2019-05

Duane Young v. Toyota Motor Sales, U.S.A. ( 2019 )

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                                                                           FILED
MAY 23, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DUANE YOUNG, an individual, and                 )
all those similarly situated,                   )        No. 35842-9-III
)
Appellant,             )
)
v.                                 )        PUBLISHED OPINION
)
TOYOTA MOTOR SALES, U.S.A.,                     )
a California corporation,                       )
)
Respondent.            )
SIDDOWAY, J. — Duane Young’s negligent misrepresentation and Consumer
Protection Act1 (CPA) claims against Toyota Motor Sales were dismissed following a
bench trial. He appeals dismissal of the CPA claim, challenging the trial court’s legal
conclusions. Because the trial court’s factual findings support its conclusion that Mr.
Young failed to carry his burden of proof on at least two elements of his claim, we
affirm.
1
Washington’s Consumer Protection Act is codified at chapter 19.86 RCW.
No. 35842-9-III
Young v. Toyota Motor Sales
FACTS AND PROCEDURAL BACKGROUND
In December 2013, several months after purchasing a 2014 model year Toyota
Tacoma truck from a dealer in Burlington, Washington, Duane Young received a letter
from Toyota. The letter stated it had recently come to Toyota’s attention that the
Monroney label2 on the vehicle he purchased might have indicated that an outside
temperature gauge was included in the vehicle’s rearview mirror. As the letter disclosed,
that feature was not available on any 2014 model Tacoma. The letter apologized for the
mistake and any confusion it might have caused. It offered to compensate Mr. Young
with a cash reimbursement of $100.
In January 2014, Mr. Young communicated with a customer service representative
for Toyota named Jeffrey Moore, expressing his dissatisfaction with the reimbursement
offer. By the end of January, Mr. Moore had offered to install a rearview mirror with an
outside temperature gauge as an aftermarket part, but because it would not be factory-
installed, the three-year 36,000 mile warranty on many of the truck’s other parts would
not apply. Still dissatisfied, Mr. Young contacted an attorney, after which Toyota offered
to pay him $500 to resolve his complaints. He declined the offer.
2
“A Monroney label, or a window sticker . . . is a label that is required in the
United States to be displayed on all new vehicles, and it includes certain official
information; for example, standard equipment, optional equipment, crash test ratings,
fuel economy info., and a manufacturer’s suggested retail price.” Report of Proceedings
at 251.
2
No. 35842-9-III
Young v. Toyota Motor Sales
Arbitration proceedings with Toyota led to an award of a buyback by Toyota for
over $27,000. Mr. Young rejected the buyback because he thought he could sell the truck
for more. He was right; he eventually sold the truck for $30,500.
In May 2015, Mr. Young filed the lawsuit below. He sought to pursue it as a class
action and asserted claims of common law fraud, negligent misrepresentation, and for
violation of the CPA. The trial court denied class certification.
Toyota moved for summary judgment on all of Mr. Young’s claims; he responded
with a cross motion for summary judgment on his CPA claim. In ruling on the motions,
the trial court dismissed the fraud claim but declined to grant either party’s motions on
the negligent misrepresentation and CPA claims, which proceeded to a bench trial.
Trial
At the bench trial, Mr. Young testified that the outdoor temperature gauge was an
important feature to him and he was misled into believing it would be included in the
limited package by a Monroney label and by the “Build-a-Tacoma” feature on Toyota’s
website. The “Build-a-Tacoma” feature enables a consumer to select the features of the
truck he or she is interested in purchasing.
In the defense case, Toyota called as a witness its distribution pricing
administrator, who testified that in early September 2013, an audit of the Monroney label
for the 2014 model Tacoma with the limited package revealed that it erroneously
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No. 35842-9-III
Young v. Toyota Motor Sales
identified the truck’s rearview mirror as including an outside temperature gauge.3 The
2013 model Tacoma had included such a temperature gauge, but it had been removed
from the limited package for the 2014 model. Toyota presented evidence that in pricing
the 2014 limited package the cost of that feature was removed, so purchasers of the
limited package never paid for it. It also presented evidence that the cost of the feature
was $10.
The pricing administrator testified that the date on which Toyota first started
wholesaling 2014 model Tacomas to dealers was September 4, 2013, so catching the
error in the early September audit enabled it to substitute correct labels on most of the
2014 limited package models before they were shipped to dealers. In mid-October 2013,
however, Toyota employees realized there might be vehicles in the field that had been
shipped with incorrect Monroney labels. The pricing administrator testified that on
October 22, 2013, she notified field offices of the possibility of incorrect labels, and that
corrected labels would be available to print at their field offices the next day. The e-mail
directed the field office to send the corrected Monroney labels to dealers in their region.
3
Employees also discovered that the limited package had been described as
having a postage-stamp size monitor for its backup camera in the rearview mirror. The
monitor had been moved to the dashboard and enlarged. Mr. Young concedes that this
was an improvement.
4
No. 35842-9-III
Young v. Toyota Motor Sales
The general manager for Toyota’s Customer Experience Center testified that she
learned in late October 2013 that incorrect information about the temperature gauge had
been entered into the “Build-a-Tacoma” program on Toyota’s website. She testified that
the “Build-a-Tacoma” website information was corrected in early November 2013.
Toyota presented evidence that a total of 59 2014 model Tacomas with the limited
package were sold in the state of Washington, and only three were sold before Toyota
realized there was a mistake with the Monroney label. Of the remaining 56 trucks, 41
were sold after January 30, 2014 (roughly three months after the mistake had been
corrected) and 31 were sold after May 1, 2014 (roughly six months after the mistake had
been corrected).
Toyota’s witnesses testified that letters like the one Mr. Young received in
December 2013 were sent to 147 individuals that it identified as the only consumers who
possibly purchased the limited package after seeing misleading information. There was
no evidence presented that anyone other than Mr. Young claimed to have been misled.
At the conclusion of the bench trial, the court took the matter under advisement,
issuing a lengthy and detailed memorandum decision three months later. It found “at
least seven areas” where it “question[ed] Mr. Young’s credibility.” Clerk’s Papers (CP)
at 411. It concluded that Mr. Young had not proved either of his two remaining claims
and directed Toyota’s counsel to prepare formal findings and conclusions.
5
No. 35842-9-III
Young v. Toyota Motor Sales
The findings and conclusions thereafter presented and entered incorporated all of
the factual findings articulated in the court’s memorandum decision. They concluded
that Mr. Young failed to carry his burden of proving multiple elements of both of his
claims. Mr. Young appeals.
ANALYSIS
Following a bench trial, appellate review is limited to determining whether
substantial evidence supports the trial court’s findings of fact and, if so, whether the
findings support the conclusions of law. State v. Stevenson,

128 Wash. App. 179

, 193,

114 P.3d 699

(2005). “Substantial evidence” is evidence sufficient to persuade a fair-minded
person of the truth of the asserted premise.

Id. We defer

to the trial court’s
determinations of the weight and credibility of the evidence. Mueller v. Wells,

185 Wash. 2d 1

, 9,

367 P.3d 580

(2016).
Unchallenged findings are verities on appeal, see

id., and Mr.

Young does not
dispute the trial court’s extensive findings. “Thus, the only question is if the
unchallenged facts support the trial court’s conclusions of law.”

Id. Mr. Young’s

appeal
challenges only the trial court’s dismissal of his CPA claim.4
4
We recognize that Mr. Young’s request for relief in his briefing to this court is
for an unqualified reversal. His assignments of error and legal argument fail to address
his negligent misrepresentation claim, however. We will not review its dismissal. See
RAP 10.3(a)(4) and (6) (required content of an opening brief).
6
No. 35842-9-III
Young v. Toyota Motor Sales
In a private cause of action, the CPA requires a plaintiff to prove five elements:
“(1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3)
affecting the public interest, (4) injury to a person’s business or property, and (5)
causation.” Panag v. Farmers Ins. Co. of Wash.,

166 Wash. 2d 27

, 37,

204 P.3d 885

(2009); see also Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co.,

105 Wash. 2d 778

, 780,

719 P.2d 531

(1986). “Failure to satisfy even one of the elements is
fatal to a CPA claim.” Sorrel v. Eagle Healthcenter, Inc.,

110 Wash. App. 290

, 298,

38 P.3d 1024

(2002). The trial court concluded that Mr. Young’s proof of the CPA claim
fell short of his burden in five respects. It is sufficient on appeal for us to address
whether he proved the first and fifth elements of the claim.
Element One: An unfair or deceptive act or practice
The CPA does not define “unfair or deceptive act or practice.” “To show a party
has engaged in an unfair or deceptive act or practice a ‘plaintiff need not show that the
act in question was intended to deceive, but that the alleged act had the capacity to
deceive a substantial portion of the public.’” Sing v. John L. Scott, Inc.,

134 Wash. 2d 24

,
30,

948 P.2d 816

, (1997) (quoting Hangman

Ridge, 105 Wash. 2d at 785

). “Implicit in the
definition of ‘deceptive’ is the understanding that the actor misrepresented something of
material importance.” Hiner v. Bridgestone/Firestone, Inc.,

91 Wash. App. 722

, 730,

959 P.2d 1158

(1998) (emphasis omitted), rev’d in part on other grounds,

138 Wash. 2d 248

978 P.2d 505

(1999). “Deception exists, ‘if there is a representation, omission or practice
7
No. 35842-9-III
Young v. Toyota Motor Sales
that is likely to mislead’ a reasonable consumer.”

Panag, 166 Wash. 2d at 50

(quoting Sw.
Sunsites, Inc. v. Fed. Trade Comm’n,

785 F.2d 1431

, 1435 (9th Cir. 1986)).
The “material importance” and “reasonable consumer” standards are consistent
with decisions of federal courts and final orders of the Federal Trade Commission (FTC)
interpreting provisions of the Federal Trade Commission Act dealing with the same or
similar matters, as intended by the Washington Legislature. See RCW 19.86.920.5 In a
1983 report to a congressional committee on the FTC’s enforcement policy against
deceptive acts or practices, the FTC provided its view of the meaning of “deceptive acts
or practices” under both sections 5 and 12 of the FTC Act.6 See Cliffdale Assocs., 103
F.T.C. 110, app. at 174-84 (1984) (Letter from James C. Miller III, FTC Chairman, to the
Honorable John D. Dingell, Chairman, U.S. House Comm. on Energy & Commerce
(October 14, 1983)). Courts have summarized the Commission’s view as prohibiting
practices that are “likely to mislead consumers acting reasonably under the circumstances
. . . in a way that is material.” Fed. Trade Comm’n v. Cyberspace.com LLC,

453 F.3d 1196

, 1199 (9th Cir. 2006) (citing Fed. Trade Comm’n v. Gill,

265 F.3d 944

, 950 (9th
5
RCW 19.86.920 declares that the purpose of the CPA “is to complement the
body of federal law governing restraints of trade, unfair competition and unfair,
deceptive, and fraudulent acts or practices in order to protect the public and foster fair
and honest competition” and declares “the intent of the legislature that, in construing this
act, the courts be guided by final decisions of the federal courts and final orders of the
federal trade commission interpreting the various federal statutes dealing with the same
or similar matters.”
6
15 U.S.C. §§ 45, 52.
8
No. 35842-9-III
Young v. Toyota Motor Sales
Cir. 2001) (citing, in turn, Fed. Trade Comm’n v. Pantron I Corp.,

33 F.3d 1088

, 1095
(9th Cir. 1994)); Corder v. Ford Motor Co., 285 F. App’x 226, 228 (6th Cir. 2008); and
see Kraft, Inc. v. Fed. Trade Comm’n,

970 F.2d 311

, 314 (7th Cir. 1992); Cliffdale
Assocs., 103 F.T.C. 110, at 164-66.
The FTC has summarized its approach to the requirement of materiality as
follows:
The basic question is whether the act or practice is likely to affect the
consumer’s conduct or decision with regard to a product or service. If so,
the practice is material, and consumer injury is likely, because consumers
are likely to have chosen differently but for the deception. In many
instances, materiality, and hence injury, can be presumed from the nature of
the practice. In other instances, evidence of materiality may be necessary.
Cliffdale Assocs., 103 F.T.C. 110, app. at 175-76.
“A claim under the Washington CPA may be predicated upon a per se violation of
statute, an act or practice that has the capacity to deceive substantial portions of the
public, or an unfair or deceptive act or practice not regulated by statute but in violation of
public interest.” Klem v. Wash. Mut. Bank,

176 Wash. 2d 771

, 787,

295 P.3d 1179

(2013).
Mr. Young primarily contends that Toyota’s “false advertising” had the capacity to
deceive a substantial portion of the public. Appellant’s Br. at 3. He argues alternatively
that it was per se unfair or deceptive conduct under chapter 46.70 RCW, which regulates
automobile manufacturers and dealers.

Id. 9 No.

35842-9-III
Young v. Toyota Motor Sales
Capacity to deceive substantial portions of the public. The court found that “there
is no question that there was a mistake both in Toyota’s online Build-a-Tacoma feature,
and possibly in as many as 147 Monroney labels for 2014 Tacomas with a limited
package that were shipped around the United States.” CP at 408. But it found that Mr.
Young failed to demonstrate that Toyota’s mistake was a matter of material importance
and therefore deceptive, or that it had the capacity to deceive a substantial portion of the
public.
We need address only materiality to affirm the court’s conclusion that Mr. Young
failed to prove a deceptive act or practice. The trial court’s unchallenged finding was that
the temperature gauge represented $10 in value, as compared to the $7,525 cost of the
2014 model limited package. It also made the unchallenged finding that because the
temperature gauge was never intended to be a feature of the limited package, it was not
included in pricing the package, so no purchaser of the package ever paid for it. This
unchallenged evidence establishes that Toyota’s error was financially immaterial.
Mr. Young did not present credible evidence that Toyota’s error was material for
any nonfinancial reason. Having weighed Mr. Young’s credibility, the court rejected his
assertion that he, personally, was induced by the mistake to buy the limited package. Mr.
Young presented no evidence that the mistake would have been material to others.
A similar failure to present evidence caused this court to affirm summary
judgment dismissal of a CPA claim in Brummett v. Wash.’s Lottery,

171 Wash. App. 664

,
10
No. 35842-9-III
Young v. Toyota Motor Sales
676,

288 P.3d 48

(2012). Mr. Brummett sued the Washington Lottery and its outside
advertising agency, contending (among other claims) that the agency’s false
advertisement that tickets being offered in a special raffle were “going fast” violated the
CPA.

Id. at 672.

He alleged that the advertisements would have induced the public to
purchase tickets, but as this court observed, “[H]e did not, however, support this assertion
with evidence that he would produce if he defeated summary judgment and went to trial.”

Id. at 676.7

In affirming dismissal of his CPA claim, this court stated that the agency’s
“‘going fast’ statements could not be categorized as misrepresenting something of
material importance.”

Id. at 678.

The trial court’s findings support its conclusion that Mr. Young failed to prove
Toyota’s error was of material importance, and thereby failed to prove it was deceptive.
Per se unfair or deceptive conduct. Alternatively, Mr. Young argues that the trial
court erred in concluding that he failed to prove a per se violation, based on Toyota’s
alleged violation of chapter 46.70 RCW. Shortly after Hangman Ridge was decided, the
legislature declared that “[a]ny violation of [chapter 46.70] is deemed to affect the public
interest and constitutes a violation of chapter 19.86 RCW.” LAWS OF 1986, ch. 241, § 23,
7
Materiality was relevant to two of Mr. Brummett’s claims: a fraud claim and the
CPA claim. The immateriality of the “going fast” statements was discussed first in
connection with his fraud claim, see

Brummett, 171 Wash. App. at 675-76

, with a reference
back when the court held that for CPA purposes, the statements did not misrepresent
something of material importance.
11
No. 35842-9-III
Young v. Toyota Motor Sales
codified at RCW 46.70.310. Demonstration of a violation of the chapter therefore
satisfies the first two elements of a CPA claim.
Mr. Young relies specifically on RCW 46.70.180(1). It provides that it is
unlawful to disseminate in any manner “any statement or representation with regard to
the sale, lease, or financing of a vehicle which is false, deceptive, or misleading,”
“including” a list of five actionable statements or misrepresentations, all of which deal
with sale, lease, or financing terms. The trial court construed the language “with regard
to the sale, lease, or financing of a vehicle” as language of limitation and concluded that
Toyota’s temperature gauge error was not a statement or representation dealing with sale,
lease, or financing terms. Mr. Young argues that this construes the provision too
narrowly.8
The language relied on by the court and the maxim of ejusdem generis as applied
to the five nonexclusive examples provide support for the trial court’s construction of
RCW 46.70.180(1). But we need not construe the statute because we hold that a
materiality requirement inheres in the provision, just as it inheres in the CPA and in
8
The trial court also relied on the fact that a claim under RCW 46.70.180(1)—
which has a one-year statute of limitations—would be time-barred, and on a couple of
federal district court decisions holding that it therefore could not be the basis of a per se
CPA claim. The only precedential Washington decision addressing the issue came to the
opposite conclusion. Walker v. Wenatchee Valley Truck & Auto Outlet, Inc., 155 Wn.
App. 199, 209-10,

229 P.3d 871

(2010) (a per se CPA claim is governed by the CPA’s
own four-year statute of limitations).
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No. 35842-9-III
Young v. Toyota Motor Sales
sections 5 and 12 of the FTC Act. We can affirm a trial court judgment on any basis
within the pleadings and proof. Gosney v. Fireman’s Fund Ins. Co.,

3 Wash. App. 2d

828,
877,

419 P.3d 447

, review denied, 191Wn.2d 1017 (2018) (citing Wendle v. Farrow,

102 Wash. 2d 380

, 382,

686 P.2d 480

(1984)).
Provisions of chapter 46.70 RCW support this construction. Its declaration of
purpose states that the chapter was enacted “in order to prevent frauds, impositions, and
other abuses upon its citizens and to protect and preserve the investments and properties
of the citizens of this state.” RCW 46.70.005. Immaterial errors are not frauds,
impositions, or abuses. And RCW 46.70.220 provides that the chapter “shall be
considered in conjunction with chapter[ ] . . . 19.86,” with the powers and duties of the
State as they may appear in that chapter “shall apply against all persons subject to this
chapter.”
As earlier discussed, Toyota’s mistake was found to be financially immaterial
because purchasers of the limited package were never charged for the $10 temperature
gauge. We will not presume that a $10 part for which the consumer was not charged was
material to purchase of the $7,525 model 2014 limited package. The trial court found
that Mr. Young presented no credible evidence that the temperature gauge error was
material to him, and no evidence whatsoever that it was material to other consumers.
Here again, because Mr. Young failed to prove Toyota’s error was of material
importance, he failed to prove that it constituted a violation of RCW 46.70.180(1).
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No. 35842-9-III
Young v. Toyota Motor Sales
Element Five: Causation
A CPA plaintiff may only recover for injury to his or her business or property that
was proximately caused by a defendant’s unfair or deceptive practices.

Panag, 166 Wash. 2d at 63-64

. The injury “need not be great” and no monetary damages need be
proven. Mason v. Mortg. America, Inc.,

114 Wash. 2d 842

, 854,

792 P.2d 142

(1990).
The causation element is satisfied if the plaintiff demonstrates that a
misrepresentation of fact led him to choose the defendant’s product. Mayer v. Sto
Industries, Inc.,

123 Wash. App. 443

, 458,

98 P.3d 116

(2004), aff’d in part, rev’d in part
on other grounds,

156 Wash. 2d 677

132 P.3d 115

(2006). In his reply brief, Mr. Young
argues that this was the nature of his injury. But after weighing the evidence, the court
“c[ould] not conclude, more probably than not, that Mr. Young’s reliance on a mistaken
website is the proximate cause of his decision to purchase the Toyota Tacoma Limited
Package, and, therefore, caused him damages.” CP at 419. Factual findings of the trial
court that support this conclusion are unchallenged. We do not reweigh the evidence or
determine credibility.
During the bench trial, Mr. Young argued that investigative expenses he incurred
also qualify as recoverable injury. Expenses incurred to pursue a CPA claim do not
14
No. 35842-9-III
Young v. Toyota Motor Sales
constitute injury, although an injury to business or property that is proximately caused by
the deceptive act itself is compensable.

Panag, 166 Wash. 2d at 62

(comparing Demopolis
v. Galvin,

57 Wash. App. 47

786 P.2d 804

(1990) (litigation expenses incurred to institute
CPA counterclaim does not constitute injury), with Sign–O–Lite Signs, Inc. v. DeLaurenti
Florists,

64 Wash. App. 553

825 P.2d 714

(1992) (loss of business profits resulting from
time spent embroiled in disputing improper payment demand constitutes injury)).
The trial court made an unchallenged finding that Mr. Young did not do anything
about the missing temperature gauge until he received the December 2013 letter from
Toyota notifying him of its mistake and offering a $100 cash reimbursement. A further
unchallenged finding was that the conduct the court found credible “[was] much more
consistent with someone who learned that Toyota had made a mistake and wanted to take
advantage of it, than someone who relied upon that item in good faith.” CP at 415.
Based on the trial court’s findings, which are supported by the evidence, the investigation
performed by Mr. Young was proximately caused by his receipt of Toyota’s truthful
December 2013 letter, not by its earlier mistake.
Mr. Young’s failure to prove any injury to business or property proximately
caused by Toyota’s mistake provided an additional basis for the trial court’s dismissal of
his CPA claim.
15
No. 35842-9-111
Young v. Toyota Motor Sales
Affirmed.
I CONCUR:
.~.
16
No. 35842-9-111
FEARING, J. (concurring) - I write separately to express some disagreement with
the majority opinion.
The majority attaches a requirement of materiality to element one of a Consumer
Protection Act claim, chapter 19.86 RCW, the element of an unfair or deceptive act or
practice. I question the validity of appending an element of materiality to this first
component of a Consumer Protection Act suit. Nevertheless, I assume, consistent with
the majority opinion, that the Washington Supreme Court, based on federal law, will add
the materiality component to the unfair or deceptive act or practice element, at least to a
claim not involving a per se violation of the act.
The majority adds a materiality requirement to the unfair or deceptive act or
practice element based on this court's decisions in Brummett v. Washington's Lottery,