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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