Jason v. Pardini CA1/2 ( 2023 )

Filed 4/25/23 Jason v. Pardini CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
TRENT JASON,
Plaintiff and Appellant,
A165974
v.
MARK AUGUST PARDINI et al., (Mendocino County
Super. Ct. No. 22CV00306)
Defendants and Respondents.
Representing himself, plaintiff Trent Jason filed a lawsuit against
defendants Mark Pardini and James Purcell after the clothes washing
machine he purchased at Pardini Appliance stopped working. Defendants
offered to replace Jason’s washing machine, but he rejected their offer and
insisted they repair it instead because he was concerned he would then no
longer have the benefit of an ongoing warranty. In his 82-page verified first
amended complaint, Jason asserted multiple claims based on storefront
window lettering that read: “HOME OF THE 10 YEAR WARRANTY* ON
ANY APPLIANCE OVER $499 OR MORE” with the asterisk phrase
“*MAJOR COMPONENT WARRANTY” in smaller letters below. He claimed
that this sign created an express warranty to repair his appliances if they
failed. He also alleged that defendants misrepresented the products as
“General Electric” appliances because General Electric Appliances had been
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acquired by Haier, despite also alleging that Haier owned the right to use
this name.
Defendants demurred. They explained that Jason was provided (1) a
one-year warranty from the manufacturer; and (2) a 10-year limited
warranty from Associated Service Corporation (ASC) that covered the main
drive motor of the machine. Defendants argue that the storefront window
referenced both the manufacturer and ACS warranties; the window was not a
separate express warranty to repair any of Jason’s appliances if they failed
within 10 years after his purchase.
The trial court issued a short order sustaining defendants’ demurrer
without leave to amend. The record before us does not include a reporter’s
transcript of the hearing. In this appeal, Jason argues his amended
complaint should have survived demurrer. While the trial court ought to
have articulated its reasoning as to Jason’s claims in its written ruling,
rather than issuing a bare-bones order lacking any discussion, we disagree
with Jason and will affirm.
BACKGROUND
Jason purchased a front load washing machine, dryer, and dishwasher
from Pardini Appliance in 2019. Each appliance had a “GE” trademark and
“GE Appliances” sticker with model and serial numbers. Defendant Mark
Pardini owns the store, and defendant James Purcell is the sales manager
who assisted Jason with the purchases. As noted above, at the time of these
purchases, the storefront window of Pardini Appliance had lettering that
read: “HOME OF THE 10 YEAR WARRANTY* ON ANY APPLIANCE
OVER $499 OR MORE” with the asterisk phrase “*MAJOR COMPONENT
WARRANTY” in smaller letters below. Jason paid over $499 for each of the
three appliances.
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Jason alleged, “Purcell spent relevant time representing to Plaintiff
that he was an expert in the appliance sales business, and that he
represented to Plaintiff that these alleged General Electric appliances were
the best on the market, and that they were known to last twenty years, or
more; and this is what Defendant Pardini was offering a ten years extended
warranty on all appliances sold for $499 or more.” He further alleged, “It was
this specific inducement which caused consumers, including Plaintiff, to rely
on these extended warranties in making purchases of appliances from
Pardini and Purcell.” Jason continued, “In addition, with Purcell as the sole
sales manager, he also verbally confirmed that written warranty to Plaintiff,
ensuring [sic] to Plaintiff that if any appliance which Plaintiff purchased at
this commercial business location, these purchased appliances included that
extended ten years duration warranty, beyond any written warranty which
the manufacturer provided.”
Jason repeatedly referred to the window sign in his complaint as “the
written representation” of defendants’ alleged 10-year warranty on the
appliances he purchased. Jason also alleged that those appliances each had a
removable sticker on it saying, “limited warranty.” But the amended
complaint contained other allegations regarding warranties provided to
Jason. First, Jason alleged that he received a one-year manufacturer’s
warranty. A copy of the appliance manual describing this warranty was
attached as an exhibit to the amended complaint.
Second, Jason alleged that he received a 10-year written warranty from
ASC titled “ ‘ADDITIONAL EXTENDED LIMITED WARRANTY’ ” that
covered one itemized component in each appliance. A copy of a postcard
addressed from ASC to Jason and dated June 2, 2020 was attached as an
exhibit to the amended complaint. The postcard states that “[i]f at any time
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after the expiration of the manufacturer’s limited warranty, but NOT MORE
THAN TEN (10) YEARS AFTER THE DATE OF PURCHASE OF THIS
APPLIANCE, the component as specified under this certificate should
become defective, except as stated below, you will be entitled to receive free of
charge a replacement component of the same or substantially the same
quality as the original manufacturer would have furnished during their
limited warranty period.” The component listed for a front load automatic
washer is the “Main Drive Motor.”
The amended complaint also attached other exhibits, including Jason’s
receipt for his purchases of the three appliances. Each of those receipts
included text that read: “Federal Law provides that the Buyer shall give the
Seller an opportunity to make necessary repairs to merchandise.
Replacement will only be allowed under the terms of the manufacturer’s
warranty.”
Jason alleged that his washing machine “failed to operate” 16 months
after he purchased it. He believed the issue involved the “main bearing
attached to the rear of the washing machine drum.” Jason believed the
manufacturer’s warranty was no longer applicable, as it extended only one
year from the date of purchase.
When Jason tried to contact General Electric Corporation about the
“failure of the washing machine to operate,” Jason says he “discover[ed] that
General Electric Corporation was not the manufacturer of the washing
machine. Instead, “after completing extensive research,” Jason “discovered
that on June 6, 2016, Qingdao Haier Company, Limited, a Shanghai stock
exchange listed company that is 41 percent owned by Haier Group . . . and
General Electric Corporation had announced the signing of closing documents
for the acquisition of General Electric Appliances . . . from General Electric
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Corporation.” Jason alleged that Haier owned the right to use the name
“General Electric Appliances.” The Haier acquisition of GE Appliances had
taken place three years before Jason purchased his washer. Jason
nonetheless alleged that, had he known that the appliances were made by a
Chinese corporation, he would not have purchased them.
Jason contacted Pardini Appliance in June 2021, and a service
technician came out to inspect his washing machine. According to Jason, the
technician prepared a $1,400–$1,600 estimate for the repair and had Jason
sign it, but did not give Jason a copy. The technician gave Jason a service
invoice indicating that the issue was “possibly main bearing or motor
bearing.”
Jason alleged that he was contacted by Pardini in July 2021, who
indicated that GE would replace his washer and provide a one-year warranty.
Jason rejected the offer and explained that he wanted the 10-year warranty
he believed Pardini had provided him. He wanted Pardini to repair the
machine, instead of replacing it. Jason claimed his flooring had been
damaged by the original installation and so, by his reasoning, presumably the
floor might get damaged again if the machine was replaced instead of
repaired. Pardini Appliance subsequently indicated it would “not be taking
any actions on [Jason’s] behalf.”
Jason filed a lawsuit against Pardini and Purcell.1 The verified first
amended complaint sought two injunctions—one on behalf of Jason and the
other on behalf of all others similarly situated under California’s Unfair
1The service technician was also named as a defendant, but Jason later
agreed to dismiss him.
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Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.).2 Jason also
alleged causes of action for (1) breach of contract; (2) breach of implied
covenant of good faith and fair dealing; (3) false promise; (4) deceit;
(5) constructive fraud; (6) misrepresentation; (7) concealment; (8) violations of
California’s False Advertising Law (FAL) (§ 17500 et seq.); (9) violations of
the Unfair Trade Practices Act (UPA) (§ 17000 et seq.); (10) collusion;
(11) failure to provide written estimate for repairs; and (12) respondeat
superior. Defendants demurred. They argued Jason lacked standing to seek
injunctive relief on behalf of what amounted to a class. They also argued that
Jason failed to state any of his other claims as a matter of law. Defendants
moved to strike various portions of the amended complaint, including the
petition for an injunction on Jason’s own behalf.
The trial court sustained defendants’ demurrer without leave to amend,
and deemed the motion to strike moot. The order does not detail the trial
court’s reasoning, and the record does not contain any reporter’s transcript of
the hearing. Jason appealed.
DISCUSSION
I. Appealability and Standard of Review
Jason argues that his amended complaint should have survived
demurrer. We begin by addressing appealability. The notice of appeal refers
to a judgment of dismissal after this order, but the record contains no such
judgment. While an order sustaining a demurrer is “neither appealable per
se nor as a final judgment,” we may deem the order to incorporate a
judgment of dismissal. (Molien v. Kaiser Foundation Hospitals (1980) 27
Cal.3d 916, 920.) We will do so here in the interests of justice.
2 Further undesignated statutory references are to the Business and
Professions Code.
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“In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) We review the amended complaint de novo to determine
whether it “alleges facts sufficient to state a cause of action under any legal
theory or to determine whether the trial court erroneously sustained the
demurrer as a matter of law.” (Aguilera v. Heiman (2009) 174 Cal.App.4th
590, 595.) We construe the amended complaint in a reasonable manner and
assume the truth of properly pleaded factual allegations that are not
inconsistent with other allegations, exhibits, or judicially noticed facts.
(Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015.) We need not accept
as true, however, contentions, deductions, or conclusions of fact or law.
(Blank, at p. 318.) Jason bears the burden of demonstrating that the trial
court erred. (Aguilera, at p. 595.)
With this framework in mind, we analyze Jason’s arguments across five
categories in the amended complaint: (1) requests for injunctive relief;
(2) breach of contract claim; (3) FAL and UPA claims; (4) claims sounding in
fraud; and (5) other causes of action.
II. Requests for Injunctive Relief
Jason’s amended complaint included two “petitions” for injunctions.
First, Jason sought an injunction requiring defendants to “comply with the
terms and conditions of the contracts” related to the appliances Jason
purchased, including the alleged 10-year storefront window warranty. Jason
argues that the trial court wrongly included this request in its ruling because
defendants did not demur to it. Defendants did, however, move to strike this
particular request for relief, and so it was properly before the trial court. We
therefore consider its merits. (Contra In re Aaron B. (1996) 46 Cal.App.4th
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843, 846 [“ ‘A party is precluded from urging on appeal any point not raised
in the trial court’ ”].)
Injunctive relief is a remedy—it is not a separate cause of action.
(Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425,
433, fn. 8.) We agree with defendants that Jason’s attempt to petition for
injunctive relief as an independent claim for relief was improper. Jason is
essentially seeking specific performance on what he alleges to be his contract
with Pardini, and so striking Jason’s improper “petition” for an injunction
would not deprive him of a remedy, were he to prevail on his contract claim.
We address Jason’s contract claim below.
Second, Jason sought an injunction “on behalf of others similarly
situated,” which he defined to include consumers who had made an appliance
purchase in the past four years that were also subject to the alleged 10-year
storefront window warranty. Jason also sought reimbursement for
consumers who had paid for service calls, parts, labor, or replacement
appliances during that period. Citing the UCL, Jason alleged he could seek
such relief “on behalf of consumers who were injured” because he was “one of
those persons injured in the same manner as all those consumers similarly
situated.” Defendants demurred to this petition on the ground that Jason—a
litigant representing himself and who is not a licensed attorney—cannot
pursue claims on behalf of others. (Drake v. Superior Court (1994) 21
Cal.App.4th 1826, 1830 [explaining that since the passage of the State Bar
Act in 1927, persons may not practice law for another in California unless
they are active members of the State Bar].)
Jason argues that he is not attempting to pursue class claims. Rather,
he contends he is seeking public injunctive relief as described in McGill v
Citibank, NA (2017) 2 Cal.5th 945. The analogy is inapt. McGill explained
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the difference between public injunctive relief—that “ ‘by and large’ benefits
the general public” and “benefits the plaintiff, ‘if at all,’ only ‘incidental[ly]’
and/or as ‘a member of the general public’ ”—and private injunctive relief,
which “primarily ‘resolve[s] a private dispute’ between the parties,”
“ ‘rectif[ies] individual wrongs,’ ” and “benefits the public, if at all, only
incidentally[.]” (Id. at p. 955.) In other words, public injunctive relief under
the UCL “has ‘the primary purpose and effect of’ prohibiting unlawful acts
that threaten future injury to the general public.” (McGill, at p. 955; see also
Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 227.) “Relief that has the
primary purpose or effect of redressing or preventing injury to an individual
plaintiff—or to a group of individuals similarly situated to the plaintiff—does
not constitute public injunctive relief.” (McGill, at p. 955.)
The petition here falls into the category of private injunctive relief. It
did not ask defendants to remove the window sign or rewrite it. Instead, it
sought relief for a group of individuals alleged to have suffered the same
injury: non-compliance with the 10-year storefront window warranty.
In sum, the petition sought an injunction on behalf of a subset of
consumers, but Jason is foreclosed from pursuing such a remedy because he
is representing himself and he is not an attorney. (Drake v. Superior Court,
supra, 21 Cal.App.4th at p. 1830.) Given the availability of narrowly tailored
relief that would stop the allegedly unfair business practices or false
advertising at issue, Jason may not pursue what amounts to class-based
relief without securing adequate representation. (McGhee v. Bank of America
(1976) 60 Cal.App.3d 442, 450 [adequacy of representation depends upon
whether attorney is qualified to conduct proposed class litigation].) We
conclude the trial court did not err in sustaining defendants’ demurrer to this
petition for injunctive relief.
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III. Breach of Contract Claim
Jason concedes, in his briefing on appeal, that his breach of contract
claim is premised solely on the Pardini Appliance storefront window sign.
The amended complaint did not allege any breach of the one-year
manufacturer warranty or the 10-year limited ASC warranty, and does not
describe any other contract. Instead, Jason alleged that the storefront
window sign was either the entire contract or was part of the contract for his
purchase of the appliances.
Defendants argued on demurrer that Jason was only offered the
manufacturer and ASC warranties. They argued that the storefront window
sign did not amount to a written warranty, as it did not attempt to
comprehensively describe any such warranty. On appeal, defendants argue
that the storefront sign simply referenced the manufacturer and ASC
warranties. Jason responds that his allegations are sufficient at the pleading
stage and that defendants cannot succeed on demurrer by offering a
“competing” interpretation of the contract.
The law Jason relies upon does not support his contract claim. The
amended complaint primarily cites the Song-Beverly Consumer Warranty Act
(Song-Beverly Act) (Civ. Code, § 1790 et seq.), which sets out the
requirements for an express warranty for personal, family, or household
consumer goods. (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 19.) Civil
Code section 1793.1, subdivision (a)(1) states: “Every manufacturer,
distributor, or retailer making express warranties with respect to consumer
goods shall fully set forth those warranties in simple and readily understood
language, which shall clearly identify the party making the express
warranties, and which shall conform to the federal standards for disclosure of
warranty terms and conditions . . . .” The amended complaint also cites
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section 2313, subdivision (1)(a) of the Uniform Commercial Code, which
provides: “Any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation
or promise.”
Jason did not (and cannot) use the storefront window sign to
sufficiently allege an express warranty for this claim. (See Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142 [“In order to plead a
cause of action for breach of express warranty, one must allege the exact
terms of the warranty”].) The sign objectively fails the requirements for a
written warranty under section 1793.1 of the Civil Code. Even accepting the
inference Jason advances that the word “HOME” could mean Pardini
Appliance, the sign does not “clearly identify” the party making the alleged
warranty. (Civ. Code, § 1793.1.)
Moreover, the word “HOME” establishes that the storefront sign is not
itself an offer or a promise, but a marketing reference to the warranties being
provided on appliances sold at the store. Nor does the storefront sign “fully
set forth” the terms of a “third” warranty as Jason alleges. (Civ. Code,
§ 1793.1.) For example, the sign does not say what a “major component
warranty” might actually entail. Most importantly, nothing in the sign
supports Jason’s claim that it created a warranty to repair a defective part in
an appliance, rather than replace a broken appliance. Any claim that the
sign is, by itself, an express contractual offer fails for the same reason. There
is nothing suggesting any promise to repair, rather than replace, an
appliance.
Indeed, the receipt attached to the amended complaint contains
language that contradicts any such allegations. The text explicitly
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contemplates “Replacement” of the machine under the terms of the
manufacturer’s warranty. We also note Jason contradicts his breach of
contract allegations more generally in other parts of his amended complaint.
In connection with the FAL claim, Jason alleged that defendants posted the
storefront window sign “when in fact no ten years warranty was ever
provided, or intended to be provided, to any of those customers who
purchased those appliances, including those sold to Plaintiff,” and “[t]here
never was any ten years duration extended warranty on any of those
appliances that these two named Defendants sold to Plaintiff[.]”
In sum, the statement “HOME OF THE 10 YEAR WARRANTY*
(*MAJOR COMPONENT WARRANTY) ON ANY APPLIANCE OVER $499
OR MORE” is not an effort to set out a written warranty as required by
section 1793.1 of the Civil Code; it is storefront marketing referring to
general policy (Civ. Code, § 1791.2, subd. (c)), and does not obligate Pardini
Appliance (or anyone else) to repair a defective part in an appliance, rather
than replace the appliance. Jason’s amended complaint details the 10-year
limited warranty he actually received from ACS on the main drive motor
component, which is entirely consistent with the “limited” warranty sticker
on his machine.
On demurrer, a court may decline to accept a plaintiff’s allegations
regarding the terms of a written contract where the language of that contract
“ ‘unambiguously negates beyond reasonable controversy the construction
alleged in the body of the complaint.’ ” (George v. Automobile Club of
Southern California (2011) 201 Cal.App.4th 1112, 1130.) We will do so here,
and conclude the trial court did not err in sustaining defendants’ demurrer to
the breach of contract claim.
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IV. FAL and UPA Claims
The amended complaint asserted that defendants’ advertisement of the
alleged storefront window warranty constituted a violation of section 17500 of
the FAL and a violation of the UPA.3
As a preliminary matter, the amended complaint sought relief under
sections 17070 to 17906 of the UPA (injunctive relief and monetary damages)
but failed to allege any particular provision of the UPA violated by
defendants’ conduct. Nor can we identify one. (§§ 17040–17044 [prohibiting
certain conduct related to locality discriminations, sales below cost, and loss
leaders].) But as Jason contends, he has both UPA and UCL unfair practices
claims, and defendants demurred under the UCL, we also address the
sufficiency of this cause of action under the UCL.
3 Jason included additional allegations under his FAL cause of action—
Pardini’s fictitious business name paperwork with the California Secretary of
State was somehow misleading, defendants advertised themselves as more
knowledgeable about appliances than they really are, the Pardini Appliance
Web site was misleading because it says the store was a “BrandSource Dealer
of the Year” without details about the award and had “100% Customer
Satisfaction” contrary to unidentified “Yelp” reviews—but explicitly
disclaimed them as a basis for the claim because he did not rely on them and
they did not cause him injury; they were instead “simply to show to the jury
the depth of the fraud which [Pardini] has gone” to “defraud the general
public” and “exploit the consumers’ trust and confidence in his business
activity.”
Jason also included additional allegations under his UPA claim
regarding defendants’ alleged misrepresentation of Haier-manufactured
appliances as “GE” appliances. We conclude those allegations are insufficient
to state a claim because they are contradicted by his allegation that Haier
owned the right to use the name “General Electric Appliances.” (Hendy v.
Losse (1991) 54 Cal.3d 723, 742–743 [verified complaint is vulnerable to
demurrer when it “ ‘ “contains allegations destructive of a cause of
action” ’ ”].)
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Section 17500 of the FAL provides, “It is unlawful for any person, firm,
corporation or association, or any employee thereof with intent directly or
indirectly to dispose of real or personal property or to perform services,
professional or otherwise, or anything of any nature whatsoever or to induce
the public to enter into any obligation relating thereto, to make or
disseminate or cause to be made or disseminated before the public in this
state, . . . any statement, concerning that real or personal property or those
services, professional or otherwise, or concerning any circumstance or matter
of fact connected with the proposed performance or disposition thereof, which
is untrue or misleading, and which is known, or which by the exercise of
reasonable care should be known, to be untrue or misleading, or for any
person, firm, or corporation to so make or disseminate or cause to be so made
or disseminated any such statement as part of a plan or scheme with the
intent not to sell that personal property or those services, professional or
otherwise, so advertised at the price stated therein, or as so advertised.” The
UCL prohibits “unfair competition” and defines the term as “any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1 (commencing
with Section 17500) of Part 3 of Division 7 of the Business and Professions
Code.” (§ 17200.)
Defendants demurred to these two claims on the ground that California
consumer protection statutes are governed by the “reasonable consumer” test
and Jason’s claims do not meet this test. We agree. Courts evaluate FAL
and UCL “unfairness” claims using the “reasonable consumer test.” (Lavie v.
Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 504.) In so doing, the
court asks whether “a significant portion of the general consuming public or
of targeted consumers, acting reasonably in the circumstances, could be
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misled.” (Id. at p. 508.) While we must exercise caution and draw all
reasonable inferences in Jason’s favor at the pleading stage (Kruss v. Booth
(2010) 185 Cal.App.4th 699, 713), we nonetheless conclude that the amended
complaint cannot withstand even the barest scrutiny under this test. The
amended complaint may be lengthy, but volume is not a substitute for
substance.
We note at the outset that the parties appear to be mired in a debate
about the characterization of Jason’s claims: whether he alleges that the
storefront window sign was a “limited” or “unlimited” warranty. Jason
argues that he has always acknowledged the sign was a warranty limited to
major components. That debate, however, is immaterial. The key question
here is whether Jason has alleged sufficient facts to support his cause of
action, such that a reasonable consumer seeing the sign could have
understood it to provide him or her with the right to demand defendants
repair an appliance if it broke over the next 10 years, rather than replace the
machine with a new one.
The answer is no. As explained above, nothing about the sign suggests
that a consumer is obtaining such a warranty or could force such a result. No
reasonable consumer seeing it would purchase an appliance with the
understanding that he or she could later reject a brand new machine and
insist that the retail store instead repair the broken one. The reference to
replacement in the purchase receipt, as well as the allegation that defendants
attempted to honor whatever warranty existed for Jason’s machine by
replacement, support this conclusion. Nor do we see how a reasonable
consumer would understand the store window sign, even accepting Jason’s
interpretation of the word “HOME,” to create some warranty beyond the
actual warranty issued by ASC warranty (consistent with the “limited”
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warranty sticker on the machine). We again note that Jason’s claims are
undermined by his allegations that “no ten years warranty was ever
provided” and “[t]here never was any ten years duration extended warranty
on any of those appliances that these two named Defendants sold to
Plaintiff[.]” Even at the pleading stage, it is apparent that no reasonable
consumer would have the understanding Jason alleges he had under the
circumstances alleged in his amended complaint.
We next address defendants’ challenge to the UPA claim to the extent
it was asserted on behalf of a class. While Jason disavows any class claim,
the cause of action refers to “unsuspecting consumers” and seeks injunctive
relief for all appliances sold for more than $499 in the past four years. It is
unclear what sort of injunction Jason had in mind but, for the same reasons
described above, Jason cannot pursue class claims under this cause of action
as a litigant in pro. per. (See In re Tobacco II Cases (2009) 46 Cal.4th 298,
313 [persons pursuing representative actions for unfair business practices
must satisfy class action requirements, including adequacy of
representation].) To the extent he sought individualized relief, or an
injunction that would simply address the allegedly unfair business practice at
issue (e.g., by requiring Pardini Appliance to remove the warranty signage),
Jason would have had standing if his claims could withstand scrutiny.
Finally, we note that Jason sought not only injunctive relief, but also
monetary damages (including treble damages) and punitive damages through
his FAL and UPA causes of action. Injunctive relief, directed at eliminating
the alleged false advertising (the window sign), is available under section
17535 of the FAL. Monetary damages and penalties, however, are not
available for a private litigant like Jason. (§§ 17535.5, subd. (b), 17536,
subd. (a); Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663,
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695.) To the extent Jason asserts an unfair practices claim under the UCL, a
plaintiff must have “suffered injury in fact and [have] lost money or property
as a result of the unfair competition” in order to have standing. (§ 17204.) A s
a private litigant, Jason may recover restitution and seek injunctive relief
(tailored to the alleged unfair business practice), but not damages or
penalties. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1144.)
In sum, we conclude the trial court did not err in sustaining
defendants’ demurrer to the FAL and UPA claims.
V. Claims Sounding in Fraud
Defendants demurred to Jason’s causes of action for false promise,
deceit, constructive fraud, misrepresentation, concealment, and collusion on
the ground that he did not and could not plead those claims with
particularity. These claims rely on allegations related to two types of
conduct: (1) defendants’ alleged representation of Haier-manufactured
appliances as “GE” appliances; and (2) defendants’ alleged provision of the
storefront window warranty.
The first type of alleged conduct is insufficient to support these claims
because, as explained above, Jason acknowledges in the amended complaint
that Haier owned the right to use the name “General Electric Appliances.” It
remains unclear how retailers like defendants would be exposed to liability
based on GE Appliance’s own branding. Moreover, Jason’s claims regarding
this conduct depend on the allegation that, had he known that the appliances
were made by a Chinese corporation, he would not have purchased them.
But the amended complaint does not allege any representation made to Jason
by any defendant regarding the national origin of the washing machine he
purchased, let alone any misrepresentation or false statement.
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Jason’s remaining allegations related to the storefront window are
insufficient because these claims are all restatements of a claim for fraud.
“In California, fraud must be pled specifically; general and conclusory
allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
645.) “ ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not
ordinarily be invoked to sustain a pleading defective in any material
respect.’ ” ’ ” (Ibid.) As a preliminary matter, Jason’s fraud claims require
him to allege that defendants made a representation that was false or untrue,
or that he was deceived by a representation through concealment of some
material facts. (See, e.g., Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 973 [“ ‘ “Promissory fraud” is a subspecies of fraud and deceit.
A promise to do something necessarily implies the intention to perform;
hence, where a promise is made without such intention, there is an implied
misrepresentation of fact that may be actionable fraud’ ”]); Thrifty-Tel, Inc. v.
Bezenek (1996) 46 Cal.App.4th 1559, 1567 [misrepresentation element of
fraud may be made in writing, orally, or implied by conduct]; Boschma v.
Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [action for fraud and
deceit based on concealment requires defendant to have concealed or
suppressed a material fact he or she was required to disclose]). Jason
attempts to allege these elements through the storefront window sign. We
are not persuaded that Jason has satisfied this pleading standard because, as
explained above, the language of the sign—including its lack of exact terms
and use of the words “HOME OF”— did not convey a separate promise or
offer. It is unclear how Jason can sufficiently plead a misrepresentation
without sufficiently pleading that the storefront window sign constitutes the
representation he tries to infer.
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Moreover, the amended complaint offers only bare conclusions
regarding defendants’ purported intent to induce Jason into believing they
were providing him with a warranty to repair they would not honor (or that
did not exist, as Jason suggested in his FAL allegations). Jason simply
concludes that defendants “practiced a deceit with the intent to defraud.”
This also fails the standard of pleading with particularity.
While a claim for constructive fraud pursuant to Civil Code section
1573 does not require fraudulent intent, it does require the existence of a
fiduciary relationship between the parties. (Younan v. Equifax Inc. (1980)
111 Cal.App.3d 498, 516, fn. 14.) A claim for fraudulent concealment also
requires the existence of a legal duty to disclose the concealed fact to the
plaintiff. (Boschma v. Home Loan Center, Inc., supra, 198 Cal.App.4th at
p. 248.) Jason has not and cannot allege the existence of such a legal
relationship here. The trial court did not err in sustaining defendants’
demurrer to the FAL and UPA claims.
VI. Other Causes of Action
We conclude there was no error in sustaining defendants’ demurrer as
to any of Jason’s three remaining causes of action.
First, defendants demurred to the claim for breach of the implied
covenant of good faith and fair dealing on the ground that it was superfluous
to the breach of contract claim. “If the allegations do not go beyond the
statement of a mere contract breach and, relying on the same alleged acts,
simply seek the same damages or other relief already claimed in a companion
contract cause of action, they may be disregarded as superfluous as no
additional claim is actually stated.” (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)
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Jason appears to argue that the two claims are brought under different
grounds, but does not articulate any material difference. Jason seems to
argue that the breach of implied covenant claim (and its related request for
emotional distress damages) is based on defendants’ alleged
misrepresentation of Haier-manufactured appliances as “GE” appliances.
Again, those claims are contradicted by his allegation regarding Haier’s
permissible use of the name, and it is unclear how its ownership of GE
Appliances would trigger liability for retailers like defendants. Nor are we
persuaded by Jason’s argument that his implied covenant claim somehow
triggers defendants’ liability for punitive damages. “[I]n noninsurance cases
such as this one, breach of the implied covenant of good faith and fair dealing
will not give rise to punitive damages.” (Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1054–1055.)
Second, defendants demurred to Jason’s cause of action for failure to
provide written estimate for repairs on the grounds that such an estimate
could not be provided during the initial service call and no repairs had
occurred. Section 9844 states: “An initial written estimate for the cost of
repair shall be given to the customer before performing any repairs.” The
amended complaint alleged that no actual repairs were done on Jason’s
machine. Accordingly, there was no performance of repair to trigger any
liability under section 9844.
Third, defendants demurred to Jason’s claim for “respondeat superior”
because respondeat superior is simply a theory of vicarious liability, not a
cause of action. Again, we agree. To support this cause of action, the
amended complaint merely alleges that Pardini is liable for the wrongful
conduct of his employee Purcell. Such allegations “do not constitute a
separate cause of action, but attach to the claim for recovery against the
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employer under the theory of vicarious liability.” (CRST, Inc. v. Superior
Court (2017) 11 Cal.App.5th 1255, 1264.)
In sum, we affirm the trial court’s decision sustaining defendants’
demurrer to Jason’s verified first amended complaint.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1)–(2).)
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_________________________
Markman, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Miller, J.
Jason v. Pardini et al. (A165974)
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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