Wednesday, March 27, 2019

California Court of Appeal, Second Appellate District, Refugio Valdez v. Seidner-Miller, Inc., Docket No. B281003, Certified for Publication


California Law
Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.)
Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.)
Civil Code Section 16321 (Requiring Translation of Certain Contracts; Vehicle Leasing Act)
30 Days’ Advance Notice
Appropriate Correction
Deadline, Method of Computation
Common Law
Tagalog

Section 1782, subdivision (b), provides that a consumer may not bring an “action for damages” for violation of the CLRA if, after giving the business 30 days’ advance notice of the alleged violations, the business provides a timely and “appropriate correction, repair, replacement, or other remedy.”
The CLRA proscribes “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer,” including, as alleged by Valdez: “(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have . . . . [¶] . . . (14) Representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law. . . . (17) Representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction. (18) Misrepresenting the authority of a salesperson, representative, or agent to negotiate the final terms of a transaction with a consumer.” (§ 1770, subd. (a).)
At least 30 days “prior to the commencement of an action for damages” under the CLRA, the consumer must provide written notice “of the particular alleged violations of Section 1770” and “demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.” (§ 1782, subd. (a).) Further, “no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.” (§ 1782, subd. (b).)
Where a business conditions its offer to remedy a violation of the CLRA on the consumer waiving his or her right to injunctive relief and remedies under other statutes and common law, the offer is not an appropriate correction offer as contemplated by section 1782, subdivision (b), and does not bar a lawsuit by the consumer. Neither can the business demand as part of its correction offer that the consumer consent to additional settlement terms unrelated to the compensation necessary to make the consumer whole.
Valdez contends that by conditioning relief on release of claims not subject to the CLRA’s prelitigation notice requirements and on compliance with other settlement terms, including Seidner’s subjective approval of the vehicle’s condition, Seidner’s settlement offer was not an appropriate correction offer as contemplated by section 1782, subdivision (b). We agree. Seidner’s draft settlement agreement contained a broad release of known and unknown claims, including an agreement that the parties release each other “from any and all past, present, and future claims, demands, causes of action, obligations, damages, injuries, liens, and liabilities, of any nature whatsoever, relating to or arising out of the Action.” In addition to a release of claims, the draft settlement agreement contained a covenant not to sue under which the parties and their attorneys “agree never to commence or prosecute, nor voluntarily aid in the commencement of prosecution of any claims, demands, causes of action, obligations, damages, injuries, liens, and liabilities, of any nature whatsoever, against the other parties hereto . . . , which arise out of or which related in any way to any of the claims, demands, causes of action, obligations, damages, injuries, liens, and liabilities which comprise the subject matter of this Agreement.” The draft settlement agreement defined “Action” as Valdez’s “demand” in its CLRA notice to Seidner.
This broad release language and covenant not to sue would have prohibited Valdez from asserting his section 1632, UCL, and fraud claims and his claim for injunctive relief under the CLRA. Yet Valdez had a right to bring those claims without first providing notice under the CLRA. As to a CLRA claim, a timely and appropriate correction under section 1782, subdivision (b), only bars a claim for damages, not injunctive relief. (§ 1782, subd. (b) [“no action for damages may be maintained under Section 1780” if an appropriate correction offer is made (italics added)] & subd. (d) [“An action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without compliance with subdivision (a).”]; Meyer, supra, 45 Cal.4th at p. 645 [“Section 1782, subdivision (d) contemplates the filing of a CLRA action for injunctive relief alone, and such actions are not subject to the requirements of subdivisions (a) and (b) of notice and allowance for voluntary correction.”]; Flores v. Southcoast Automotive Liquidators, Inc. (2017) 17 Cal.App.5th 841, 850 (Flores) [“An action for injunctive relief under section 1770 may be filed without sending a notice under section 1782, subdivision (a).”]; see Gonzales v. CarMax Auto Superstores, LLC (9th Cir. 2017) 845 F.3d 916, 918 [defendant’s correction offer did not bar plaintiff’s recovery of attorney’s fees where plaintiff sought only injunctive relief for violation of the CLRA].)
If a consumer files an action under section 1780 seeking only injunctive relief, he or she may amend the complaint without leave of court to seek damages after complying with the requirements for notice and a correction offer under section 1782, subdivisions (a) and (b). (§ 1782, subd. (d).)
Here, Valdez sought injunctive relief under the CLRA and UCL, prohibiting Seidner “from entering into lease agreements without providing appropriate translations, prior to execution, when negotiations are conducted primarily in a language other than English . . . .” Injunctive relief is available under both the CLRA and the UCL.
In addition, as our colleagues in Division Five concluded in Flores, a “reasonable correction offer prevents the plaintiff from maintaining a cause of action for damages under the CLRA, but does not prevent the plaintiff from pursuing remedies based on other statutory violations or common law causes of action based on conduct under those laws.” (Flores, supra, 17 Cal.App.5th at p. 850.) As the Flores court observed, “plaintiffs routinely plead fraud, UCL, and CLRA claims based on similar allegations.” (Ibid.) Further, “the remedies of the CLRA are cumulative of other rights.” (Id. at p. 849.) Section 1752 provides, “The provisions of this title are not exclusive. The remedies provided herein for violation of any section of this title or for conduct proscribed by any section of this title shall be in addition to any procedures or remedies for any violation or conduct provided for in any other law. . . . If any act or practice proscribed under this title also constitutes a cause of action in common law or a violation of another statute, the consumer may assert such common law or statutory cause of action under the procedures and with the remedies provided for in such law.”
Here, Valdez asserted a claim for violation of section 1632, subdivision (b)(1), which provides in relevant part, “Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into [an agreement subject to the provisions of section 2985.7 (Vehicle Leasing Act)], shall deliver to the other party to the contract or agreement and prior to the execution thereof . . . a translation of every term and condition in that contract or agreement . . . .” (See Lopez v. Asbury Fresno Imports, LLC (2015) 234 Cal.App.4th 71, 77 [when both parties use a foreign language to negotiate the transaction, § 1632 “prevents the seller from suddenly springing on the buyer a contract written in English and expecting the buyer to sign it without reviewing its terms”]; Reyes v. Superior Court (1981).)
We recognize many of the remedies available to Valdez under section 1632, the UCL, and for fraud were duplicative of the remedies available for violation of the CLRA. We do not suggest Valdez will be entitled to double recovery at trial; rather, he can pursue his claims under multiple statutes and common law, leaving the determination of appropriate remedies to the trial court at trial.
Seidner could have made an appropriate correction offer had it offered simply to refund Valdez’s down payment and monthly payments, pay off the outstanding loan balance, and pay attorney’s fees and costs. Although Valdez would still have been able to pursue his other claims, nothing would have prevented Seidner from attempting to negotiate a separate settlement of those claims. But Seidner’s effort to exact additional concessions from Valdez as part of a global settlement ran afoul of sections 1752 and 1782, subdivisions (b) and (d), of the CLRA. Because Seidner did not make an appropriate correction offer, it failed to meet its burden of showing a complete defense to Valdez’s claims to support the grant of summary judgment.
(Code of Civil Procedure section 12a, subdivision (a), provides that “if the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.” A “holiday” is defined to include Saturdays (Code Civ. Proc. § 12a, subd. (a)) and Sundays (id., § 10). Contrary to Valdez’s contention, nothing in Code of Civil Procedure section 12a limits its application to business institutions and government offices that would be inaccessible on weekends. (See DeLeon v. Bay Area Rapid Transit Dist. (1983) 33 Cal.3d 456, 460 [“Consistent with the need for certainty in the method of computing time, a case will not be found to come under an exception to the general rule [under section 12a] unless there is a clear expression of provision for a different method of computation.”]; Ystrom v. Handel (1988) 205 Cal.App.3d 144, 147-148 [rejecting contention that Code Civ. Proc., § 12a only applies to acts requiring access to a courthouse or other public office].))


(California Court of Appeal, Second Appellate District, March 27, 2019, Refugio Valdez v. Seidner-Miller, Inc., Docket No. B281003, Certified for Publication)

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