Raceway Ford Cases

Filed 9/16/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RACEWAY FORD CASES,
E054517, E056595
(Super.Ct.No. JCCP4476)
OPINION
APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, with directions.
Rosner, Barry & Babbitt and Hallen D. Rosner, Christopher P. Barry and Angela
J. Smith for Plaintiffs and Appellants Carl Stone et al.
Callahan, Thompson, Sherman & Caudill and Kellie S. Christianson for Defendant
and Respondent Raceway Ford, Inc.
I. INTRODUCTION
Plaintiffs, appellants, and cross-respondents (plaintiffs) are consumers who
purchased vehicles from defendant, respondent, and cross-appellant Raceway Ford
(Raceway), an automobile dealership. Plaintiffs alleged numerous causes of action based
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on laws proscribing certain acts against consumers, unfair competition, and deceptive
business practices, bringing both individual claims and claims on behalf of two certified
classes. The trial court, after a bench trial, entered judgment in favor of Raceway and
against plaintiffs on all causes of action, except that a single plaintiff was granted
rescission on a single cause of action. Separately, the trial court awarded attorneys’ fees
and costs to Raceway in the amount of $1,503,084.50. In these appeals, which we
ordered consolidated for oral argument and decision, plaintiffs challenge the trial court’s
judgment on the merits (case No. E054517) and fee order (case No. E056595); Raceway
has cross-appealed regarding one aspect of the trial court’s fee order.
With respect to the trial court’s decision on the merits (case No. E054517),
plaintiffs contend that, as a matter of law, Raceway’s previous practice of “backdating”
second or subsequent contracts for sale of a vehicle to the original date of sale violates
the Automobile Sales Finance Act, also known as the Rees-Levering Motor Vehicle Sales
and Finance Act (ASFA) (Civ. Code,1 § 2981 et seq.), the Consumer Legal Remedies Act
(CLRA) (Civ. Code, § 1750 et seq.), and the Unfair Competition Law (UCL) (Bus. &
Prof. Code, § 17200 et seq.). Plaintiffs ask that we reverse the trial court’s judgment in
favor of Raceway and against the certified class of plaintiffs who entered into backdated
second or subsequent contracts with Raceway, and order entry of judgment in favor of
1 Further undesignated statutory references are to the Civil Code unless otherwise
indicated.
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plaintiffs. 2 We agree that the practice of backdating could have resulted in inaccurate
disclosures to class members, thereby violating the ASFA, at least in some cases. On the
present record, however, we decline to order entry of judgment in favor of the plaintiff
class. We instead reverse the trial court’s judgment in favor of Raceway with respect to
plaintiffs’ backdating claims, and remand for further proceedings.
Plaintiffs also appeal the judgment in favor of Raceway with respect to the claims
of a second certified class, consisting of Raceway customers who purchased used diesel
vehicles from Raceway and who were charged fees for smog checks and smog
certifications that were only properly applicable to purchases of gasoline vehicles.
Plaintiffs argue that Raceway failed to plead and establish a valid defense to liability
under the ASFA with respect to these fees, and that the class is entitled to judgment in its
favor and the remedy of rescission, notwithstanding refunds paid by Raceway. We
affirm the trial court’s judgment with respect to plaintiffs’ smog fee claims.
Additionally, plaintiffs appeal the judgment in favor of Raceway on certain
individual plaintiffs’ claims that Raceway violated the ASFA by failing to provide them
with copies of their credit applications. Plaintiffs challenge the trial court’s finding that
these plaintiffs did not meet their burden of proving a violation. Plaintiffs’ evidence in
2 Plaintiffs also seek review of the trial court’s denial of their motion for a new
trial and motion to vacate and enter different judgment pursuant to Code of Civil
Procedure section 663. The trial court’s denial of these posttrial motions, however, raises
no substantive legal issues that are not either resolved or mooted by our ruling with
respect to the trial court’s judgment on the merits. We reject plaintiffs’ contention, raised
at oral argument, that we either must or should consider the propriety of the denial of
their posttrial motions first. We therefore do not discuss these motions further.
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support of these claims does not compel a decision in their favor, so we affirm the trial
court’s ruling.
Finally, plaintiffs appeal the judgment in favor of Raceway with respect to claims
under the UCL and the CLRA brought by plaintiff Francisco Salcedo in his individual
capacity. The trial court found in favor of Mr. Salcedo on his claim of fraud, and granted
him the remedy of rescission, though it declined to award any punitive damages.
Plaintiffs contend that the judgment in Mr. Salcedo’s favor on his fraud claim—which
Raceway has not appealed—establishes as a matter of law that he should also have
judgment entered in his favor on his UCL and CLRA claims. We agree, and reverse,
remanding the matter to the trial court for entry of judgment in favor of Mr. Salcedo on
the UCL and CLRA claims he brought in his individual capacity, and for consideration as
to whether he should be awarded any additional remedies, beyond those already awarded
to him based on his common law fraud cause of action.
The basis for the trial court’s award of fees to Raceway is in part undermined by
our partial reversal of the judgment. We therefore need not and do not address the merits
of the parties’ arguments in the appeal and cross-appeal of the fee award, but instead
vacate the trial court’s fee award, and remand the issue of attorney fees and costs for
reconsideration following final adjudication of the remainder of the case.
II. FACTUAL BACKGROUND
Plaintiffs’ most recent amended complaint, the second amended complaint (SAC),
alleges 18 causes of action, including claims on behalf of several separate classes, and
other claims on behalf of certain individual plaintiffs. The claims at issue in the present
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appeal fall into four categories; we describe below the background facts relevant to each
of these categories.
A. Backdating Claims
For some of its customers, Raceway acts not only as seller of a vehicle, but also as
creditor, by extending financing for the sale. Generally, Raceway then attempts to assign
the finance contract to a commercial lender. Sometimes, after the contract for the sale
and financing has been signed and the customer has taken delivery of the vehicle,
Raceway has later entered into a second or subsequent contract with the customer for the
same vehicle. This occurred on some occasions when commercial lenders were
unwilling to accept assignment of the contract on the terms Raceway had agreed to with
its customer; in that case, Raceway could contact the customer and request to renegotiate
the terms of the sale and financing.3 Alternatively, a customer could initiate a
renegotiation with Raceway, for example, because he or she had regrets about the initial
terms.
Plaintiffs’ backdating claims arise from the circumstance that, prior to late 2004, it
was Raceway’s practice to date second or subsequent contracts negotiated with customers
using the date of the initial contract. A customer who agreed to enter into a second or
subsequent contract with Raceway would sign not only a new purchase contract, dated to
the initial date of sale, but also an “Acknowledgement of Rescinded Contract” or
3Alternatively, in such circumstances, Raceway may choose to continue to act as
creditor, accepting payments from the customer directly for the term of the financing, or,
as will be discussed in more detail below, Raceway may choose to rescind the sale,
exercising the unilateral rescission rights it holds under the terms of the contracts.
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“Acknowledgement of Rewritten Contract,” which also was backdated to the date as the
original contract. The acknowledgements state that the original contract has been
“‘rescinded (canceled) such that no obligations shall be owed by either party under the
original contract.’”
The trial court certified a class, referred to as “Class One” or the “Backdating
Class” by the parties, consisting of “[a]ll persons who, since January 12, 2001,
(1) purchased a vehicle from Raceway Ford, for personal use, (2) on a later date
rescinded their original purchase contract, and (3) signed a subsequent or second contract
for the purchase of the same vehicle, which contract was dated the date of the original
purchase contract and involved financing at an annual percentage rate greater than
0.00%.” There are, according to plaintiffs, approximately 1100 members of Class One.
At trial, Class One asserted claims under the ASFA, CLRA, and UCL based on the
practice of backdating described above. The trial court found in favor of Raceway on all
claims; its reasoning in support of this ruling will be discussed below.
B. Smog Fee Claims
Raceway concedes that it erroneously charged some of its customers who
purchased used diesel vehicles certain fees related to performing a smog check and
obtaining state smog certification that should only have been charged to purchasers of
used gasoline-powered vehicles. These charges were explicitly disclosed in the contracts
that the customers signed; the problem is that the fees should not have been charged at
all, and neither Raceway nor the customers involved caught the error at the time of the
transaction. Plaintiffs have not disputed that each of these customers has, during the
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pendency of this litigation, received two checks from Raceway, the first of which
refunded the fees themselves, and the second of which represented an amount Raceway
calculated to represent any finance charges the customers may have incurred on the fees.
The trial court certified a class, referred to by the parties as “Class Two” or the
“Smog Fee Class,” consisting of “[a]ll persons except for Robert Loverso4 who, since
January 12, 2001, purchased a diesel vehicle from Raceway Ford for personal use and
were charged a smog fee and a smog certification fee.” There are, according to plaintiffs,
48 members of Class Two. At trial, Class Two asserted only a claim under the ASFA.5
The trial court entered judgment in favor of Raceway, finding that Raceway’s actions
constituted a “bona fide error corrected with full refunds plus interest within a reasonable
time under the Automobile Sales Finance Act,” and holding that “Raceway is not legally
required to do more to correct” its errors. Plaintiffs contend that Class Two is entitled to
judgment in its favor under the ASFA and the remedy of rescission.
C. Credit Application Claims
Certain individual plaintiffs,6 some of whom testified at trial, claimed that
Raceway failed to provide them with copies of their credit applications, in violation of
the ASFA. Raceway contended that it did provide them copies, and presented evidence
4 Robert Loverso was initially a named class member but, as pleaded in the SAC,
he entered into a separate settlement agreement with Raceway.
5 Though Class Two also alleged a claim under the UCL in the SAC, the trial
court only certified Class Two with respect to its claim under the ASFA.
6 Specifically, plaintiffs Carl Stone, Deborah Stone, Francisco Salcedo, Anselmo
Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott, Martha Ott, Eldridge Johnson,
Randal Kidd, Macon Pollard, Ozetta Pollard, and Suzanna Moreno.
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at trial of its policy and practice to give every customer a copy of any credit application
submitted by a customer. The trial court ruled in favor of Raceway, finding plaintiffs had
not met their burden of proof, and noting there was “competent but conflicting evidence
presented on both sides” as to whether plaintiffs were provided copies of their credit
applications in conjunction with their initial contracts with Raceway, and “no credit
applications were needed or required” with respect to any second or subsequent contracts.
D. Individual Claims of Francisco Salcedo
Plaintiff Francisco Salcedo is a Raceway customer who initially purchased and
took delivery of a new pickup truck, a 2004 Ford. He testified that a representative of
Raceway subsequently called him and told him that he needed to bring the vehicle back,
because he did not qualify for financing. Mr. Salcedo returned the vehicle to the
dealership. When he did so, he asked if he could get back his trade-in; he was told that
he could not. He was told that instead he had to choose an alternative vehicle from
several presented by Raceway that he would be qualified to purchase; he selected a used
2001 Chevrolet pickup truck, signing a new purchase contract for the second vehicle.
Raceway was acting within its contractual rights to require Mr. Salcedo to return
the 2004 Ford. Under the terms of its contracts, Raceway holds a unilateral right of
rescission for a period of 10 days after a sale, which may be exercised if Raceway is
unable to verify a customer’s credit and assign the contract.7 Under the terms of its
7 A buyer signing a Raceway contract agrees “that it may take a few days for
[Raceway] to verify your credit and assign the contract,” and agrees that “if [Raceway] is
unable to assign the contract to any one of the financial institutions with whom
[footnote continued on next page]
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contractual rescission rights, however, once Raceway elects to rescind a contract and
receives the vehicle from the customer, Raceway must return “all consideration received
by [Raceway], including any trade-in vehicle.” That is not what Raceway did in the case
of Mr. Salcedo.
The trial court ruled that Mr. Salcedo had satisfied his burden of proof for his
fraud claim, finding him to be “a credible witness when he testified that he was told by
Raceway’s authorized representative upon his return after the customary telephone call
that he could not refuse to sign a second contract and unwind the transaction because they
could not return his trade-in since they didn’t know where it was.” Raceway has not
challenged this ruling on appeal.
The trial court’s statement of decision does not specifically address two other
claims asserted by Mr. Salcedo in his individual capacity,8 based on the same facts,
namely, claims under the UCL and the CLRA. The trial court’s judgment, entered on
October 12, 2011, provides no elucidation, because it does no more than adopt and attach
the statement of decision. Similarly, in considering the issue of attorney fees, the trial
court explicitly reduced the award in favor of Raceway by an amount intended to reflect
[footnote continued from previous page]
[Raceway] regularly does business under an assignment acceptable to [Raceway],
[Raceway] may rescind (cancel) the contract.”
8 Mr. Salcedo is also a named representative of Class One. After Mr. Salcedo’s
initial contract for the 2001 Chevrolet, he was later invited back to enter into a
replacement contract with respect to that same vehicle, on terms that would lower his
monthly payment. Both Mr. Salcedo’s initial contract for the 2001 Chevrolet (his second
contract with Raceway) and his subsequent contract for the same vehicle (his third
contract with Raceway) are dated June 11, 2004.
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Raceway’s unsuccessful defense of Mr. Salcedo’s fraud claim, but makes no mention of
Mr. Salcedo’s individual UCL or CLRA claims. Mr. Salcedo is not among the individual
plaintiffs held jointly and severally liable for the fees awarded to Raceway as prevailing
party, even though he was a named member of Class One, in addition to asserting
individual claims.
Nevertheless, the parties and the trial court all appear to have understood the trial
court to have rendered a decision in favor of Raceway on all claims asserted by plaintiffs
at trial, with the sole exception of Mr. Salcedo’s fraud claim. We therefore will proceed
with our analysis of the case on the understanding that the court intended to enter
judgment in favor of Raceway and against Mr. Salcedo on his UCL and CLRA claims.
(See In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 949 [“‘Where an
ambiguity exists, the court may examine the entire record to determine the judgment’s
scope and effect.’”].)
III. PROCEDURAL BACKGROUND
Plaintiffs’ initial complaint in this matter was filed on October 29, 2004. The SAC
was filed on July 21, 2008. A bench trial on claims remaining in the case was held in
from March 3, 2010, through March 9, 2010.
The posttrial procedural history of this case is an object lesson on the importance
of California Rules of Court, rule 3.1590(l), which provides the time within which, if a
written judgment is required after a court trial, the trial court must sign and file the
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judgment.9 Also, even though many of the details are not strictly relevant to our
disposition of these appeals, the posttrial procedural history is useful for understanding
the current posture of the case. We will, therefore, describe it at some length.
On March 30, 2010, the trial court issued its tentative decision on the merits. On
April 16, 2010, the trial court issued a statement of decision, identical in substance to the
tentative decision, and finding in favor of Raceway on all causes of action except that a
single plaintiff—Mr. Salcedo—was granted rescission on a single cause of action. On
April 29, 2010, Raceway filed a request for entry of judgment, including a proposed
judgment. On May 3, 2010, and May 5, 2010, plaintiffs filed objections to the request for
entry of judgment and statement of decision, respectively, and requested a hearing under
California Rules of Court, rule 3.1590(k). On May 13, 2010, the trial court issued a
minute order denying the requested hearing, overruling the objections, and ordering that
the statement of decision would stand as the decision of the court. No judgment,
however, was signed and entered by the court.
On June 9, 2010, Raceway filed a second request for entry of judgment, including
a revised proposed judgment. On June 15, 2010, the trial court denied plaintiffs’ motion
for leave to file a third amended complaint to conform to proof adduced at trial. The trial
court also denied an oral request by plaintiffs for a stay of proceedings until after the
9 California Rules of Court, rule 3.1590(l) provides that where a written judgment
is required, “the court must sign and file the judgment within 50 days after the
announcement or service of the tentative decision, whichever is later, or, if a hearing was
held under [rule 3.1590(k)], within 10 days after the hearing.”
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Fourth District, Division One Court of Appeal issued a ruling on a similar action. The
trial court directed counsel to submit a joint proposed judgment to the court.
The parties did not submit a joint proposed judgment prior to the issuance of
Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983 (Nelson) by the Fourth District,
Division One Court of Appeal on July 15, 2010. In Nelson, as in this case, plaintiffs
asserted (among other things) class claims based on backdating of second or subsequent
vehicle contracts by a dealership, allegedly in violation of the ASFA, UCL, and CLRA.
(Nelson, supra, at p. 994.) The Nelson court reached a decision contrary to that rendered
by the trial court in its statement of decision in this action, finding the dealership’s
backdated contracts violated the ASFA, UCL, and CLRA. (Nelson, at pp. 1005, 1014,
1023.) The Nelson court’s decision, and the reasoning underlying it, will be discussed at
length below.
On July 29, 2010, Raceway filed a third request for entry of judgment, including a
newly revised proposed judgment. Plaintiffs opposed the entry of judgment based upon
the Nelson ruling. On September 29, 2010, the trial court continued the hearing on the
motion for entry of judgment for 45 days to allow the Supreme Court to rule on the
possible depublication of Nelson. On December 10, 2010, the trial court determined that
it had no choice but to follow the binding precedent of an appellate court and ordered its
previous statement of decision withdrawn, stated that it was now finding for the plaintiffs
under Nelson, and set a hearing for January 28, 2011, to determine the proper remedy.
Raceway filed a petition for writ of mandate in this court on December 23, 2010,
arguing that the trial court should be required to enter judgment in conformity with its
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April 16, 2010, statement of decision. We agreed, and on March 22, 2011, in an
unpublished opinion, we ordered that a peremptory writ of mandate issue, directing the
trial court to vacate the December 10, 2010, order that vacated its April 16, 2010,
statement of decision, and to enter a judgment nunc pro tunc to June 10, 2010, in
conformity with the April 16, 2010, statement of decision. (Raceway Ford, Inc. v.
Superior Court (Mar. 22, 2011, E052543)[nonpub.opn.].)
On June 27, 2011, the trial court issued a minute order vacating its December 10,
2010, order and stating that it was entering judgment nunc pro tunc to June 10, 2010, in
conformity with its April 16, 2010, statement of decision. Despite this minute order
announcing judgment, however, no judgment was signed and filed by the trial court.
On July 13, 2011, plaintiffs filed a motion for new trial and a motion to vacate and
enter a different judgment, treating the trial court’s June 27, 2011, minute order as a
judgment. On August 19, 2011, the trial court issued a minute order denying the
motions.
On September 7, 2011, plaintiffs filed the notice of appeal for case No. E054517,
purporting to appeal from the June 27, 2011, minute order, as well as the denial of their
motion for new trial and motion to vacate and enter a new judgment. On October 6,
2011, this court issued an order directing plaintiffs to file the signed judgment in support
of their Notice of Appeal. They were unable to do so immediately, because the trial court
had never signed and entered a judgment. The trial court entered a signed judgment on
October 12, 2011, after an ex parte application on that date by appellants, requesting that
it do so. Plaintiffs submitted the signed judgment to this court on October 14, 2011, and
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on October 26, 2011, we issued an order construing plaintiffs’ appeal to have been taken
from the signed judgment entered by the trial court on October 12, 2011.
On June 8, 2012, the trial court filed an order granting fees and costs to Raceway
(fee order). Plaintiffs appealed the fee order (case No. E056595). On July 5, 2012, we
ordered that case No. E054517 and case No. E056595 be consolidated for oral argument
and decision. On July 9, 2012, Raceway filed its cross-appeal of the fee order in case No.
E056595.
IV. DISCUSSION
A. Standard of Review
“The most fundamental rule of appellate review is that a judgment is presumed
correct, all intendments and presumptions are indulged in its favor, and ambiguities are
resolved in favor of affirmance. [Citations]” (City of Santa Maria v. Adam (2012) 211
Cal.App.4th 266, 286 (City of Santa Maria).)
“‘In general, in reviewing a judgment based upon a statement of decision
following a bench trial, “any conflict in the evidence or reasonable inferences to be
drawn from the facts will be resolved in support of the determination of the trial court
decision. [Citations.]” [Citation.] In a substantial evidence challenge to a judgment, the
appellate court will “consider all of the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference, and resolving
conflicts in support of the [findings]. [Citations.]” [Citation.] We may not reweigh the
evidence and are bound by the trial court’s credibility determinations. [Citations.]
Moreover, findings of fact are liberally construed to support the judgment. [Citation.]’”
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(Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765 (Cuiellette), quoting
Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) When a party challenges on appeal a
ruling that it failed to carry a burden of proof, the substantial evidence standard is
inappropriate, and “‘the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law. [Citations.]’” (Sonic
Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-
466 (Sonic).)
“‘Questions of statutory interpretation, and the applicability of a statutory standard
to undisputed facts, present questions of law, which we review de novo. [Citation.]’”
(Cuiellette, supra, 194 Cal.App.4th at p. 765, quoting Jenkins v. County of Riverside
(2006) 138 Cal.App.4th 593, 604.)
B. Backdating Claims
Plaintiffs contend that Raceway’s previous practice of backdating second or
subsequent contracts to the date of the original sale violates the ASFA by: (1) causing
the annual percentage rate (APR) disclosed in second or subsequent contracts to be
inaccurate; (2) purporting to require customers to pay an “illegal finance charge” for the
period prior to the consummation of their second or subsequent contracts; and
(3) violating the “single document” rule (§ 2981.9) and the itemized disclosure
requirements of the ASFA (§ 2982, subd. (a)). They argue that Class One is entitled, as a
matter of law, to the remedy of rescission for Raceway’s violations of the ASFA.
Plaintiffs further contend that the backdating also violated the UCL and the CLRA, and
that they are entitled to judgment in their favor on those claims as well.
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For the reasons stated below, we reverse the trial court’s judgment in favor of
Raceway on the backdating claims, but decline to order that judgment be entered in favor
of plaintiffs, instead remanding for further proceedings.
1. Claims Under the ASFA
“Broadly speaking, [the ASFA] is a consumer protection law governing the sale of
cars in which the buyer finances some, or all, of the car’s purchase. [Citations.]” (Rojas
v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997, 1002.) The ASFA was
enacted “to increase protection for the unsophisticated motor vehicle consumer and
provide additional incentives to dealers to comply with the law. [Citations.]” (Nelson,
supra, 186 Cal.App.4th at p. 999.)
The ASFA requires that a car dealer make certain disclosures to a buyer who
finances some or all of a car’s purchase, including the specific disclosures enumerated in
section 2982, subdivision (a). In addition, the first, unlettered paragraph of section 2982
requires that the car dealer also make all disclosures required by the federal Regulation Z
(12 C.F.R. § 226.1 et seq. (2014)), whether or not Regulation Z applies to the
transaction.10 (§ 2982.) Among the items that a lender must disclose under TILA and
Regulation Z that are not specifically enumerated in section 2982, subdivision (a), is the
APR of the loan. (15 U.S.C. § 1638(a)(4); 12 C.F.R. § 226.18(e) (2014).) Regulation Z
defines APR as “a measure of the cost of credit, expressed as a yearly rate,” and provides
the methods by which the APR may be calculated. (12 C.F.R. § 226.22(a)(1) (2014); 12
10 Regulation Z is a regulation issued by the Federal Reserve Board to implement
the Truth In Lending Act (TILA, 15 U.S.C. § 1601 et seq.). (See Civ. Code, § 2981(m).)
16
C.F.R. § 226, appen. J. (2014).) “‘APR’ . . . differs from the general definition of interest
rate because it considers, by definition, a broader range of finance charges when
determining the total cost of credit as a yearly rate.” (Smith v. Anderson (4th Cir. 1986)
801 F.2d 661, 663.)
In a closed-end credit transaction11 such as the car loans at issue in this case, the
APR is a function of the finance charge, the amount financed, and the term of the
transaction. (See generally 12 C.F.R. § 226, appen. J. (2014).) Calculating the APR of a
transaction using an earlier date as the beginning of the term yields a lower APR than a
later date, assuming none of the other variables, including the end of the term, is changed.
(See, e.g., Nelson, supra, 186 Cal.App.4th at p. 1001 [calculating APR of transaction at
issue using October 2 as beginning of term yielded result of 21 percent; using October 8
yielded result of 21.23 percent].)
Regulation Z provides that “[t]he term of the transaction begins on the date of its
consummation, except that if the finance charge or any portion of it is earned beginning
11 TILA and Regulation Z impose different disclosure requirements depending on
whether the loan at issue is an “open-end credit” transaction or a “closed-end credit”
transaction. Open-end credit includes “credit-card credit and revolving credit more
broadly.” (Benion v. Bank One, Dayton, N.A. (7th Cir. 1998) 144 F.3d 1056, 1057; see
12 C.F.R. § 226.2(a)(20) (2014).) Closed-end credit, by contrast, “means consumer
credit other than ‘open-end credit.’” (12 C.F.R. § 226.2(a)(10) (2014); see also
McAnaney v. Astoria Fin. Corp. (E.D.N.Y. Sept. 12, 2007) No. 04-CV-1101, 2007 U.S.
Dist. LEXIS 67552, *20 [“A ‘closed-end credit’ transaction is one where ‘the finance
charge is divided into the term of the loan and incorporated into time payments,’ and
includes a completed loan like a mortgage or a car loan. [Citations.]”].)
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on a later date, the term begins on the later date.”12 (12 C.F.R. § 226, appen. J(b)(2)
(2014).) Consummation is defined as “the time that a consumer becomes contractually
obligated on a credit transaction.” (12 C.F.R. § 226.2(a)(13) (2014).) When a consumer
“becomes contractually obligated on a credit transaction” (ibid.) is determined, in turn, by
state law. (Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(1)
(2014) [“State law governs. When a contractual obligation on the consumer’s part is
created is a matter to be determined under applicable law; Regulation Z does not make
this determination. . . .”].)
In California, a vehicle sale is “deemed completed and consummated when the
purchaser of the vehicle has paid the purchase price, or, in lieu thereof, has signed a
purchase contract or security agreement, and has taken physical possession or delivery of
the vehicle.” (Veh. Code, § 5901, subd. (d).) Importantly, however, it is not the
consumer’s obligation to the sale of the vehicle that is relevant to determining the term of
a credit transaction under Regulation Z. As noted, “consummation” in the meaning of
Regulation Z refers to when the consumer becomes “contractually obligated on a credit
transaction” (12 C.F.R. § 226.2(a)(13), italics added).)—that is, when the consumer
“becomes legally obligated to accept a particular credit arrangement.” (Official staff
interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014), italics added.) A
12 A previous version of Regulation Z permitted the APR to be calculated using a
term of the transaction beginning on any date when a finance charge begins to accrue
under the terms of a credit agreement, implicitly including dates prior to consummation.
(12 C.F.R. § 226.40(b)(2) (1982) [“The term of the transaction begins on the date of its
consummation, except that if the finance charge or any portion of it is earned beginning
on some other date, the term begins on that other date. . . .”].)
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consumer’s contractual obligation to the sale may or may not coincide exactly with his
obligation to a particular credit arrangement, and the two obligations are analytically
separate under Regulation Z, no matter whether they coincide or not. (Official staff
interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014); see also, e.g.,
Bragg v. Bill Heard Chevrolet, Inc. (11th Cir. 2004) 374 F.3d 1060, 1066 [consummation
occurs not when title passes or when bilateral contract is formed, but rather when
consumer becomes obligated on the credit agreement].)
Federal authority applying Regulation Z supports the proposition that, where a
consumer enters into a second contract with a dealership relating to a vehicle sale, the
date of “consummation” of the credit transaction associated with the second contract is
generally the date of the second contract. In Gibson v. LTD, Inc. (4th Cir. 2006) 434 F.3d
275, for example, the Fourth Circuit considered a second contract for sale of the same
vehicle, entered into one week after the first, after financing could not be obtained under
the original terms. (Id. at p. 286.) Noting that the second contract contemplated an
increased down payment, and therefore a changed finance charge, the court found the
second contract “consummated a new finance arrangement,” requiring new disclosures to
be made under Regulation Z before its consummation. (Gibson, supra, at p. 286.)
Similarly, in Janikowski v. Lynch Ford, Inc. (7th Cir. 2000) 210 F.3d 765 (Janikowski),
the Seventh Circuit analyzed two contracts between an automobile dealership and a
consumer regarding the same vehicle, entered into one day apart, after financing could
not be approved on the original terms. (Id. at p. 767 & fn. 3.) The Janikowski court
treated the two contracts as separate legal obligations, noting that the consumer was
19
under no obligation to purchase the vehicle on credit terms other than those described in
the first contract until the second contract was signed. (Id. at 767, fn. 3.)
Thus, the trial court erred when it looked to Vehicle Code section 5901, and
concluded that “[a] rewritten contract does not generate a new consummation date under
either federal or state law, . . .” commenting that “no statute or case tells us that [the
original] consummation does not continue in effect while the buyer keeps the car and the
contract is rewritten . . . .” This reasoning inappropriately muddles together
consummation of the sale with consummation of the credit transaction. (See Official
staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014).) There is no
question that, when customers in Class One first signed a contract with Raceway and
took delivery of their vehicles, a sale was consummated in the meaning of Vehicle Code
section 5901. And the customers also then became legally committed to a particular
credit transaction. They did not become legally obligated to the terms of the credit
transaction embodied in their second or subsequent contract with Raceway, however,
until that second or subsequent contract was signed. (See, e.g., Janikowski, supra, 210
F.3d at p. 767 & fn. 3.) Thus, the date the second or subsequent contract was signed
would normally be the appropriate date to use as the beginning of the term for purposes
of calculating the APR of the second or subsequent contract’s credit transaction, under
the method required by Regulation Z. That was not Raceway’s practice: instead, the
APR of a second or subsequent contract would be calculated using the same dates as the
initial contract.
20
Nevertheless, judgment in favor of plaintiffs is not necessarily appropriate in all
cases of backdating by Raceway. Regulation Z contemplates certain circumstances
where a second or subsequent contract between a buyer and a seller does not trigger any
requirement for further disclosures, including with respect to APR. As a general rule,
where “an existing obligation” subject to Regulation Z “is satisfied and replaced by a new
obligation undertaken by the same consumer,” it is considered to be a “refinancing.”13
(12 C.F.R. § 226.20(a) (2014).) “A refinancing is a new transaction requiring new
disclosures to the consumer.” (Ibid.; see also official staff interpretations, 12 C.F.R.
§ 226, supp. I, subpt. C(20)(a) (2014) [“A refinancing is a new transaction requiring a
complete new set of disclosures.”].) This general rule, however, is subject to five explicit
exceptions, wherein an existing obligation is replaced by a new obligation undertaken by
the same consumer, but the transaction nevertheless “shall not be treated as a
refinancing.” (12 C.F.R. § 226.20(a)(1)-(5).) At least one of these exceptions is
potentially relevant in this case: “A reduction in the annual percentage rate with a
corresponding change in the payment schedule.” (12 C.F.R. § 226.20, subd. (a)(2).) The
official staff interpretations of Regulation Z explain that “[a] corresponding change in the
payment schedule to implement a lower annual percentage rate would be a shortening of
13 Raceway spills a substantial amount of ink arguing that the backdated second
and subsequent contracts should be considered “lawful novations” under California law.
The matter at issue, however, is not whether it was “lawful” for the parties to enter into
the second or subsequent contracts, or even how best generally to characterize those new
contracts under California law. Rather, it is whether the disclosures that were included in
the second and subsequent contracts complied with the requirements of the Regulation Z,
as incorporated into the ASFA. California law on “novations” is simply not pertinent to
that issue.
21
the maturity, or a reduction in the payment amount or the number of payments of an
obligation.” (Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. C(20)(a)(2)
(2014); see also Krenisky v. Rollins Protective Services Co. (2d Cir. 1984) 728 F.2d 64,
66-67 (Krenisky) [“The protections extended to consumers against creditor overreaching
are not compromised by non-disclosure of unilateral reductions in credit terms.”].) Thus,
a second or subsequent contract entered into between Raceway and a customer regarding
the same vehicle would generally be considered a “refinancing,” triggering a requirement
for new disclosures. But if the second contract is identical to the first, except that the
APR is reduced with a corresponding change in the payment schedule, there would be no
“refinancing” in the meaning of Regulation Z, and no new disclosures would be required
at all with respect to the terms of the new contract.
In addition, Regulation Z allows for a small margin of error with respect to
calculation of the APR. A disclosed APR is “considered accurate” under Regulation Z if
it is “not more than 1/8 of 1 percentage point above or below” the rate determined
utilizing the authorized methods. (12 C.F.R. § 226.22(a)(2) (2014).) Thus, a second or
subsequent contract that is backdated only a short period of time could conceivably fall
within the margin of error allowed by Regulation Z, even though the disclosed APR was
calculated using a date earlier than the date the contract was signed. Several of the
22
allegedly backdated contracts introduced into the record below were apparently
backdated by no more than one day.14
Moreover, we disagree with plaintiffs’ assertion that backdating imposed an
“illegal finance charge” on consumers, even with respect to the second or subsequent
contracts that are refinancings, and which fall outside of the margin of error allowed by
Regulation Z. Plaintiffs’ notion, adopted from Nelson, is that any finance charge
accruing with respect to a second or subsequent contract prior to the consummation date
of that contract constitutes an “illegal finance charge” in the form of “preconsummation
interest.” (See Nelson, supra, 186 Cal.App.4th at p. 1003.) While we typically follow
the decisions of other appellate districts or divisions, those decisions are not binding on
us, and we follow them only if we lack good reason to disagree. (People v. Gipson
(2013) 213 Cal.App.4th 1523, 1529.) As discussed below, we find good reason to
disagree with Nelson’s analysis, and decline to follow it in some respects.
The purpose of Regulation Z is to “promote the informed use of consumer credit
by requiring disclosures about its terms and cost.” (12 C.F.R. § 226.1(b) (2014).)
Nevertheless, with exceptions not relevant here, Regulation Z “does not generally govern
charges for consumer credit.” (12 C.F.R. § 226.1(b) (2014).) More specifically, nothing
in Regulation Z forbids interest on consumer credit contracts to be calculated as accruing
14 Indeed, it may be that none of the class members can show that the disclosed
APR differed materially from the APR as determined utilizing the authorized methods.
We acknowledge Raceway’s contention at oral argument to that effect, but we cannot
decide that issue on the present record as a matter of law. Rather, it is a question of fact
that should be decided by the trial court in the first instance.
23
from a date prior to consummation of the contract, if the parties agree among themselves
to such a calculation. As noted above, the current version of Regulation Z requires that
the “term of the transaction” used for purposes of calculating and disclosing APR must
be no earlier than the date of consummation. (See 12 C.F.R. § 226, appen. J(b)(2)
(2014).) It does not follow from this requirement regarding how the APR must be
calculated and disclosed to the consumer that there is any substantive limitation on the
date from which interest may be calculated in the contract generally, such that
“preconsummation interest” is an “illegal finance charge,” as Nelson would have it. (See
Nelson, supra, 186 Cal.App.4th at p. 1003.)
In concluding otherwise, Nelson stretches an already thin thread of authority
beyond the breaking point. Nelson cites Krenisky, supra, 728 F.2d at p. 67, fn. 3, and
Rucker v. Sheehy Alexandria, Inc. (E.D. Va. 2002) 228 F.Supp.2d 711, 717 (Rucker I) for
the proposition that “[s]everal courts have decided that accrual dates prior to the date of
consummation are prohibited.” (Nelson, supra, 186 Cal.App.4th at p. 998.) We will set
aside the circumstance that the footnote in Krenisky is dictum from a Second Circuit
Court of Appeals opinion issued thirty years ago, and that this dictum had been followed
in that time period precisely twice before Nelson, once in Rucker I, and again by the same
federal district court in Virginia, as part of the same case. (See Rucker I, supra, at p. 717;
Rucker v. Sheehy Alexandria, Inc. (E.D. Va. 2003) 244 F.Supp.2d 618, 623 (Rucker II or,
24
collectively with Rucker I, Rucker).15) Even these cases cited in Nelson do not support
the conclusion that “preconsummation interest” is an “illegal finance charge.” (Nelson,
supra, at p. 1003.) The cited footnote in Krenisky discusses the term “accrual date” as
“employed for the purpose of calculating the annual percentage rate,” not as employed
for any purpose related to a finance charge. (Krenisky, supra, 728 F.2d at p. 67, fn. 3.)
Similarly, in Rucker I, the court explicitly acknowledges that “[s]ophisticated parties can
choose monthly payment rates and schedules which reflect the imposition of an agreed
upon retroactive interest rate, provided the disclosed APR is calculated according to the
regulations.” (Rucker I, supra, at p. 718, fn. 10.) Indeed, the Rucker court rejects the
plaintiff’s request for actual damages as measured by the amount of preconsummation
interest, reasoning that, among other things, “[a]lthough the APR was not properly
calculated and disclosed, [plaintiff] has not shown that the amount or timing of her
payments itself violated TILA or was otherwise illegal.” (Rucker I, supra, at p. 720, fn.
16.)
In Rucker II, the district court makes the point that preconsummation interest is
not itself illegal or improper just as directly as in Rucker I. The court notes that Krenisky
“held that Regulation Z precludes the use of an earlier effective date when calculating an
APR,” (Rucker II, supra, 244 F.Supp.2d at p. 623, italics added), but “TILA and
Regulation Z do not set limits on what effective terms the parties may agree to; they
merely dictate the manner in which the terms of the credit transaction must be disclosed.”
15 Rucker II is an order denying a motion to reconsider the memorandum opinion
that is Rucker I.
25
(Id. at pp. 625-626). Thus, in the Rucker case, the parties “could have agreed to a
payment schedule which reflects the retroactive imposition of the agreed upon . . . rate
starting on April 3 [the date to which the contract at issue was backdated]; all that TILA
requires is that the disclosed APR on the [contract] be calculated pursuant to the
consummation date of April 13, not the agreed upon effective date of April 3.” (Id. at pp.
625-626.)
In addition, at least one court has explicitly rejected the notion, which underpins
Nelson’s analysis, that a backdated contract results in liability “preconsummation.” In
Nigh v. Koons Buick Pontiac GMC, Inc. (Nigh) the Fourth Circuit considered the
argument that, with respect to a contract entered into on March 5, but backdated to
February 25, disclosures made on March 5 were untimely. (Nigh v. Koons Buick Pontiac
GMC, Inc. (4th Cir. 2003) 319 F.3d 119, 129, revd. on other grounds sub nom. Koons
Buick Pontiac GMC, Inc. v. Nigh (2004) 543 U.S. 50.) The Nigh court rejected the
argument, remarking that, “though superficially clever, [it] is without merit.” (Nigh,
supra, at p. 129.) Though the plaintiff “was liable for monies calculated from
February 25 on, he did not become liable for, those monies until March 5, by which point
he had received the material disclosures.” (Ibid.) Here, similarly, plaintiffs’ backdated
contracts did not cause them to pay a finance charge when no contract existed, as Nelson
would have it. (Cf. Nelson, supra, 186 Cal.App.4th at p. 1003.) Plaintiffs only became
liable for finance charges pursuant to their second or subsequent contract with Raceway
once those contracts were signed, even if their payments were calculated using a starting
date prior to consummation.
26
We conclude that Nelson misreads Krenisky and Rucker, as well as TILA and
Regulation Z, when it declares “preconsummation interest to be an illegal finance
charge.” (See Nelson, supra, 186 Cal.App.4th at p. 1003.)
In sum, the trial court erred by ruling categorically in favor of Raceway with
respect to the claims of the backdating class under the ASFA. The date the second or
subsequent contracts of the members of the backdating class were “consummated”—as
that term is used in Regulation Z and incorporated into the ASFA, and insofar as it relates
to the financial arrangement embodied therein (as opposed to the sale of the vehicle)—is
the date those contracts were signed. New disclosures may have been required with
respect to those second or subsequent contracts, if they constituted a refinancing in the
meaning of Regulation Z. And since the disclosed APR in the second or subsequent
contracts was calculated using a different date as the beginning of the term—namely, the
date of the corresponding initial contract—the disclosures may have fallen outside the
margin of error allowed by Regulation Z, and thereby violated the ASFA. As such, the
trial court’s judgment in Raceway’s favor on plaintiffs’ ASFA claims based on
backdating must be reversed.
Nevertheless, we will not order that judgment be entered instead in favor of Class
One, as plaintiffs have requested. We reject plaintiffs’ contention that any interest
calculated from prior to the actual date of signing of the backdated contracts constitutes
an illegal finance charge. The only potential violation shown by plaintiffs is an
inaccurately calculated APR, which would violate Regulation Z and, by virtue of
Regulation Z’s incorporation by reference into the unlettered first paragraph of section
27
2982, would violate the ASFA. But although the disclosed APR on second or subsequent
contracts of some class members may have fallen outside the margin of error allowed by
Regulation Z, that may not be so for all class members. It is also possible that the only
change between some class members’ initial contract and their second or subsequent
contract was a lowering of the APR. Such a second or subsequent contract would not be
a “refinancing” in the meaning of Regulation Z, and no additional disclosures beyond
those relating to the first contract would be required. We therefore remand to the trial
court to determine in the first instance how best to adjudicate the case given the
potentially differing circumstances of the various members of the backdating class, as it
is currently defined,16 and to conduct any necessary further proceedings.
2. Remedies for Violation of ASFA
Assuming that at least some members of the backdating class can show that their
backdated second or subsequent contract with Raceway is a refinancing in the meaning of
Regulation Z, and the APR disclosed in that contract fell outside of the margin of error
allowed by Regulation Z, the trial court will have to determine what remedy, if any, is
appropriate under the ASFA. Plaintiffs have argued that the damages should be awarded
in accordance with Nelson by treating the contracts as unenforceable and ordering the
remedies of rescission and restitution. We disagree with Nelson’s analysis, and decline to
follow it.
16 Among other things, the trial court will have to determine whether class
resolution of plaintiffs’ backdating claims remains appropriate, and if so what
measures—perhaps redefinition of the class, or formation of subclasses, for example—
may be needed to facilitate adjudication of the claims.
28
The Legislature added the reference to Regulation Z to section 2982 in 1981,
simultaneously amending sections 2983 and 2983.1 regarding the enforceability of
contracts governed by the ASFA. (Stats. 1981, ch. 1075, p. 4125, § 14, operative Oct. 1,
1982; Stats. 1981, ch. 1075, pp. 4132-4133, §§ 18, 19, operative Oct. 1, 1982.) It did not
specify, however, that a failure to comply with Regulation Z would also render the
contract unenforceable. Under section 2983, only violations of section 2981.9, or
subdivisions (a), (j), or (k) of section 2982 make the contract unenforceable: there is no
mention of the incorporation of Regulation Z in the first, unlettered paragraph of section
2982. (§ 2983; see also § 2982.) As Nelson correctly notes, “[t]he language of these
statutes is clear that only the violation of specific disclosure requirements renders the
contract unenforceable.” (Nelson, supra, 186 Cal.App.4th at p. 1001.)
As noted, Nelson finds backdated contracts between a dealership and buyer to
violate section 2981.9 and subdivision (a) of section 2982, thereby rendering the
contracts unenforceable under section 2983. (Nelson, supra, 186 Cal.App.4th at p. 1002.)
Here we part ways with the analysis of our sister court: we find neither subdivision (a) of
section 2982 nor section 2981.9 applicable.17
First, subdivision (a) of section 2982: This subdivision lists various specific
disclosures that must be included in a contract subject to the ASFA and labeled
17 Subdivisions (j) and (k) are the other provisions of section 2982, violation of
which would render a contract unenforceable under section 2983. Nelson explicitly finds
subdivision (j) not to apply to the dealership’s backdated contracts. (Nelson, supra, 186
Cal.App.4th at p. 1005.) No party in Nelson, or here, has argued that subdivision (k)
could apply. We agree with Nelson regarding subdivision (j), and plaintiffs have not
argued that we should do otherwise.
29
“itemization of the amount financed.” (§ 2982, subd. (a).) APR is not one of the items
included in subdivision (a); as noted, the requirement to disclose APR is included in the
ASFA by means of the reference to Regulation Z in the unlettered first paragraph of
section 2982. The natural conclusion, therefore, is that subdivision (a) of section 2982 is
inapplicable to the alleged defect in Raceway’s backdated contracts, namely, inaccurate
disclosure of APR.
In reaching a contrary conclusion, Nelson relies on the notion, which we rejected
above, that any interest accruing from before the consummation date of the contract is an
“illegal charge.” (Nelson, supra, 186 Cal.App.4th at p. 1002.) In addition, Nelson cites
Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950 (Thompson) as authority
for the proposition that, even though “preconsummation interest is not listed as a required
disclosure” in section 2982, subdivision (a), the failure to separately disclose that amount
nevertheless violates that subdivision. (Nelson, supra, at p. 1002.) We disagree,
however, that Thompson is fairly read to support that proposition.
In Thompson, the court considered the effect of a dealership’s inclusion of “over-
allowances” on trade-in vehicles. (Thompson, supra, 130 Cal.App.4th at p. 963.) “Over-
allowance” refers to the difference between the trade-in vehicle’s value as stated in the
contract and the dealer’s evaluation of the vehicle’s value. (Id. at p. 980.) In Thompson,
the dealer used over-allowances to “manipulate numbers” to increase the likelihood the
buyer would be approved for financing by third-party lenders evaluating the transaction.
(Id. at pp. 973, 977, 979-980 & fn. 21.) The Thompson court reaches the unsurprising
conclusion that the use of “phantom” numbers to make a buyer appear creditworthy,
30
thereby defrauding not only lenders, but also buyers (who end up paying increased sales
tax and license fees on inflated cash price amounts, and who also become obligated to
pay for loans they may not otherwise have qualified for and may not be able to afford)
violates the ASFA and constitutes an unfair business practice. (Thompson, supra, at pp.
961, 978-979.)
The “over-allowances” at issue in Thompson are distinguishable, however, from
the inaccurately disclosed APRs at issue in Nelson and (potentially) the case at bar. The
over-allowances in Thompson rendered false other information disclosed the contracts,
including the cash price of the vehicle being purchased, the value of the traded in vehicle,
and the total downpayment—disclosures explicitly required by subdivision (a) of section
2982. (Thompson, supra, 130 Cal.App.4th at p. 979 [noting that including over-
allowances resulted in inaccurate disclosures]; see § 2982, subds. (a)(1)(A), (a)(6)(C),
and (a)(6)(G).) In contrast, an APR calculated improperly in a backdated contract does
not result in the propagation of inaccurate numbers throughout the rest of the contract.
The APR is not used in deriving any information to be disclosed pursuant to subdivision
(a) of section 2982. In other words, Raceway’s backdated contracts not only contain all
the disclosures required by subdivision (a) of section 2982, those disclosures are accurate
in all respects. If anything in the contracts’ disclosures is inaccurate, it is the APR, and,
as noted, APR is not one of the required disclosures listed in subdivision (a) of section
2982. We conclude, therefore, that the backdated Raceway contracts are not rendered
unenforceable because of any violation of that subdivision.
31
Turning now to section 2981.9: This section of the ASFA contains, among other
things, the “single document rule,” requiring that “all of the agreements of the buyer and
seller with respect to the total cost and the terms of payment for the motor vehicle” be
contained “in a single document.” (§ 2981.9; see Nelson, supra, 186 Cal.App.4th at p.
1004.) The purpose of the single document rule is to facilitate the consumer’s review of
the parties’ agreement by forbidding the potentially confusing practice of making
disclosures by reference to information contained only in documents other than the
contract itself. (See 92 Ops.Cal.Atty.Gen. 97, *6, 7 (2009) [“the purpose of the single
document rule [is] the facilitation of the consumer’s review of all of the parties’
agreements before the consumer signs the sale or lease contract, so that the consumer has
complete and accurate information.”].) The single document rule is, at bottom, a
technical rule about document format—a reading buttressed by the circumstance that it
appears in a sentence dictating what font size may be used in the contract. (§ 2981.9
[“Every conditional sale contract subject to this chapter shall be in writing and, if printed,
shall be printed in type no smaller than 6-point, and shall contain in a single document all
of the agreements of the buyer and seller with respect to the total cost and the terms of
payment for the motor vehicle, including any promissory notes or any other evidences of
indebtedness.” (Italics added.)].) It is questionable whether a formatting rule should
have any applicability to alleged inaccuracies in the substance of the document.
Nelson holds that a backdated second contract for a vehicle, similar to those at
issue in this case, violates the single document rule because such a document does not
contain “‘all of the agreements of the buyer and seller with respect to the total cost and
32
the terms of payment for the motor vehicle.’” (Nelson, supra, 186 Cal.App.4th at p.
1004.) The Nelson court observes that a reviewer presented with an original contract and
a backdated second contract would not be able to tell, on the basis of the documents
alone, which is the operative contract, the date the operative second contract was actually
consummated, or whether the buyer had paid a finance charge with respect to a period of
time prior to consummation. (Ibid.) It rejects the argument that the second contract
contains all the required information, because the consummation date, which is “an
essential fact in calculating an accurate APR,” does not appear on the face of that
contract, and the APR disclosed therein is inaccurate, so the “disclosure itself is
meaningless and the informational purpose of the ASFA is not served.” (Ibid.)
We are not persuaded, because Nelson’s reasoning is flawed in multiple respects.
First, we have already rejected Nelson’s erroneous conclusions regarding
“preconsummation” finance charges. Second, the purpose of the single document rule is
to facilitate the consumer’s review of the parties’ agreements, not review by a third party.
(See 92 Ops.Cal.Atty.Gen., supra, at pp. *6-7.) A buyer signing even a backdated
contract may be presumed to know the date that they are signing it.18 Third, there is no
specific requirement in the ASFA that all information necessary to calculate the APR be
disclosed to the buyer: section 2982—via the incorporation of Regulation Z in the first
unlettered paragraph—requires only that the APR itself be disclosed. (See § 2982; 15
18 To be sure, it does not necessarily follow that the buyer knows the import of
the contract’s signing date with respect to determination of the APR, under Regulation Z.
(See Nelson, supra, 186 Cal.App.4th at p. 1004.) But a consumer who signs a non-
backdated contract would not necessarily have any better understanding.
33
U.S.C. § 1638, subd. (a)(4); 12 C.F.R. § 226.18(e) (2014).) Fourth, Nelson’s
interpretation of the single document rule renders a portion of section 2983 superfluous,
specifically, the reference to the disclosure requirements listed in subdivision (a) of
section 2982. (See § 2983, subd. (a) [violation of any provision of § 2982, subd. (a),
renders contract unenforceable]; People v. Isaac (2014) 224 Cal.App.4th 143, 148
[“Statutory interpretations rendering ‘“any part of a statute superfluous are to be
avoided.”’ [Citation.]”].) If a contract containing an inaccurate disclosure necessarily
violated the single document rule, as Nelson suggests—in addition to whatever provision
requires the disclosure in the first instance—any provisions regarding specific disclosure
requirements included in section 2983 would have no significance, because the contract
would be unenforceable anyway for violating the single document rule.
Moreover, Nelson’s interpretation of the single document rule stretches a rule that
on its face deals with format of a contract into a rule governing the accuracy of the
substance of the disclosures contained in the contract, while citing no authority in support
of that expansive interpretation. (See Nelson, supra, 186 Cal.App.4th at pp. 1004-1005.)
The only case cited in Nelson’s discussion of the single document rule is Rucker I.
(Nelson, supra, at p. 1004.) But the portions of Rucker I cited therein consist of language
cherry-picked from discussions of policy reasons underlying Regulation Z, and policy
concerns raised by “the combination of spot delivery contracts and the industry practice
of backdating documents to the original delivery date” and “yo-yo” sales schemes.
(Rucker I, supra, 228 F.Supp.2d at pp. 717-719.) Nothing like the single document rule
is discussed anywhere in Rucker.
34
In short, we conclude that section 2981.9 is not implicated by the potentially
inaccurate disclosures of APR caused by Raceway’s backdating of second or subsequent
contracts. The single document rule governs the format of the contract, not its substance,
and we reject Nelson’s interpretation to the contrary as unpersuasive.
Having decided that neither section 2981.9 nor subdivision (a) of section 2982 is
violated by the inaccurate APR disclosures potentially at issue in this case, and therefore
the contracts are not rendered unenforceable by section 2983, the question remains what
remedy may be available to plaintiffs. It is not apparent that the ASFA provides any
remedy at all. (See Nelson, supra, 186 Cal.App.4th at pp. 1001-1002 [“we cannot say
that the failure to afford a remedy [for a violation of Regulation Z] resulted from a
legislative oversight.”].) The ASFA does not provide for statutory damages, and on its
face provides for recovery of actual damages only for specific violations, not applicable
here. (See, e.g., § 2983, subd. (b) [buyer entitled to actual damages sustained for
violations of § 2982, subd. (a)(2) or (5)]; § 2983.1, subd. (e)].) In any case, the only
evidence of purported actual damages submitted by plaintiffs consisted of evidence they
paid “preconsummation interest.” We concluded above that “preconsummation interest”
is neither illegal nor improper under Regulation Z, so “preconsummation interest” does
not constitute damages.19
19 Rucker I states that, absent a showing that a plaintiff not only read the
disclosures at issue, but also “would have negotiated further or shopped around for better
credit terms had the APR been properly presented,” and further would have obtained
better credit terms, a plaintiff cannot recover actual damages for inaccurate APR
disclosures under TILA. (Rucker I, supra, 228 F.Supp.2d at p. 720.) But we need not,
[footnote continued on next page]
35
Furthermore, plaintiffs (unlike the plaintiff in Rucker) asserted no claim under
TILA, so the statutory damages available under federal law for violations of the APR
disclosure requirement governed by Regulation Z are unavailable to plaintiffs here. (See
Rucker I, supra, 228 F.Supp.2d at p. 720 [discussing 15 U.S.C. § 1640, providing
statutory damages for violation of APR disclosure requirement set at twice the amount of
the finance charge in connection with the transaction, bounded by a statutory minimum of
$100 and a statutory maximum of $1,000].) Nevertheless, plaintiffs did bring claims
under other provisions of California law besides ASFA. We therefore turn now to Class
One’s CLRA and UCL claims.
3. CLRA Claims
The CLRA lists various proscribed “unfair methods of competition and unfair or
deceptive acts or practices.” (§ 1770, subd. (a).) On appeal, plaintiffs argue, based on
Nelson, that Class One is entitled to judgment in its favor on its CLRA claims because
the backdated contracts at issue fall within the ambit of section 1770, subdivision (a)(14):
“Representing that a transaction confers or involves rights, remedies, or obligations
which it does not have or involve, or which are prohibited by law.”20 (§ 1770, subd.
[footnote continued from previous page]
and do not decide here whether a similar standard should apply under the ASFA: absent a
showing of damages, it is not necessary to determine whether those damages were
proximately caused by the alleged violation.
20 The SAC makes reference to other provisions of section 1770, subdivision (a),
besides subdivision (a)(14). Nevertheless, plaintiffs have made no argument on appeal
based on these other subdivisions. As such, we need not, and do not, consider their
applicability, because any claims based thereon are waived. (See Paulus v. Bob Lynch
[footnote continued on next page]
36
(a)(14).) We disagree, and affirm the trial court’s judgment in Raceway’s favor on Class
One’s CLRA claims.
In Nelson, the court concluded that a dealership violates section 1770, subdivision
(a) by entering into backdated second contracts that disclose inaccurate APRs because, by
doing so, the dealership represents that it has the “legal right to collect finance charges
effective [the date of the original contract], an obligation prohibited by Regulation Z.”
(Nelson, supra, 186 Cal.App.4th at p. 1023.) As noted above, however, we disagree with
Nelson’s conclusion “preconsummation interest” constitutes an “obligation prohibited by
Regulation Z.” (Ibid.) Regulation Z governs how APR is to be calculated and disclosed
to the consumer; it does not prohibit the parties from contracting for interest to be
calculated from a date prior to the consummation of the contract. As such, plaintiffs’
assertion they “were obligated to pay a finance charge they were not obligated to pay” is
incorrect. Nor do the contracts at issue involve an obligation that is “prohibited by law.”
(See § 1770, subd. (a)(14).) We therefore affirm the trial court’s judgment in favor of
Raceway with respect to Class One’s claims under the CLRA, and need not consider
what remedies might be available to plaintiffs under the CLRA.
4. UCL Claims
The UCL “borrows” violations of other laws and treats them as “unlawful . . .
business act[s] or practice[s]” that the UCL makes independently actionable. (Bus. &
[footnote continued from previous page]
Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [failure to raise an issue in opening brief and
support it by argument or citation to authority waives the issue].)
37
Prof. Code § 17200; see Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 180.) “After the 2004 amendment of the UCL by
Proposition 64, a private person has standing to sue only if he or she ‘“has suffered injury
in fact and has lost money or property as a result of [such] unfair competition.”’
[Citation.]” (Nelson, supra, 186 Cal.App.4th at p. 1013.) “In the context of a class
action, only the class representatives must meet Proposition 64’s standing requirements
of actual injury and causation. [Citation.]” (Ibid.)
Assuming that at least some members of Class One can show that their second or
subsequent contracts with Raceway were refinancings, requiring new disclosures, and the
disclosed APR fell outside the margin of error allowed by Regulation Z, then there would
be little question Raceway committed an “unlawful . . . business act or practice” in the
meaning of the UCL. (Bus. & Prof. Code § 17200.) Nevertheless, Class One’s UCL
claims falter on the requirement that they demonstrate standing, as required by
Proposition 64. Plaintiffs, following Nelson, contend that they have standing to bring
UCL claims, based on their payment of “preconsummation interest.” (See Nelson, supra,
186 Cal.App.4th at p. 1014.) Again, however, we reject Nelson’s conclusion that
“preconsummation interest” is illegal or prohibited, so such payments do not constitute
an injury. Plaintiffs have not proposed any other theory whereby Class One suffered an
injury in fact resulting from the backdated contracts at issue, let alone any theory of
causation. We therefore affirm the trial court’s judgment in favor of Raceway on Class
One’s UCL claims on the basis that plaintiffs have not demonstrated standing for their
38
UCL claims, and we need not consider what remedies might be available to plaintiffs
under the UCL.
5. Conclusion
It is possible that Raceway violated the ASFA with respect to at least some
members of Class One, namely, those whose second or subsequent contracts with
Raceway constitute “refinancings” (as that term is defined in Regulation Z) and disclose
APRs that are outside of the margin of error allowed by Regulation Z. If so, however,
contra Nelson, that does not render the contracts unenforceable, because neither section
2981.9 nor subdivision (a) of section 2982 is implicated by such inaccurately disclosed
APRs. The ASFA—unlike TILA—does not provide for statutory remedies, and
plaintiffs’ only theory of actual damages presented in the litigation relies on Nelson’s
analysis of “preconsummation interest” that we have rejected. Plaintiffs’ claims under
the CLRA and the UCL, which might otherwise provide additional remedies besides
those authorized by the ASFA, fail because plaintiffs have not demonstrated Raceway
engaged in any of the acts proscribed by the CLRA, nor shown standing to bring a UCL
claim. Thus, even if Class One (or some subsection thereof) is able to demonstrate a
verdict in its favor on its ASFA claims is appropriate, only a symbolic judgment
unaccompanied by any specific remedy would be available in these circumstances.
It is worth noting here, however, that further adjudication of the merits of Class
One’s ASFA claims is not necessarily an idle exercise, even if no substantial monetary or
other remedy is available to plaintiffs. The trial court previously awarded attorney fees
and costs in the amount of $1,503,084.50 to Raceway as the prevailing party under the
39
ASFA. (See § 2983.4 [“Reasonable attorney’s fees and costs shall be awarded to the
prevailing party in any action on a contract . . . subject to the provisions of this
chapter . . . .”].) A judgment in favor of plaintiffs—even a symbolic judgment
unaccompanied by an award of monetary damages or other remedy—would necessarily
alter the trial court’s “prevailing party” analysis.
C. Smog Fee Claims
Among the items that the subdivision (a) of section 2982 requires to be disclosed
are “[t]he fee charged by the seller for certifying that the motor vehicle complies with
applicable pollution control requirements,” and “[t]he amount of the state fee for issuance
of a certificate of compliance, noncompliance, exemption, or waiver pursuant to any
applicable pollution control statute.” (§ 2982, subds. (a)(1)(C) & (a)(4).) The members
of Class Two were charged such fees as a result of a computer error, even though, as
purchasers of used diesel vehicles, no smog check was performed by Raceway on their
vehicles, nor was any state fee for smog certification necessary.21 Plaintiffs contend that
21 Since January 1, 2010, diesel vehicles meeting certain requirements have been
required to undergo smog inspections and obtain smog certification similar to those
required of gasoline vehicles. (Health & Safety Code § 44011, subd. (a)(8), added by
Stats. 2007, ch. 739, § 3, operative Jan. 1, 2010.) During the time period at issue in this
case, however, such requirements were imposed only on gasoline vehicles, and Raceway
agrees the smog-related fees should not have been charged.
Plaintiffs suggest the cynical view that the “computer error” could have been “just
a scheme to see how many illegal charges can be slipped into deals before someone
catches on,” but the trial court made the factual finding that there was no such scheme,
only a “bona fide error.” We have no cause to disturb that finding.
40
the erroneous charges resulted in Raceway violating subdivision (a) of section 2982.22
The trial court entered judgment in favor of Raceway, apparently agreeing that the ASFA
had been violated, but concluding that Raceway had cured the violation: “Raceway is not
legally required to do more to correct its erroneous collection of smog fees . . . . The
court finds it to have been a bona fide error corrected with full refunds plus interest
within a reasonable time under the Automobile Sales Finance Act.” We agree with the
trial court’s result, but not its reasoning: We find no violation of the ASFA by Raceway
with respect to Class Two.
The ASFA requires “full disclosure of all items of cost,” including the items
specifically enumerated in subdivision (a) of section 2982. (Thompson, supra, 130
Cal.App.4th at p. 966; § 2982, subd. (a).) Plaintiffs argue that Raceway violated this
requirement by failing to “accurately disclose the amount due from the class members”
with respect to smog fees. This is not quite true, however, if by “amount due” is meant
“the amount due pursuant to the transaction agreed to by the parties.” There are no
hidden, undisclosed costs in the contracts entered into by the members of Class Two; the
amounts charged for smog-related fees were accurately and explicitly stated in writing,
22 Plaintiffs further argue in their reply brief that Raceway also violated the single
document rule codified in section 2981.9 by charging the smog-related fees to the
members of Class Two. This argument was waived, however, by plaintiffs’ failure to
raise it in their opening brief. (Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.”].) In any
case, the argument is without merit, for the same reasons as discussed above in relation to
application of the single document rule to backdated contracts disclosing an inaccurately
calculated APR.
41
and the terms of the deal, including the smog fees, were accepted by the customers when
they signed their contracts. The only purported “inaccuracy” is that, the parties agree, if
they had more closely considered the provisions regarding smog-related fees at the time
of the transaction, the contract they agreed to enter into would have been different. The
question we must answer is whether section 2982 governs this sort of circumstance.
We conclude it does not. Like the single document rule, discussed above, section
2982 governs the “formalities” of contracts, not their substance. (See § 2982 [entitled
“Formalities of conditional sale contracts”].) Subdivsion (a) of section 2982 requires a
comprehensive “itemization of the amount financed,” with specific disclosures that must
be made in the contract. (§ 2982, subd. (a).) If the disclosures are made, and are true in
the sense of accurately describing the terms of the parties’ agreement, then the contract
comports with the requirements for the “formalities” of conditional sale contracts.
The authority cited by plaintiffs does not require the conclusion that Raceway
violated the ASFA because of the charges accurately described, but erroneously included
in the contracts between Raceway and the members of Class Two. Authority addressing
contracts that do not accurately describe the parties’ agreement is not on point here. In
Nelson, for example, the improperly calculated APR figure disclosed in the contracts at
issue provided false information about the transaction—specifically, the cost of credit
expressed as a yearly rate—to the consumer.23 (Nelson, supra, 186 Cal.App.4th at p.
23 As discussed above with respect to Class One, we agree with Nelson that
disclosure of an inaccurate APR violates section 2982, though we disagree about
[footnote continued on next page]
42
1005.) In Bratta v. Caruso Car Co. (1958) 166 Cal.App.2d 661, the contract at issue
recited that the consumer had paid a cash down payment, but in fact only a promissory
note for the amount of the down payment had been executed. (Id. at pp. 664-665.) Most
egregiously, the disclosures in Thompson, incorporating “phantom” numbers designed to
mislead potential lenders, among others, did not come close to describing the true
transaction between dealer and buyer. (Thompson, supra, 130 Cal.App.4th at p. 961.) In
contrast, the contracts between Raceway and the members of Class Two accurately
disclose the economics of the transaction agreed to by the parties in all respects.
To be sure, a primary goal of the ASFA’s disclosure provisions is to “protect
purchasers against excessive charges . . . .” (Kunert v. Mission Financial Services Corp.
(2003) 110 Cal.App.4th 242, 248 (Kunert).) The ASFA attempts to achieve that goal in a
specific manner, namely, “by requiring full disclosure of all items of cost.” (Kunert,
supra, at p. 248.) Here, despite full disclosure of all items of cost, the members of Class
Two were charged fees that the parties now agree should not have been charged, so the
goal of protecting purchasers from excessive charges was not initially achieved. It does
not follow, however, that the “informational purpose of the ASFA [was] not served.”
(Nelson, supra, 186 Cal.App.4th at p. 1005.) We disagree that a contract can disclose
accurately every dollar that is part of a transaction agreed to by the parties, and
nevertheless constitute a violation of ASFA disclosure provisions. The members of Class
[footnote continued from previous page]
precisely which part of the statute is implicated, and therefore what remedy is available
for the violation.
43
Two received all the information that the ASFA required them to receive; among other
things, they were informed, in writing, how much they were being charged for smog-
related fees. They just did not act on that information by verifying that all of the listed
charges were appropriate prior to signing.24
Our conclusion—that section 2982, subdivision (a) is not violated in the
circumstances of this case, so the trial court’s judgment in Raceway’s favor with respect
to the claims of Class Two should be affirmed—does not leave other vehicle buyers who
are charged inappropriate fees by dealerships without redress. It seems likely that one or
another provision of California statutory or common law would provide such consumers
a remedy—albeit perhaps not the rescission and restitution sought by plaintiffs under the
ASFA—especially if, unlike Raceway, the dealership at issue was not forthcoming with
payment of refunds, or had charged inappropriate fees with fraudulent intent. Class Two,
however, asserts only a claim under the ASFA: plaintiffs did not appeal the trial court’s
denial of class certification for Class Two’s UCL claims, and did not assert any claims
under other legal or equitable theories. We need not consider here, therefore, what other
claims might have been brought on these, or similar, facts. In addition, because we
conclude plaintiffs failed to demonstrate any violation of the ASFA with respect to Class
24 This is not to say that blame for the improper charges should be placed on the
consumer. Of course, Raceway erred by charging inappropriate fees, and that error is
ultimately Raceway’s responsibility. Nevertheless, both Raceway and the members of
Class Two missed an opportunity to catch the errors in the first instance, by carefully
reviewing all items of cost listed in the contract prior to signing. And the question of
whether Raceway was in the wrong for charging the fees is a separate question from
whether the ASFA’s disclosure provisions were violated.
44
Two, we need not consider the parties’ arguments with respect to whether Raceway
successfully cured any violation.
D. Credit Application Claims
It is undisputed that Raceway had a policy of providing each customer a copy of
any credit application made during the course of negotiations, as required by the ASFA.
(See § 2981.9.) Certain individual plaintiffs, however, assert that this policy was not
implemented in their case—that they did not receive copies of their credit applications
from Raceway. The trial court ruled in favor of Raceway on the issue. On appeal,
plaintiffs contend that Raceway’s evidence of a policy or practice is insufficient as a
matter of law to overcome the “transaction-specific testimony” of the individual plaintiffs
who testified that they did not receive copies of their credit applications. They
additionally contend—somewhat half-heartedly—that the trial court’s decision was
“based on an incorrect legal basis.” We disagree with both of these contentions.
The ASFA requires that, prior to delivery of a vehicle to a buyer pursuant to a
contract subject to that chapter, the seller must provide the buyer certain documents,
including a copy of “any credit statement which the seller has required or requested the
buyer to sign and which he or she has signed during the contract negotiations.”
(§ 2981.9.) The trial court ruled that plaintiffs “failed to meet their burden of proof” with
respect to their claim that Raceway had violated this provision of the ASFA, explaining
that “no credit applications were needed or required with the second contract, and there
was competent but conflicting evidence presented on both sides of the issue as to whether
copies were provided with the first contract.”
45
Plaintiffs’ argument regarding the “legal standard” applied by the trial court is
quickly dispatched. Plaintiffs assert that “[t]o the extent the trial court based its decision
on whether a credit application was required solely for the second contract, the decision
was based on an erroneous legal standard.” This argument, however, only knocks down
a straw man: the trial court applied no such standard. The trial court made the
(undisputed) factual finding that consumers who entered into second or subsequent
contracts with Raceway were not required to submit new credit applications, so there
could have been no violation of section 2981.9 with respect to those contracts.25
The trial court further found plaintiffs failed to establish any violation of section
2981.9 with respect to plaintiffs’ initial contracts with Raceway. As noted, Raceway
presented testimony establishing it had a policy and practice to provide each customer a
copy of any credit application. Such testimony is circumstantial evidence supporting the
conclusion that, in any given instance, the customer did in fact receive a copy. (See
Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 (Hasson) [“the fact that evidence is
‘circumstantial’ does not mean that it cannot be ‘substantial’”].) The trial court
acknowledged that plaintiffs submitted competent evidence to the contrary, but found
plaintiffs did not prove their case by a preponderance of the evidence.
Plaintiffs contend the “transaction-specific” testimony of individual plaintiffs that
the policy was not followed in their particular cases should have been given controlling
25To the extent the trial court’s language in its Statement of Decision may be
viewed as ambiguous, we here resolve that ambiguity in favor of affirmance. (City of
Santa Maria, supra, 211 Cal.App.4th at 286.)
46
weight. We disagree. It is hornbook law that a trier of fact is “entitled to accept
persuasive circumstantial evidence even where contradicted by direct testimony.
[Citations.]” (Hasson, supra, 19 Cal.3d at p. 548; see also CACI No. 202 [“As far as the
law is concerned, it makes no difference whether evidence is direct or indirect. You may
choose to believe or disbelieve either kind.”].) The trial court was entitled as the trier of
fact in this case to give whatever weight it chose to plaintiffs’ “transaction-specific”
testimony—including none at all—and we will not reweigh the evidence here. (See
Cuiellette, supra, 194 Cal.App.4th at p. 765.) Plaintiffs’ evidence does not compel a
conclusion in their favor as a matter of law, so the trial court’s finding that they did not
meet their burden of proof with regard to the alleged violations of section 2981.9 will be
affirmed. (See Sonic, supra, 196 Cal.App.4th at pp. 465-466.)
E. Individual Claims of Francisco Salcedo
As noted, the trial court found Raceway liable for common law fraud with respect
to Mr. Salcedo, because it misrepresented that he “could not refuse to sign a second
contract and unwind the transaction,” when Raceway was unable to assign his initial
contract for purchase of a vehicle. Mr. Salcedo also asserted individual claims under the
UCL and CLRA, based on the same fraudulent misrepresentations by Raceway. The trial
court never explicitly ruled on Mr. Salcedo’s UCL and CLRA claims, although the
parties and the court apparently understood the court’s judgment on those claims to be in
favor of Raceway. Plaintiffs contend that, as a matter of law, the same facts that
established judgment should be entered in Mr. Salcedo’s favor on his common law fraud
47
claim also establish a violation of the UCL and CLRA, so he is entitled to judgment in his
favor on those claims, as well. We agree.
Both the UCL and the CRLA provide remedies in addition to other remedies or
procedures under California Law. (See Bus. & Prof. Code, § 17205 [UCL is “cumulative
. . . to the remedies or penalties available under all other laws of this state”]; Civ. Code,
§ 1752 [CRLA remedies “are not exclusive,” but rather “in addition to any other
procedures or remedies for any violation or conduct provided for in any other law”].) It
is uncontroversial that a business practice that meets the standard for liability for
common law fraud would also suffice to establish liability under the “unlawful” or
“fraudulent” prongs of the UCL (even if the converse may not be true). (See Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211
[allegations of actual deception, reasonable reliance, and damage are unnecessary for
UCL claim]; id. at pp. 209-210 [Bus. & Prof. Code, § 17200 “is not restricted to
deceptive or fraudulent conduct but extends to any unlawful business practice”].)
Similarly, Raceway’s false representation to Mr. Salcedo that he was obligated to
purchase an alternative vehicle, and could not unwind the transaction, violates the
CRLA’s prohibition on “[r]epresenting that a transaction . . . involves . . . obligations
which it does not have or involve, or which are prohibited by law.” (Civ. Code, § 1770,
subd. (a)(14).
Indeed, though Raceway never explicitly concedes the point, neither does it offer
any argument why the elements of Mr. Salcedo’s individual UCL and CLRA claims
might not have been established, even though he did prove common law fraud. Instead,
48
Raceway’s response is, in essence, that Mr. Salcedo is not entitled to any further
remedies, since he was already granted rescission. The issue of remedies, however, is a
separate question from whether Mr. Salcedo is entitled to judgment in his favor.
Nevertheless, it is not implausible that Mr. Salcedo should not be awarded any
additional remedies. He already has been awarded damages in the form of rescission and
restitution, and the trial court has already determined that he is not entitled to punitive
damages. The UCL provides only injunctive, restitutionary and related relief. (Bus. &
Prof. Code, § 17203.) The CRLA provides for a broader range of remedies, but prior to
trial plaintiffs stipulated that they brought their CRLA claims “for injunctive relief only.”
(Original italics.) Moreover, it seems unlikely that injunctive relief would be appropriate,
given that the record is devoid of any evidence of similar misrepresentations to other
customers, or any other indication that the misrepresentations to Mr. Salcedo were
anything other than a one-time event.
In any case, the issue of remedies is one that should be decided by the trial court in
the first instance. Here, it is not apparent from the record that the trial court ever
considered whether Mr. Salcedo might be entitled to any additional remedies, based on
his individual UCL and CLRA claims, over and above those awarded for his common
law fraud claim. On remand, the trial court should enter judgment in Mr. Salcedo’s favor
on his individual UCL and CLRA claims, and determine—explicitly, and on the record—
what remedy, if any, Mr. Salcedo should be awarded with respect to those claims. Mr.
Salcedo also should be treated as the prevailing party not only with respect to his fraud
49
claim, but also his individual UCL and CLRA claims, for purposes of determining any
award of attorney fees and costs.
F. Fee Order
Our ruling here with respect to plaintiffs’ appeal of the judgment below
undermines the basis for the trial court’s award of fees to Raceway, namely, the
proposition that Raceway prevailed on all claims asserted by plaintiffs except for Mr.
Salcedo’s fraud claim. As such, we need not address the merits of the arguments raised
by the parties in plaintiffs’ appeal and Raceway’s cross-appeal of the fee order: the fee
order must be vacated, and the issue of attorney fees and costs remanded for
reconsideration following final adjudication of all claims.
V. DISPOSITION
In case No. E054517, the judgment below is affirmed in part and reversed in part
as follows:
- With respect to Class One’s cause of action for violation of the ASFA, the
judgment is reversed, and the matter remanded to the trial court for any further
proceedings necessary to determine whether the members of Class One, or
some subsection thereof, can establish a violation of the ASFA under the law
as explicated in this opinion.
- With respect to Class One’s UCL and CLRA causes of action, the judgment is
affirmed.
- With respect to Class Two’s claims under the ASFA, the judgment is affirmed.
50
- With respect to the claims of plaintiffs Carl Stone, Deborah Stone, Francisco
Salcedo, Anselmo Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott,
Martha Ott, Eldridge Johnson, Randal Kidd, Macon Pollard, Ozetta Pollard,
and Suzanna Moreno under the ASFA in their individual capacities regarding
their credit applications, the judgment is affirmed.
- With respect to the causes of action asserted by plaintiff Francisco Salcedo
under the UCL and the CLRA in his individual capacity, the judgment is
reversed; the trial court is directed to enter judgment in favor of Mr. Salcedo
on those causes of action, and to determine what additional remedies, if any,
other than those he has already been awarded with respect to his cause of
action for common law fraud, he should receive.
- The judgment is affirmed in all other respects.
In case No. E056595, the trial court’s fee order is vacated, and the matter of an
award of attorney fees and costs remanded for determination by the trial court, after final
adjudication of all claims.
The parties shall each bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
51