the car, but a Seidner salesperson
told Valdez and his wife they did not have sufficient credit to
qualify for a purchase. The salesperson represented they could
lease the car and refinance the contract after 10 payments. The
salesperson also stated GAP insurance3 and an alarm were
violations, the business provides a timely and “appropriate
correction, repair, replacement, or other remedy.”
3 “‘Guaranteed asset protection’ (GAP) insurance means
insurance in which a person agrees to indemnify a vehicle
purchaser or lessee for some or all of the amount owed on the
vehicle at the time of an unrecovered theft or total loss, after
credit for money received from the purchaser’s or lessee’s physical
damage insurer, pursuant to the terms of a loan, lease
agreement, or conditional sales contract used to purchase or lease
the vehicle.” (Ins. Code., § 1758.992, subd. (h)(1).) Under
California law, lease agreements must include a notice that
“‘[o]ptional coverage for the GAP amount may be offered for an
additional price.’” (Civ. Code, § 2985.8, subd. (j).)
3
required by law to be included in the lease agreement. The
negotiations were conducted in Spanish, but Seidner did not
provide Valdez and his wife a Spanish translation of the lease
agreement.
When Valdez returned to the dealership approximately 10
months later, he learned he could not refinance the car at the
initial price. Rather, the purchase would cost more than the
vehicle’s price under the lease. Moreover, Valdez applied for and
was denied credit for refinancing by four banks. The CLRA
notice alleged Seidner’s actions violated the CLRA and the UCL,
and constituted fraud.
The CLRA notice sought rescission of the transaction;
removal of the transaction from Valdez’s credit report; a refund of
$1,500 for the down payment, $4,626 for the monthly payments,
and $1,500 for insurance; and payment of $2,750 for attorney’s
fees and costs. The CLRA notice also requested Seidner
“[i]dentify and make whole all similarly situated consumers.”
The CLRA notice stated Seidner’s response must be in writing
and sent within 30 days to Valdez’s attorney.
B. Seidner’s Settlement Offer
On September 14, 2015 Seidner’s attorney, Andrew
Stearns, sent an e-mail to Valdez’s attorney, David Valdez, with
an attached draft “settlement agreement and release of claims.”
Under the draft settlement agreement, Seidner denied all
allegations in Valdez’s CLRA notice. Seidner agreed to pay off
the outstanding loan balance, pay $5,126 to reimburse the down
payment and monthly payments,4 and $2,750 for attorney’s fees
4 Although Valdez’s CLRA notice sought $1,500 for the down
payment, it is undisputed Valdez only paid $500.
4
and costs within 10 days after surrender of the vehicle. The draft
settlement agreement required Valdez to return the vehicle
“without damage or vandalism, save normal wear and tear,” and
allowed Seidner to void the settlement agreement if it determined
the vehicle was “in unacceptable condition.”
The draft settlement agreement required the parties to
keep confidential the facts relating to Valdez’s CLRA notice and
the terms of the agreement. It also contained a release of all
known and unknown claims and a covenant not to sue. In
addition, the draft agreement provided Valdez would dismiss any
actions he had filed with prejudice within five days of receipt of
Seidner’s consideration.
C. The Settlement Negotiations
The parties engaged in settlement negotiations through
their attorneys from September to early December 2015. During
the negotiations, Valdez disclosed the vehicle had been in an
accident in October 2014 and the repair costs were approximately
$3,300. According to Seidner, the vehicle history report showed
the vehicle was also in an accident on July 6, 2015.
On October 9, 2015 Stearns sent a letter to David Valdez
confirming the parties had agreed to “all items except the manner
in which the vehicle was to be surrendered.” Seidner requested
inspection of the vehicle before it would provide Valdez with the
settlement funds. David Valdez responded that “making the
settlement subject to an inspection is . . . not acceptable.” He
added in a followup e-mail, “There is no way this agreement can
be based upon your client’s subjective review of the car’s
condition.”
5
Stearns responded that Seidner was prepared to remove
the covenant not to sue language and confidentiality provision,
but not the requirement the vehicle be inspected prior to release
of the settlement funds. Although Valdez indicated he would
agree to an inspection if Seidner paid the costs of his attorney
and expert to be present, Seidner did not agree to this
modification. Valdez did not respond to Seidner’s final
settlement letter sent on December 4, 2015, which reiterated the
inspection requirement.
D. The Complaint
On January 22, 2016 Valdez filed a complaint against
Seidner and Toyota Motor Credit Corporation, alleging causes of
action for violations of the CLRA, section 1632, and the UCL, and
for fraud. Valdez alleged Seidner violated section 1632 because
the negotiations were conducted in Spanish, but Seidner did not
provide him with a Spanish translation of the lease. He sought
rescission of the lease, restitution, and attorney’s fees and costs
pursuant to the attorney’s fees provision in the lease.
Valdez also alleged violations of the CLRA based on
Seidner’s failure to provide a Spanish translation and specified
misrepresentations, including that Valdez could return to
Seidner in 10 months to refinance at the initial price and Valdez
was required to pay for GAP insurance and an alarm. According
to the complaint, Seidner “failed to provide or offer a reasonable
remedy within thirty days of receiving the [CLRA notice].”
Valdez sought $15,342.50 in damages under the lease and
unspecified damages for emotional distress (§ 1780, subd. (a)(1));
punitive damages (§ 1780, subd. (a)(4)); rescission; “injunctive
relief prohibiting [Seidner] from entering into lease agreements
6
without providing appropriate translations . . . when negotiations
are conducted primarily in a language other than English”; other
relief deemed proper (§ 1780, subd. (a)(5)); and attorney’s fees
and costs (§ 1780, subd. (e)).
Valdez further alleged Seidner’s business practices violated
the UCL based on the CLRA and section 1632 violations. He
sought rescission of the lease, restitution, and injunctive relief
(Bus. & Prof. Code, § 17203), as well as attorney’s fees and costs
under the lease. Finally, Valdez alleged a fraud claim based on
the same alleged misrepresentations, including that Seidner
“made the promise of refinancing the [lease] without any
intention of performing” and “willfully deceived [Valdez] with the
intent to induce him to enter into the [lease].” Valdez alleged he
reasonably relied on the representations and would not have
signed the lease but for the representations. He sought
$15,342.50 in damages, rescission, restitution, punitive damages
under section 3294, and attorney’s fees and costs under the lease.
E. Seidner’s Motion for Summary Judgment
On September 14, 2016 Seidner filed a motion for summary
judgment, or in the alternative, summary adjudication.5 Seidner
argued Valdez’s lawsuit was barred under section 1782,
subdivision (b), because Seidner timely offered an appropriate
correction, including rescission of the lease, reimbursement of the
money paid by Valdez, and payoff of the lease to the lender,
which would make Valdez whole. Seidner acknowledged its offer
5 Although Seidner in its notice sought summary
adjudication, it did not seek to adjudicate specific causes of
action, instead arguing that its offer of correction barred the
entire action.
7
was subject to “the vehicle being returned in the same condition
as when it was leased to [Valdez],” allowing for reasonable wear
and tear.
In his opposition, Valdez argued Seidner did not offer a
remedy within 30 days of receiving the CLRA prelitigation notice,
and the remedy it offered was not appropriate. Valdez asserted
an appropriate remedy under section 1782 was only a defense to
a claim for damages under the CLRA, not a claim for rescission
under the CLRA,6 violations of section 1632 or the UCL, or fraud.
Valdez also argued Seidner’s additional terms, including the
confidentiality provision and its unilateral right to void the
agreement based on its subjective assessment of the vehicle
condition, rendered the correction offer illusory.
Seidner responded in its reply that the offer of correction
was timely because Seidner received the CLRA notice on
August 13, 2015, and the 30th day following receipt of the notice
fell on September 12, 2015, which was a Saturday. Thus, under
Code of Civil Procedure section 12a, subdivision (a), Seidner’s
time to respond was extended to the next day that was not a
“holiday,” which was Monday, September 14, 2015. Seidner
presented evidence it e-mailed David Valdez a proposed
settlement agreement on that date.
6 The CLRA does not specifically provide for rescission as a
remedy for a violation, instead referring generally to “other relief
deemed proper.” (§ 1780, subd. (a)(5).) In his opposition Valdez
referred to his right to rescission under the CLRA, but at the
hearing David Valdez also argued Valdez’s right to obtain
injunctive relief without prelitigation notice.
8
F. The Summary Judgment Ruling and Judgment
At the January 23, 2017 hearing, the trial court heard
argument on whether the correction offer was timely and
appropriate, then took the matter under submission. On
January 25 the trial court granted Seidner’s motion for summary
judgment.7 The January 25 minute order incorporated the final
ruling purportedly filed on the same date; however, no final
ruling was filed.
On February 21, 2017 the trial court signed an order for
entry of summary judgment.8 The order concluded Seidner made
a timely and appropriate offer of correction under the CLRA. The
order found that “[b]ecause [Seidner], in effect, offered to undo
the entire transaction and pay [Valdez] a reasonable sum,
[Seidner’s] offer was a reasonable and appropriate offer of
correction as a matter of law. [¶] [Valdez’s] cause of action under
the CLRA fails because [Seidner] timely offered an appropriate
correction, repair, replacement, or remedy, and the offer included
a settlement, release of all claims, and rescission of the entire
lease agreement, with appropriate restitution.” Relying on
Benson, supra, 239 Cal.App.4th at page 1205, the order stated
Valdez’s non-CLRA causes of action were “in essence, covered and
succumbed by the CLRA in that they are ‘inextricably
intertwined’ with the CLRA claim and based on the same
7 The trial court denied the motion for summary judgment
without prejudice as to Toyota Motor Credit Corporation, which
had filed a joinder in Seidner’s motion, because Toyota did not
include a separate statement or any evidence in support of its
joinder.
8 The order was signed by Judge Robert B. Broadbelt;
however, Judge Hammock signed the final judgment.
9
conduct,” and Seidner offered an appropriate correction including
settlement and release of all claims. The order concluded,
“Therefore, all of [Valdez’s] non-CLRA causes of action also fail
because no cause of action for damages may be maintained if a
timely and appropriate correction was offered (. . . § 1782(b)).”
On February 23, 2017 Valdez filed a notice of appeal of the
February 21, 2017 order. However, the trial court did not enter
the judgment until March 28, 2017.9 We denied as moot
Seidner’s motion to dismiss the appeal in light of entry of the
judgment. We consider Valdez’s premature notice of appeal as a
valid “notice of appeal filed after judgment is rendered but before
it is entered,” and treat the notice as filed immediately after
entry of judgment. (Cal. Rules of Court, rule 8.104(d)(1).)
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Delgadillo v. Television Center, Inc. (2018)
20 Cal.App.5th 1078, 1085.) A defendant moving for summary
judgment has the initial burden of presenting evidence that a
cause of action lacks merit because the plaintiff cannot establish
an element of the cause of action or there is a complete defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
9 On our own motion we augment the record to include the
March 28, 2017 “judgment by court under CCP § 437c.” (See Cal.
Rules of Court, rule 8.155(a)(1)(A).)
10
Co. (2001) 25 Cal. 4th 826, 853; Gund v. County of Trinity (2018)
24 Cal.App.5th 185, 193 [defendant has burden of showing
worker’s compensation was complete defense to lawsuit]; Drexler
v. Petersen (2016) 4 Cal.App.5th 1181, 1188 [“‘A defendant has
the initial burden to show that undisputed facts support
summary judgment based on the application of an affirmative
defense.’”].) If the defendant satisfies this initial burden, the
burden shifts to the plaintiff to present evidence demonstrating
there is a triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850; Gund, at p. 193.)
We independently review the trial court’s grant of
summary judgment, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained. (Hampton v. County of San Diego (2015)
62 Cal. 4th 340, 347; Wilson v. 21st Century Ins. Co. (2007)
42 Cal. 4th 713, 717.) “‘“We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.”’”
(Hampton, at p. 347; accord, Wilson, at p. 717.)
Likewise, “[w]e review questions of statutory construction
de novo. Our primary task ‘in interpreting a statute is to
determine the Legislature’s intent, giving effect to the law’s
purpose. [Citation.] We consider first the words of a statute, as
the most reliable indicator of legislative intent. [Citation.]’
[Citation.] We construe the statute’s words in context,
harmonizing statutory provisions to avoid absurd results.
[Citation.] If the statutory text is susceptible to more than one
reasonable construction, we may consider extrinsic aids such as
legislative history to facilitate our interpretative analysis.”
(California Building Industry Assn. v. State Water Resources
11
Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, United Riggers
& Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082,
1089.)10
B. The CLRA
The CLRA proscribes “unfair methods of competition and
unfair or deceptive acts or practices undertaken by any person in
a transaction intended to result or that results in the sale or
lease of goods or services to any consumer,” including, as alleged
by Valdez: “(5) Representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits,
or quantities that they do not have . . . . [¶] . . . [¶] (14)
Representing that a transaction confers or involves rights,
remedies, or obligations that it does not have or involve, or that
are prohibited by law. [¶] . . . [¶] (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
10 Seidner contends the trial court’s finding the settlement
offer was an appropriate correction offer is reviewed for an abuse
of discretion, relying on the statement in Benson that “the
determination of appropriateness of a correction offer under the
CLRA should be left to the trial court’s discretion.” (Benson,
supra, 239 Cal.App.4th at p. 1207.) But as Seidner
acknowledges, Benson involved an appeal from an order denying
the plaintiff’s request for attorney’s fees and costs, not an order
granting summary judgment. Further, although a trial court has
discretion to determine whether a correction offer makes a
plaintiff whole, we review de novo the legal questions whether a
correction offer made following a weekend is timely and whether
an appropriate correction offer can require release of claims other
than a CLRA damage claim and compliance with other
settlement terms.
12
occur subsequent to the consummation of the transaction. [¶]
(18) Misrepresenting the authority of a salesperson,
representative, or agent to negotiate the final terms of a
transaction with a consumer.” (§ 1770, subd. (a).)11
“The Legislature enacted the CLRA ‘to protect consumers
against unfair and deceptive business practices and to provide
efficient and economical procedures to secure such protection.’
(. . . § 1760.) ‘To promote’ these purposes, the Legislature
directed that the CLRA ‘be liberally construed and applied.’
(Ibid.)” (McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 954
(McGill); accord, Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th
634, 645 (Meyer).)
Section 1780, subdivision (a), provides, “Any consumer who
suffers any damage as a result of the use or employment by any
person of a method, act, or practice declared to be unlawful by
Section 1770 may bring an action against that person to recover
or obtain any of the following: [¶] (1) Actual damages. . . . [¶]
(2) An order enjoining the methods, acts, or practices. [¶]
(3) Restitution of property. [¶] (4) Punitive damages. [¶]
(5) Any other relief that the court deems proper.” In addition, a
prevailing plaintiff is entitled to attorney’s fees and costs.
11 Valdez also alleged additional violations of section 1770,
subdivision (a): “(2) Misrepresenting the source, sponsorship,
approval, or certification of goods or services. [¶] (3)
Misrepresenting the affiliation, connection, or association with, or
certification by, another . . . . [¶] (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. [¶]
(16) Representing that the subject of a transaction has been
supplied in accordance with a previous representation when it
has not.”
13
(§ 1780, subd. (e) [“The court shall award court costs and
attorney’s fees to a prevailing plaintiff in litigation filed pursuant
to this section.”].)
At least 30 days “prior to the commencement of an action
for damages” under the CLRA, the consumer must provide
written notice “of the particular alleged violations of Section
1770” and “[d]emand that the person correct, repair, replace, or
otherwise rectify the goods or services alleged to be in violation of
Section 1770.” (§ 1782, subd. (a).) Further, “no action for
damages may be maintained under Section 1780 if 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).)
C. Seidner’s Offer Was Timely
Valdez contends Seidner’s correction offer was not timely
because it was sent 32 days after Seidner received the CLRA
notice.12 We agree with Seidner that its offer was timely because
the time for it to make a correction offer fell on a Saturday.
It is undisputed Valdez sent his CLRA notice by certified
mail on August 11, 2015, and Seidner received it on August 13.
Pursuant to section 1782, subdivision (b), Seidner had to make a
12 Valdez also contends the draft settlement agreement was
not a correction offer under the CLRA because it was labeled a
draft settlement agreement, not a correction offer. But there is
no requirement in section 1782, subdivision (b), that a response
to the required notice be identified as a correction, as long as the
response provides “an appropriate correction, repair,
replacement, or other remedy.”
14
correction offer “within 30 days after receipt of the notice.” The
30th day was September 12, 2015, which was a Saturday. Code
of Civil Procedure section 12a, subdivision (a), provides that “[i]f
the last day for the performance of any act provided or required
by law to be performed within a specified period of time is a
holiday, then that period is hereby extended to and including the
next day that is not a holiday.”13 A “holiday” is defined to include
Saturdays (Code Civ. Proc. § 12a, subd. (a)) and Sundays (id.,
§ 10).
Contrary to Valdez’s contention, nothing in Code of Civil
Procedure section 12a limits its application to business
institutions and government offices that would be inaccessible on
weekends. (See DeLeon v. Bay Area Rapid Transit Dist. (1983)
33 Cal. 3d 456, 460 [“Consistent with the need for certainty in the
method of computing time, a case will not be found to come under
an exception to the general rule [under section 12a] unless there
is a clear expression of provision for a different method of
computation.”]; Ystrom v. Handel (1988) 205 Cal. App. 3d 144, 147-
13 Code of Civil Procedure section 12a, subdivision (b),
provides further, “This section applies to [all] provisions of law
providing or requiring an act to be performed on a particular day
or within a specified period of time, whether expressed in this or
any other code or statute, ordinance, rule, or regulation.”
Valdez’s reliance on Steele v. Bartlett (1941) 18 Cal. 2d 573 is
misplaced. The Supreme Court in Steele held that where a
statute requires an act to be performed “not later than” a
designated date, Code of Civil Procedure section 12a does not
apply. (Steele, at p. 574.) However, the CLRA requires a
business to make a correction offer “within” 30 days, falling
squarely within Code of Civil Procedure section 12a’s provision
for acts that must be performed “within a specified period of
time.”
15
148 [rejecting contention that Code Civ. Proc., § 12a only applies
to acts requiring access to a courthouse or other public office].)
Accordingly, Seidner made a timely correction offer under
section 1782, subdivision (b), when its attorney sent the draft
settlement agreement to Valdez’s attorney on Monday,
September 14, 2015.
D. Seidner’s Offer Was Not an Appropriate Correction Offer
Under the CLRA
Valdez contends that by conditioning relief on release of
claims not subject to the CLRA’s prelitigation notice
requirements and on compliance with other settlement terms,
including Seidner’s subjective approval of the vehicle’s condition,
Seidner’s settlement offer was not an appropriate correction offer
as contemplated by section 1782, subdivision (b). We agree.
Seidner’s draft settlement agreement contained a broad
release of known and unknown claims, including an agreement
that the parties release each other “from any and all past,
present, and future claims, demands, causes of action,
obligations, damages, injuries, liens, and liabilities, of any nature
whatsoever, relating to or arising out of the Action.” 14 In addition
to a release of claims, the draft settlement agreement contained a
covenant not to sue under which the parties and their attorneys
“agree never to commence or prosecute, nor voluntarily aid in the
commencement of prosecution of any claims, demands, causes of
action, obligations, damages, injuries, liens, and liabilities, of any
nature whatsoever, against the other parties hereto . . . , which
arise out of or which related in any way to any of the claims,
14 The draft settlement agreement defined “Action” as
Valdez’s “demand” in its CLRA notice to Seidner.
16
demands, causes of action, obligations, damages, injuries, liens,
and liabilities which comprise the subject matter of this
Agreement.” (Italics added.)
This broad release language and covenant not to sue would
have prohibited Valdez from asserting his section 1632, UCL, and
fraud claims and his claim for injunctive relief under the CLRA.
Yet Valdez had a right to bring those claims without first
providing notice under the CLRA. As to a CLRA claim, a timely
and appropriate correction under section 1782, subdivision (b),
only bars a claim for damages, not injunctive relief. (§ 1782,
subd. (b) [“no action for damages may be maintained under
Section 1780” if an appropriate correction offer is made (italics
added)] & subd. (d) [“An action for injunctive relief brought under
the specific provisions of Section 1770 may be commenced
without compliance with subdivision (a).”];15 Meyer, supra,
45 Cal.4th at p. 645 [“[S]ection 1782, subdivision (d) contemplates
the filing of a CLRA action for injunctive relief alone, and such
actions are not subject to the requirements of subdivisions (a) and
(b) of notice and allowance for voluntary correction.”]; Flores v.
Southcoast Automotive Liquidators, Inc. (2017) 17 Cal.App.5th
841, 850 (Flores) [“An action for injunctive relief under section
1770 may be filed without sending a notice under section 1782,
subdivision (a).”]; see Gonzales v. CarMax Auto Superstores, LLC
(9th Cir. 2017) 845 F.3d 916, 918 [defendant’s correction offer did
15 If a consumer files an action under section 1780 seeking
only injunctive relief, he or she may amend the complaint
without leave of court to seek damages after complying with the
requirements for notice and a correction offer under section 1782,
subdivisions (a) and (b). (§ 1782, subd. (d).)
17
not bar plaintiff’s recovery of attorney’s fees where plaintiff
sought only injunctive relief for violation of the CLRA].)
Here, Valdez sought injunctive relief under the CLRA and
UCL, prohibiting Seidner “from entering into lease agreements
without providing appropriate translations, prior to execution,
when negotiations are conducted primarily in a language other
than English . . . .” Injunctive relief is available under both the
CLRA and the UCL. (See McGill, supra, 2 Cal.5th at p. 955
[“public injunctive relief under UCL [and] CLRA . . . is relief that
has ‘the primary purpose and effect of’ prohibiting unlawful acts
that threaten future injury to the general public”]; Cruz v.
PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 316 [an
injunction under the UCL “is designed to prevent further harm to
the public at large rather than to redress or prevent injury to a
plaintiff”]; Broughton v. Cigna Healthplans (1999) 21 Cal. 4th
1066, 1080 [“[T]he evident purpose of the injunctive relief
provision of the CLRA is not to resolve a private dispute but to
remedy a public wrong.”].) Because Seidner’s draft settlement
agreement did not provide the requested injunctive relief, it was
not appropriate for Seidner to condition its correction offer on
release of Valdez’s claims for injunctive relief.16
In addition, as our colleagues in Division Five concluded in
Flores, a “reasonable correction offer prevent[s] [the plaintiff]
from maintaining a cause of action for damages under the CLRA,
but [does] not prevent [the plaintiff] from pursuing remedies
16 Contrary to Seidner’s contention, the holding in Benson is
not to the contrary. The court there declined to address whether
the plaintiff could maintain an action for injunctive relief
notwithstanding a CLRA correction offer because the parties did
not brief the issue. (Benson, supra, 239 Cal.App.4th at p. 1213.)
18
based on other statutory violations or common law causes of
action based on conduct under those laws.” (Flores, supra,
17 Cal.App.5th at p. 850.) As the Flores court observed,
“plaintiffs routinely plead fraud, UCL, and CLRA claims based on
similar allegations.” (Ibid.) Further, “[t]he remedies of the
CLRA are cumulative of other rights.” (Id. at p. 849.) Section
1752 provides, “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 procedures or remedies for any violation or
conduct provided for in any other law. [¶] . . . 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 common law or statutory cause of
action under the procedures and with the remedies provided for
in such law.”
Here, Valdez asserted a claim for violation of section 1632,
subdivision (b)(1), which provides in relevant part, “Any person
engaged in a trade or business who negotiates primarily in
Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in
writing, in the course of entering into [an agreement subject to
the provisions of section 2985.7 (Vehicle Leasing Act)], shall
deliver to the other party to the contract or agreement and prior
to the execution thereof . . . a translation of every term and
condition in that contract or agreement . . . .” (See Lopez v.
Asbury Fresno Imports, LLC (2015) 234 Cal. App. 4th 71, 77 [when
both parties use a foreign language to negotiate the transaction,
§ 1632 “prevents the seller from suddenly springing on the buyer
a contract written in English and expecting the buyer to sign it
without reviewing its terms”]; Reyes v. Superior Court (1981)
19
118 Cal. App. 3d 159, 161 [“section 1632 provides certain
contracts, leases, loans, and other agreements, if negotiated
primarily in Spanish, must . . . be provided in Spanish
translation”].) The Legislature enacted section 1632 “to increase
consumer information and protections for the state’s sizable and
growing Spanish-speaking population.” (§ 1632, subd. (a)(1).)
Section 1632, subdivision (k), provides for rescission of the
agreement as a remedy for a violation.
Valdez presented evidence the negotiations occurred in
Spanish, but Seidner did not provide him with a Spanish
language translation of the terms and conditions of the lease
agreement. In response to Valdez’s request for admissions,
Seidner admitted “a Spanish translation of the subject contact
was orally made to plaintiff before the plaintiff signed the
document but inadvertently no written translated document or
written Spanish language contract was provided to [Valdez].”
Seidner’s failure to provide a Spanish language translation of the
lease agreement as required under section 1632 constituted a
separate statutory violation, independent of the
misrepresentations alleged as part of Valdez’s CLRA claim.17
In addition, Valdez’s UCL claim—based on violations of the
CLRA and section 1632—was independently actionable. “The
UCL addresses ‘unfair competition,’ which ‘mean[s] and
include[s] any unlawful, unfair or fraudulent business act or
practice and unfair, deceptive, untrue or misleading advertising
and any act prohibited by [the false advertising law].’” (McGill,
17 Indeed, as Valdez conceded at the hearing, it does not
appear the CLRA would have required a Spanish language
translation. However, Valdez could seek injunctive relief under
the CLRA as to the other alleged misrepresentations.
20
supra, 2 Cal.5th at p. 954; accord, Zhang v. Superior Court (2013)
57 Cal. 4th 364, 370.) “By prohibiting unlawful business
practices, ‘“section 17200 ‘borrows’ violations of other laws and
treats them as unlawful practices” that the [UCL] makes
independently actionable.’” (De La Torre v. CashCall, Inc. (2018)
5 Cal.5th 966, 980; accord, Zhang, at p. 370.) “In addition, a
practice that is unfair or fraudulent may be the basis for a UCL
action even if the conduct is ‘not specifically proscribed by some
other law.’” (Loeffler v. Target Corp. (2014) 58 Cal. 4th 1081, 1125
(Loeffler); accord, Zhang, at p. 370.) “‘Actions for relief’ under the
UCL may be brought by various government officials and ‘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.)” (McGill, at p. 954; accord, Gutierrez v. Carmax
Auto Superstores California (2018) 19 Cal.App.5th 1234, 1265.)
The UCL provides for injunctive relief, restitution, and civil
penalties. (Bus. & Prof. Code, §§ 17203, 17206; De La Torre, at
p. 179.)18
Relying on the Fourth Appellate District’s decision in
Benson, Seidner contends its correction offer barred Valdez’s
section 1632, UCL, and fraud claims because they were
“inextricably intertwined” with his CLRA damages claim and
added no value. (See Benson, supra, 239 Cal.App.4th at p. 1210.)
In Benson, the plaintiff asserted claims against a car dealer
under the CLRA, Automobile Sales Finance Act (ASFA; § 2981 et
seq.), Vehicle Code, Song-Beverly Consumer Warranty Act
(§ 1790 et seq.), and UCL, as well as for negligent and intentional
18 Although Valdez’s fraud claims were based on the same
misrepresentations alleged in his CLRA cause of action, the fraud
claims were also separately actionable.
21
misrepresentations. (Benson, at p. 1204.) The plaintiff and car
dealer settled the action but agreed to litigate whether the
plaintiff was entitled to attorney’s fees as a prevailing party
under the CLRA in light of the dealer’s prelitigation correction
offer under the CLRA. (Benson, at pp. 1204-1205.) Although the
Court of Appeal acknowledged the remedies under the CLRA are
nonexclusive, it concluded the correction offer was appropriate
because the non-CLRA claims “were ‘inextricably intertwined
with the CLRA claim and based on the same conduct,’” and
“[s]ubstantial evidence supported the trial court’s exercise of
discretion in finding that the other claims had little or no
independent value.” (Benson, at p. 1210.)
As an initial matter, the court in Benson applied a
deferential substantial evidence standard of review in the context
of the plaintiff’s request for attorney’s fees. (Benson, supra,
239 Cal.App.4th at pp. 1207, 1210.) To the extent Benson may be
read to hold that a business may condition its correction offer on
a release of claims other than a claim for damages under the
CLRA, we conclude otherwise. As the Flores court stated, a
correction offer made under the CLRA does not bar a consumer
from seeking remedies for violations of other statutes or under
the common law based on conduct that violates those laws.
(Flores, supra, 17 Cal.App.5th at p. 850; see Loeffler, supra,
58 Cal.4th at p. 1125 [“Like the UCL, CLRA remedies are not
exclusive, but are ‘in addition to any other procedures or
remedies for any violation or conduct provided for in any other
law.’”].)
Although Flores was decided in the context of an appeal of
a judgment awarding the consumer damages for fraud and
injunctive relief under the UCL following a CLRA correction
22
offer, the same reasoning applies to the analysis of whether a
correction offer is appropriate under section 1782, subdivision (b).
A correction offer cannot require the consumer to release claims
that would not otherwise be barred under section 1782,
subdivision (b). That is precisely what Seidner’s proposed
settlement agreement required by demanding Valdez release his
section 1632, UCL, and fraud claims.19
To hold otherwise would lead to incongruous results. If
Valdez had not asserted a CLRA claim for damages, he could
have maintained his section 1632, UCL, and fraud claims
because the claims were not subject to the notice requirement
and provision for a voluntary correction under section 1782,
subdivisions (a) and (b). Yet under Seidner’s reasoning, once
Valdez joined these claims with a CLRA claim for damages, all
his claims were barred by a correction offer under section 1782,
subdivision (b). This broad reading of the preclusive effect of
section 1782, subdivision (b), is inconsistent with the
Legislature’s intent that the CLRA “be liberally construed and
applied.” (§ 1760; accord, McGill v. Citibank N.A., supra,
2 Cal.5th at p. 954.) In addition, Seidner’s reading of section
1782, subdivision (b), as a bar to all Valdez’s claims is contrary to
the language in section 1752 that “[i]f any act or practice
proscribed under this title also constitutes a cause of action in
19 We recognize many of the remedies available to Valdez
under section 1632, the UCL, and for fraud were duplicative of
the remedies available for violation of the CLRA. We do not
suggest Valdez will be entitled to double recovery at trial; rather,
he can pursue his claims under multiple statutes and common
law, leaving the determination of appropriate remedies to the
trial court at trial.
23
common law or a violation of another statute, the consumer may
assert such common law or statutory cause of action under the
procedures and with the remedies provided for in such law.”
Finally, Seidner’s correction offer improperly allowed
Seidner unilaterally to void the proposed settlement agreement if
it determined after an inspection that the vehicle was in an
unacceptable condition.20 Valdez does not dispute that if he
returned the vehicle with damage beyond normal wear and tear,
Seidner would be entitled to an offset for the damage. But
conditioning CLRA remedies on Seidner’s subjective
determination whether the vehicle was in an acceptable condition
rendered Seidner’s offer illusory. Thus, for this reason as well,
Seidner’s offer was not an appropriate correction offer under
section 1782, subdivision (b). (See MacQuiddy v. Mercedes-Benz
USA, LLC (2015) 233 Cal. App. 4th 1036, 1049-1050 [“Because of
the undefined and subjective nature of the term that [the dealer]
would repurchase the ‘undamaged’ car, we conclude the section
998 offer was at least ambiguous, and was therefore not valid.”].)
Seidner could have made an appropriate correction offer
had it offered simply to refund Valdez’s down payment and
monthly payments, pay off the outstanding loan balance, and pay
attorney’s fees and costs. Although Valdez would still have been
able to pursue his other claims, nothing would have prevented
Seidner from attempting to negotiate a separate settlement of
those claims. But Seidner’s effort to exact additional concessions
20 The draft agreement provided, “[Valdez] shall return the
Vehicle to [Seidner] as is, without damage or vandalism, save
normal wear and tear and the alleged nonconformities. . . . If
[Seidner] determines that the Vehicle is in unacceptable
condition, it may void this Agreement in its entirety.”
24
from Valdez as part of a global settlement ran afoul of sections
1752 and 1782, subdivisions (b) and (d), of the CLRA. Because
Seidner did not make an appropriate correction offer, it failed to
meet its burden of showing a complete defense to Valdez’s claims
to support the grant of summary judgment.21
DISPOSITION
The judgment is reversed, and the matter remanded with
directions to enter a new order denying Seidner’s motion for
summary judgment. Valdez is entitled to recover his costs on
appeal.
FEUER, J.
WE CONCUR:
PERLUSS, P. J.
SEGAL, J.
21 Because we conclude Seidner’s draft settlement agreement
was not an appropriate correction offer, we do not reach whether
the agreement’s provisions requiring confidentiality and denying
liability independently rendered the offer inappropriate.
25