Filed 2/4/21 Baker v. Yamaha Motor Corporation, USA CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
KYLE BAKER,
Plaintiff and Appellant, E072089
v. (Super.Ct.No. MCC1500556)
YAMAHA MOTOR CORPORATION, USA, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge.
Affirmed.
Pestotnik and Ross H. Hyslop for Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Theane Evangelis, Timothy W. Loose, Daniel R. Adler
and Emily R. Sauer for Defendant and Respondent.
Plaintiff and appellant Kyle Baker sued defendant and respondent Yamaha Motor
Corporation, U.S.A. (Yamaha), a California corporation, alleging that its failure to furnish
hanging price tags (hang tags) to its independent dealer Temecula Motorsports, Inc. (TMI)
1 in 2012, as required by Vehicle Code former section 24014,1 subdivision (a), made it
impossible for consumers to determine the true prices of its new, assembled motorcycles.
Baker alleged causes of action for unfair competition (UCL; Bus. & Prof. Code, § 17200
et seq.), false advertising (FAL; Bus. & Prof. Code, § 17500 et seq.), and aiding and
abetting. The trial court granted summary judgment in favor of Yamaha on the grounds
Baker lacked standing because the undisputed evidence showed he was not harmed by the
absence of the “Yamaha hang tags.”
On appeal, Baker does not challenge the undisputed facts. Rather, he contends the
court erred in (1) concluding he lacked standing by misinterpreting and narrowly
applying the particularized interests protected by sections 24014 and 11712.5, (2)
concluding there was no UCL violation because he had knowledge of Yamaha’s MSRP,2
(3) treating “standing” as an “element” of his claims, (4) concluding TMI’s “disclosures”
on its hang tag discharged Yamaha’s duties under section 24014, (5) ignoring disputed
material facts it deemed irrelevant, and (6) adjudicating his aiding and abetting claim in
Yamaha’s favor. We reject Baker’s contentions and conclude, on the evidence presented,
he failed to raise a triable issue of whether he was harmed by Yamaha’s failure to furnish
hang tags to TMI. We therefore affirm the judgment.
1For clarity, “section 24014” refers to Vehicle Code former section 24014 (as amend. by Stats. 1978, ch. 623, § 1). All further statutory references are to the Vehicle Code unless otherwise indicated.
2 Manufacturer’s suggested retail price.
2 I. PROCEDURAL BACKGROUND AND FACTS
Yamaha sells its products, including motorcycles, through independent dealers,
such as TMI, who purchase these products at wholesale prices. The dealers sell the
motorcycles to customers at individually negotiated prices. Yamaha does not receive
information from dealers about the prices they charge in retail transactions, nor does it
have any control over how much dealers charge their customers. Yamaha’s dealer
agreements require dealers to “‘conduct and maintain at all times [their] sales and service
operations in strict compliance with all applicable federal and state laws and regulations,
county and city ordinances and regulations and any other applicable law, regulation or
ordinance.’”
In 2012, the year relevant to this case, California law required dealers to attach
hang tags (furnished by motorcycle manufacturers and approved by the Department of
Motor Vehicles (DMV)), which indicate the “recommended retail price of the
motorcycle” and the “recommended price for each accessory or item of optional
equipment physically attached to the motorcycle at the time of its delivery to the dealer.”
(§ 24014, subd. (a)(1), (a)(2).)3 On October 29, 2012, Yamaha sent a letter to its
3 Section 24014 provided: “(a) No dealer shall sell, offer for sale, or display, any new, assembled motorcycle on its premises, unless there is securely attached to its handlebar a label, approved by the Department of Motor Vehicles, furnished by the manufacturer, on which the manufacturer shall clearly indicate the following: [¶] (1) The recommended retail price of the motorcycle. [¶] (2) The recommended price for each accessory or item of optional equipment physically attached to the motorcycle at the time of its delivery to the dealer. [¶] (b) The dealer shall clearly indicate on the label, furnished by the manufacturer, the following: [¶] (1) The amount charged, if any, over and above the suggested retail price for transportation to the dealership. [¶] (2) The [footnote continued on next page]
3 California motorcycle dealers regarding the use of DMV-approved Yamaha hang tags.4
DMV’s approval of Yamaha’s hang tag format was effective December 21, 2012. Prior
to October 2012, TMI prepared its own hang tags.
In June 2012, Baker shopped for a new Yamaha R6 motorcycle (R6) by
researching on the Internet and comparing prices at Fun Bike Center and TMI. At TMI,
the R6 had a TMI hang tag5 that listed Yamaha’s MSRP of $10,890, an amount Baker
previously had seen on Yamaha’s Web site. The hang tag also listed an additional dealer
markup (ADM) of $1,760, bringing the total asking price to $12,650, exclusive of sales
tax and applicable DMV fees. The ADM included freight ($300) and preparation
($1,460) charges. The bottom of the hang tag stated the total price “includes but is not
limited to freight, assembly, service, dealer insurance, profit and overhead, flooring and
other costs where applicable.” The R6 had no accessories or optional equipment
installed, so there was no price quoted for those items.
Baker understood that the price listed on the R6 hang tag was negotiable.
Therefore, on June 29, 2012, he negotiated a total purchase price (before sales tax,
registration and certain fees) of $10,225.06 or $2,424.94 less than the hang tag price of
amount charged, if any, for the assembly, preparation, or both, of the motorcycle. [¶] (3) The amount charged, if any, for each dealer added accessory or item of optional equipment. [¶] (4) The total recommended retail price of the vehicle which shall be the aggregate value of paragraphs (1) and (2) of subdivision (a) and paragraphs (1), (2) and (3) of subdivision (b).”
4 See appendix A, post, Yamaha’s hang tag template.
5 See appendix B, post, TMI’s hang tag for the R6 purchased by Baker.
4 $12,650 ($12,650-$2,424.94=$10,225.06). The total amount due for the R6 was $11,200.
Baker’s deal was $664.94 less than the R6’s MSRP of $10,890 ($10,890-
$664.94=$10,225.06). He is not aware of any dealer who would have sold him the 2012
R6 for an overall price of $11,200 or less.
On December 31, 2015, Baker filed a putative class action against TMI, asserting
claims under California’s UCL and FAL, and alleging that TMI imposed undisclosed fees
on him and other customers.6 On January 27, 2016, he added Yamaha as a defendant in
his first amended complaint; however, his claims against Yamaha were for “injunctive
relief only” and “without seeking class certification.” Baker sought an injunction
requiring Yamaha to stop its misleading advertising. Yamaha demurred on the ground
Baker lacked standing. Subsequently, on February 2, 2018, Baker was granted leave to
file his third amended complaint, which focused on the allegation that the R6 he
purchased did not bear a hang tag furnished by Yamaha to TMI. Baker claims Yamaha
failed to comply with sections 24014 and 11712.5.
On July 18, 2018, Yamaha moved for summary judgment. The trial court granted
the motion on the ground Baker failed to establish the requisite harm to support his
claims against Yamaha for violations of the UCL and FAL and for common law aiding
and abetting. The court concluded the following: (1) “the only information that Yamaha
would have been required to state on the hang tags was the MSRP,” (2) Baker “read
[TMI’s] non-Yamaha hang tag and knew what the MSRP was,” and (3) Baker would
6 Baker settled his case against TMI, on a class basis, and TMI is not a party to this appeal.
5 have received “identical” information “[h]ad Yamaha provided hang tags” to TMI. The
court explained: “Given that the information provided would have been identical, the
undisputed evidence shows that plaintiff was not harmed by the absence of the Yamaha
hang tags.” Judgment was entered on November 29, 2018. Baker appeals.
II. DISCUSSION
A. Standard of Review.
A motion for summary judgment “shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment has the initial burden of showing either that
one or more elements of the cause of action cannot be established or that there is a
complete defense. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the initial burden is met, the burden
shifts to the plaintiff to show the existence of a triable issue of fact with respect to that
cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Saelzler, at p. 768.)
We review a summary judgment ruling de novo. (Saelzler, supra, 25 Cal.4th at
p. 768.) “We must view the evidence submitted in connection with a motion for summary
judgment in a light most favorable to the party opposing the motion and resolve ‘any
evidentiary doubts or ambiguities in plaintiff’s favor.’ [Citation.] We independently
determine whether the record supports the trial court’s conclusions that the asserted claims
fail as a matter of law, and we are not bound by the trial court’s stated reasoning or
rationales.” (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467.)
6 B. The Trial Court Properly Concluded Baker Lacked Standing.
Baker contends the trial court erroneously concluded that he lacked standing by
misinterpreting and narrowly applying the particularized interests protected by
sections 24014 and 11712.5. We disagree.
1. Applicable law.
“The UCL prohibits, and provides civil remedies for, unfair competition, which it
defines as ‘any unlawful, unfair or fraudulent business act or practice.’ ([Bus. & Prof.
Code,] § 17200.) Its purpose ‘is to protect both consumers and competitors by promoting
fair competition in commercial markets for goods and services.’ [Citations.] In service
of that purpose, the Legislature framed the UCL’s substantive provisions in ‘“broad,
sweeping language”’ [citations] and provided ‘courts with broad equitable powers to
remedy violations’ [citation]. The state’s false advertising law ([Bus. & Prof. Code,]
§ 17500 et seq.) is equally comprehensive within the narrower field of false and
misleading advertising.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320
(Kwikset).)
The substantive reach of these statutes is extensive; however, enforcement of their
provisions “‘is limited to any “person who has suffered injury in fact and has lost money
or property” as a result of unfair competition.’” (Kwikset, supra, 51 Cal.4th at pp. 320-
321; see Bus. & Prof. Code, §§ 17204, 17535.) Thus, the standing requirement for these
statutes is “substantially narrower than federal standing under article III, section 2 of the
United States Constitution, which may be predicated on a broader range of injuries.”
(Kwikset, at p. 324.) Consequently, to satisfy the injury requirement under the UCL and
7 FAL, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient
to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury
was the result of, i.e., caused by, the unfair business practice or false advertising that is
the gravamen of the claim.” (Kwikset, at p. 322.) While it is unnecessary for a plaintiff
to show the defendant’s conduct was the “sole or even the decisive cause of the injury-
producing conduct,” he or she must show “‘a causal connection or reliance on the alleged
misrepresentation.’” (Id. at pp. 326-327.) If he or she fails to allege or prove a “personal,
individualized loss of money or property in any nontrivial amount,” then “standing is
absent and the inquiry is complete.” (Id. at p. 325.)
2. Baker did not suffer an economic injury as a result of Yamaha’s failure
to provide a hang tag to TMI.
In 2012, when Baker decided to purchase a Yamaha R6, he researched and
compared prices on the Internet (on both Yamaha’s and TMI’s Web sites) and called Fun
Bike Center to obtain information in order to negotiate a discounted price for the
motorcycle. According to his research, he learned that freight and setup were not
included in the MSRP. Later, when Baker went to TMI, he saw the dealer’s hang tag on
the R6 “hanging from the mirror or the handlebars,” which included an MSRP of $10,890
and the ADM of $1,760. TMI’s tag also provided that the purchase price “includes but is
not limited to freight, assembly, service, dealer insurance, profit and overhead, flooring
and other costs where applicable.” Baker understood that the total price included the
MSRP and the ADM. He also knew the price did not include taxes or applicable DMV
8 fees. He negotiated a deal that was $664.94 less than the MSRP, he was happy with the
price he had negotiated, and he believed it was the best deal he could get from TMI.
Based on these undisputed facts, Baker suffered no economic injury from
Yamaha’s failure to provide TMI with a hang tag that listed Yamaha’s MSRP. Baker
disagrees and argues that the “trial court’s construction and interpretation of the
‘interest[s] legally protected’ by sections 24014 and 11712.5[7] . . . was far too narrow”
given their purpose of providing “‘“motorcycle buyers with information that is necessary
to make a wise purchase.”’” However, even if we broadly interpreted these statutes,
Baker is unable to show Yamaha’s failure to provide a hang tag caused him to suffer an
economic injury for purposes of standing. He obtained the MSRP from his Internet
research prior to purchasing the R6. TMI’s hang tag provided the same information
Yamaha’s hang tag would have provided. Baker successfully negotiated a price more
than $600 below the MSRP, and he believed he received the best deal he could get from
TMI. When a plaintiff gets the benefit of his bargain, he has no standing under the UCL
and FAL. (See, e.g., Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1555
[plaintiff had not alleged “that she could have obtained a bundled transaction for a new
cellular telephone—the telephone that she selected—at a lower price from another
source”]; Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 854-855 [plaintiff suffered no
injury, in fact, when he received and paid an invoice for a book before the expiration
7 Section 11712.5 provides in relevant part: “It is unlawful and a violation of this code for a dealer issued a license pursuant to this article to sell, offer for sale, or display any new vehicle, as follows: [¶] (a) A new motorcycle unless there is securely attached thereto a statement as required by Section 24014.”
9 period because he “did not allege he did not want the book, the book was unsatisfactory,
or the book was worth less than what he paid for it”]; Peterson v. Cellco Partnership
(2008) 164 Cal.App.4th 1583, 1588, 1591 [plaintiffs were not injured by
misrepresentations regarding licensure because they “received the benefit of their
bargain, having obtained the bargained for [cellular phone] insurance at the bargained for
price”].)
Because Baker failed to show that he suffered an economic loss due to Yamaha’s
failure to supply a hang tag with the R6’s MSRP, the trial court properly found that he
lacked standing to bring a claim against Yamaha under the UCL and FAL.
3. Yamaha’s statutory violation did not cause Baker’s alleged injury.
Baker asserts that he was harmed by Yamaha’s non-compliance with
Section 24014 and TMI’s collection of money, based on its sale to him, because “money
‘may have been acquired’ by Yamaha ‘by means of such unfair competition.’” More
specifically, he argues that if TMI had used Yamaha’s hang tag, which disclosed that
transportation/freight was included, he believes it would have impacted his negotiations
because he would never have agreed to pay a freight charge of $300. We are not
persuaded.
To begin, as Yamaha points out, TMI’s allegedly improper dealer-imposed fees
have nothing to do with Yamaha. The fees were imposed at TMI’s sole discretion and
were allowed by law. (§ 24014, subd. (b)(1), (b)(2).) Likewise, Baker’s reliance on
section 24014 to create standing for his claims against Yamaha is misplaced. Although
Baker argues section 24014 “imposes shared obligations on both manufacturers and
10 dealers of new, assembled motorcycles,” the language of the statute is directed at dealers,
i.e., “No dealer shall sell . . . any new, assembled motorcycle . . . unless there is securely
attached to its handlebar a label, approved by the [DMV], furnished by the
manufacturer . . . .” (§ 24014, subd. (a), italics added.) Thus, while hang tags should be
provided by the manufacturer, the statute’s mandatory provisions are aimed at dealers.
Since Yamaha is not in violation of section 24014, Baker may not state a cause of action
under the UCL’s unlawful prong. (Graham v. Bank of America, N.A. (2014) 226
Cal.App.4th 594, 610 [“A ‘violation of another law is a predicate for stating a cause of
action under the UCL’s unlawful prong.’”]
Next, we note that Baker does not dispute the fact that the dealer hang tag on his
R6 correctly listed Yamaha’s MSRP. It also listed the ADM cost and noted that the
dealer’s asking price “includes but is not limited to freight, assembly, service, dealer
insurance, profit and overhead, flooring and other costs where applicable.” Baker offers
no objection to the information contained on TMI’s hang tag. Rather, he focuses on the
fees (ADM) that TMI imposed on top of the MSRP, namely freight. But, according to
the language in section 24014, subdivision (b)(1) and (b)(2), TMI was required to
indicate the amount it was charging “over and above the suggested retail price” for
transportation and “preparation.” That is precisely what TMI did by listing the ADM in
the amount of $1,760.
Nonetheless, Baker references the language on a blank template of a Yamaha hang
tag that was created and used after he purchased his motorcycle in June 2012, and asserts
the MSRP of $10,800 for his R6 must have included freight, a fact of which he was not
11 aware. The blank template of Yamaha’s hang tag includes the following language: “The
Manufacturer’s Suggested Retail Price (MSRP) shown includes the manufacturer’s
transportation charges to the dealer but not tax or title. Dealer prices may vary.”
However, it also includes line items for “Charge by Dealer for Transportation to
Dealership” and “Dealer’s Assembly & Preparation Charges,” in addition to the line item
for the MSRP. It does not refer to any motorcycle model or contain any pricing
information. We reject Baker’s assertion that the MSRP for his R6 must have included
freight.8 We conclude the assertion is based on pure speculation that Yamaha’s post-June
2012 hang tags may be applied to his purchase. They may not. More importantly, the
law allows for dealers to impose fees for legitimate freight and preparation costs, over
and above the MSRP. (§ 24014, subd. (b)(1), (b)(2).)
In short, since TMI’s hang tag provided the information required by
section 24014, Baker cannot show he was harmed by Yamaha’s failure to provide a hang
tag with the same information.
C. Baker’s Attempt to Eliminate Standing Fails.
Unable to overcome the basic fact that he has not suffered any economic damages,
Baker raises several arguments to eliminate the standing requirement. Each fails.
8 Even if the MSRP of $10,890 included freight costs of $300, Baker negotiated a total price, including freight costs, of $10,225.06, an amount less than Yamaha’s MSRP. Thus, Baker did not pay any freight costs over and above the MSRP.
12 1. Proof of a violation of a predicate statute is not enough to support a
UCL violation under the unlawful prong.
Baker contends Yamaha’s violation of section 24014 proves a violation of the
UCL regardless of his knowledge of Yamaha’s MSRP. Not so. Courts have consistently
held that in addition to proving a violation of the predicate statute, a plaintiff must prove
an economic injury as a result of the defendant’s unlawful conduct.9 (Kwikset, supra, 51
Cal.4th at p. 322; Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 919 [A
consumer must show reliance in order to proceed with a claim under the UCL’s unlawful
prong.]; Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1143
[To support a private action under the UCL, a plaintiff needs to show standing by
establishing an economic injury that was caused by the “‘the unfair business practice or
false advertising that is the gravamen of the claim.’”]; Durell v. Sharp Healthcare (2010)
183 Cal.App.4th 1350, 1355 [To satisfy causation under the UCL’s unlawful prong, a
plaintiff must show actual reliance.].)
Baker’s reliance on Medrazo v. Honda of North Hollywood (2008)
166 Cal.App.4th 89 (Medrazo I) and Medrazo v. Honda of North Hollywood (2012)
9 Although Baker primarily focuses “on the UCL’s ‘unlawful’ prong,” he notes that the UCL “has four ‘prongs’ – ‘unlawful,’ ‘unfair,’ ‘fraudulent,’ and ‘violative of the FAL.’” However, he only makes a passing reference to the other three prongs without offering an analysis of how Yamaha violated them. Baker has therefore forfeited any claims on the other three prongs. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 [An appellant has the burden of overcoming the presumption that a judgment is correct by presenting “an analysis of the facts and legal authority on each point made,” and by supporting the “arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited.”)
13 205 Cal.App.4th 1 (Medrazo II), overruled in part in Veera v. Banana Republic, LLC,
supra, 6 Cal.App.5th at p. 919 [Medrazo II went too far in stating reliance was not
required in a UCL action premised on a fraud theory], is misplaced. First, the defendant
in both Medrazo I and Medrazo II was a dealer, not a manufacturer. (Medrazo I, at
pp. 92-93; Medrazo II, at pp. 4-5.) Second, Medrazo’s economic injury under the UCL
was based on her purchase of a motorcycle from a dealer who failed to supply any hang
tag. (Medrazo I, at p. 93; Medrazo II, at pp. 4-5.) Under Medrazo’s theory, the dealer
violated sections 24014 and 11712.5 by selling motorcycles without the proper hang tag
attached. (Medrazo I, at p. 93.) In Medrazo II, the court held that the plaintiff
sufficiently established that she “suffered a concrete, particularized, and actual invasion
of an interest legally protected by section 11712.5 and section 24014, i.e., the
disclosure—before a decision to purchase a specific motorcycle is made—of the MSRP
and any dealer-added charges for all new motorcycles offered for sale. . . . [¶] [And,
she] also presented evidence of an economic injury caused by the alleged unfair
competition. She testified that she made the first two months’ payments, and owes more
than $12,000 on a motorcycle that [the dealer] allegedly was not legally allowed to sell
(or at least was not allowed to sell at the price for which it was sold) because it failed to
disclose the dealer-added charges on a hanger tag attached to the motorcycle.”
(Medrazo II, at p. 13.)
Here, in contrast, Baker’s claims are against the manufacturer, not the dealer.
Baker was provided a hang tag, which provided the correct MSRP, identified the ADM,
and stated the total price “includes but is not limited to freight, assembly, service, dealer
14 insurance, profit and overhead, flooring and other costs where applicable.” Moreover,
Baker negotiated a price less than the dealer’s advertised price and Yamaha’s MSRP.
Baker therefore has no economic injury to claim. (Kwikset, supra, 51 Cal.4th at p. 322.)
2. Yamaha’s motion for summary judgment was properly granted on the
grounds Baker lacked standing.
According to Baker, since standing is merely a threshold issue, rather than an
element of his claims, Yamaha’s motion for summary judgment failed to shift the burden
to him, and the trial court should have denied Yamaha’s motion—without even
considering Baker’s evidence. We disagree.
The threshold issue of standing, i.e., the right to make a legal claim, is a question
of law, particularly where it depends on statutory provisions conferring standing.
(Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, 1143 [We review de novo
issues of standing, particularly those dependent upon a statutory authority to sue.];
see T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1433 [“The interpretation of statutory
provisions bearing on the standing issue is a question of law.”].) A defendant may defeat
an action on a motion for summary judgment without attacking each cause of action
separately by showing the action has no merit because the plaintiff lacks standing. (See,
e.g., Lickter v. Lickter (2010) 189 Cal.App.4th 712, 736 [A defendant may defeat an
action on a motion for summary judgment without attacking each cause of action
separately by showing the action has no merit because the plaintiff lacks standing.];
Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1510 [“Lack of standing is a fatal
jurisdictional defect that requires judgment against the plaintiff.”]; People v. $ 28,500
15 United States Currency (1996) 51 Cal.App.4th 447, 465-467 [summary judgment on
standing in civil forfeiture action].) Here, because Yamaha demonstrated Baker’s lack of
standing, it was not required to attack each cause of action separately.
3. The trial court did not conclude that TMI’s hang tag discharged
Yamaha’s duties under section 24014.
Baker contends the trial court effectively granted summary judgment to Yamaha
on a substantial compliance theory by concluding the dealer’s disclosures adequately
informed him about the motorcycle’s price, even though Yamaha as the manufacturer
had not made any statutory disclosures. This contention is a red herring. As Yamaha
notes, Baker never made such a claim to the trial court, and the court never considered it.
Rather, the court found that Baker was not harmed by the absence of the Yamaha hang
tag because he had the same information from Yamaha as he had from TMI. Because
Baker was not harmed, he lacked “standing to assert the UCL and FAL claims.” (See
Kwikset, supra, 51 Cal.4th at pp. 322-323.) Whether Yamaha did or did not substantially
comply with section 24014 is irrelevant.
4. The trial court correctly concluded Baker’s evidence was not material to
the disposition of the motion.
Baker faults the trial court for cherry-picking the undisputed material facts and
ignoring his evidence in support of its decision. He asserts the court had no discretion to
limit its analysis to certain undisputed facts identified by Yamaha, ignore his proffered
evidence (Insalaco v. Hope Lutheran Church of West Contra Costa County (2020)
16 49 Cal.App.5th 520-522) or refuse to rule on his objections to evidence the court deemed
irrelevant.10 We reject his assertion.
Code of Civil Procedure section 437c, subdivision (c), obliges trial courts to
consider “all . . . papers submitted” in ruling on the motion, and states: “In determining if
the papers show that there is no triable issue as to any material fact, the court shall
consider all of the evidence set forth in the papers, except that to which objections have
been made and sustained by the court . . . .” While the trial court must consider all the
evidence, it need not address every fact identified in the parties’ separate statement of
“material” facts. (Eddins v. Redstone (2005) 134 Cal.App.4th 290, 318 [The trial court
cannot be expected to address expressly every piece of evidence contained in a
voluminous record, much less address evidentiary items on which a party has not relied
to create a disputed issue of material fact.].)
Code of Civil Procedure section 437c, subdivision (q), provides that “[i]n
granting . . . a motion for summary judgment . . . , the court need rule only on those
objections to evidence that it deems material to its disposition of the motion. Objections
to evidence that are not ruled on for purposes of the motion shall be preserved for
appellate review.” (See Rodriguez v. Department of Transportation (2018)
21 Cal.App.5th 947, 953, 961 [“The trial court also declined to rule on [defendant’s]
objections because [plaintiff’s] evidence was not material to the trial court’s disposition
10 In its ruling, the trial court stated, “The Court does not rule on any of plaintiff’s evidentiary objections because none of the evidence to which they relate is relevant to the Court’s analysis.”
17 of the motion. . . .”].) “[I]f the trial court fails to rule expressly on specific evidentiary
objections, it is presumed that the objections have been overruled, the trial court
considered the evidence in ruling on the merits of the summary judgment motion, and the
objections are preserved on appeal.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)
Here, summary judgment was granted on the grounds Baker lacks standing
because the undisputed evidence11 shows he was not harmed by the absence of the
Yamaha hang tags. In reaching its decision, the trial court considered the evidence “it
deem[ed] material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).)
While Baker may disagree with the trial court’s resolution of his evidentiary claims, he
has not been prejudiced by any alleged procedural error.
5. The trial court properly granted summary judgment in favor of Yamaha
on Baker’s common law aiding and abetting claim.
Finally, Baker contends the trial court erred in adjudicating his common law
aiding and abetting claim in Yamaha’s favor because the common law claim does not
11 Citing Code of Civil Procedure section 2025.620, subdivision (b), Baker contends Yamaha’s motion “improperly relied on its own deposition testimony as its sole support for those facts, even though C.C.P. § 2025.620(b) only permits an adverse party to use its deposition in support of its motion.” Not so. Code of Civil Procedure section 437c, subdivision (b)(1), lists depositions among the documentation appropriate for use in support of a summary judgment motion. Also, “[a]ny party may use a deposition . . . for any other purpose permitted by the Evidence Code.” (Code Civ. Proc., § 2025.620, subd (a); see In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 143 [“[P]ursuant to section 2025.620 of the Code of Civil Procedure . . . ‘[a]t the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition . . . so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness . . . .’”].)
18 impose standing requirements imposed on the UCL/FAL aiding and abetting claim, and
there are triable issues of material fact as to whether Yamaha helped TMI commit a
prohibited act. As we explain, we disagree.
Aiding and abetting, though like conspiracy, involves distinct elements.
(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451,
1475.) “Liability may . . . be imposed on one who aids and abets the commission of an
intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the other to so act or (b) gives
substantial assistance to the other in accomplishing a tortious result and the person’s own
conduct, separately considered, constitutes a breach of duty to the third person.”
(Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846.) Technically, aiding and
abetting is not a distinct cause of action. Rather, it is a theory of joint liability for a tort.
(Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 762.) “‘A plaintiff’s
object in asserting such a theory is to hold those who aid and abet in the wrongful act
responsible as joint tortfeasors for all damages ensuing from the wrong.’” (Berg & Berg
Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10.)
To begin, Baker’s common law aiding and abetting claim fails because Baker is
unable to demonstrate an economic injury caused by Yamaha. (American Master Lease
LLC v. Idanta Partners, Ltd., supra, 225 Cal.App.4th at p. 1476 [“‘[C]ausation is an
essential element of an aiding and abetting claim, i.e., plaintiff must show that the aider
and abettor provided assistance that was a substantial factor in causing the harm
suffered.’”].) As previously stated, Baker has not shown that he suffered any harm
19 caused by Yamaha’s failure to provide a hang tag with his R6’s MSRP: Baker paid more
than $600 less than Yamaha’s MSRP, and thousands of dollars less than TMI’s asking
price. Moreover, Baker is unable to show that Yamaha had knowledge of TMI’s alleged
wrongful conduct and provided substantial assistance in accomplishing a tortious result.
(Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., supra, 131 Cal.App.4th at
p. 823, fn. 10 [Aiding and abetting “‘necessarily requires a defendant to reach a
conscious decision to participate in tortious activity for the purpose of assisting another in
performing a wrongful act.’”].)
According to the evidence, Yamaha is a wholesale distributor that has no
knowledge about, or control over, the prices its dealers charge in their retail transactions,
including charges for freight and preparation. Yamaha also has no control over its
dealers’ use of Yamaha provided hang tags. The amount dealers charge for Yamaha
products has no effect on the amount Yamaha receives because dealers are invoiced a
specific amount for products ordered prior to their sale, and the pricing that Yamaha sets
for its products is uniform across the entire country regardless of dealers’ retail prices.
Nonetheless, according to its dealer agreements, dealers, including TMI, are required to
“‘conduct and maintain at all times its sales and service operations in strict compliance
with all applicable federal and state laws and regulations, county and city ordinances and
regulations and any other applicable law, regulation or ordinance.’” From the evidence
before the trial court, one cannot infer Yamaha had knowledge of TMI’s conduct
surrounding the sale of its R6 to Baker. Absent some indication of participation or
support of wrongful conduct, there is no connection between Yamaha and TMI’s alleged
20 wrongdoing. The only business practice Yamaha has engaged in is distributing its
products in a lawful manner to licensed dealers. (See In re Firearm Cases (2005) 126
Cal.App.4th 959, 982, 985 [“[E]vidence presented did not show that any defendant had
actual knowledge that specific retailers were illegally supplying guns to the crime gun
market or took any action to aid or encourage such activity.”].)
Having reviewed the record de novo, we conclude Baker did not offer evidence
that would show the existence of a triable issue of material fact as to Yamaha’s
knowledge and intent to support a claim for aiding and abetting. The trial court therefore
did not err in granting summary judgment on this cause of action.
D. Baker’s Request for Leave to Locate a “Harmed” Class Member and File an
Amended Complaint.
In his reply brief, Baker requests leave to amend so that a substitute harmed
plaintiff can replace him. He cites Branick v. Downey Savings & Loan Assn. (2006) 39
Cal.4th 235, 243 (Branick), and Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th
1305, 1352, without any analysis of their legal authority. We note that in Branick, the
case was on appeal when Proposition 64 was adopted (Gen. Elec. (Nov. 2, 2004)). Thus,
the Court of Appeal allowed the matter to be remanded to determine whether the
circumstances warranted granting leave to amend. (Branick, supra, 39 Cal.4th at
pp. 242-244.) Unlike Branick, this case was filed several years after Proposition 64 was
adopted. Moreover, Baker makes no representation that other harmed plaintiffs exist.
(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 273-274 [no abuse of
discretion to deny leave to amend where there is no reasonable possibility that plaintiff
21 can cure the defect], overruled in part on other grounds by Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 939.) Accordingly, we deny the request.
III. DISPOSITION
The judgment is affirmed. Yamaha to recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
SLOUGH J.
FIELDS J.
22 APPENDIX A
23 APPENDIX B