Gutierrez v. Carmax Auto Superstores Cal.
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Opinion
FRANSON, J.
*1238Plaintiff Tammy Gutierrez sued defendant CarMax Auto Superstores California, LLC (CarMax) alleging breaches of express and implied warranties, intentional and negligent misrepresentation, breach of contract, unfair competition under Business and Professions Code section 17200 (UCL), and a violation of the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq. ). CarMax demurred to Gutierrez's third amended complaint and the trial court sustained the demurrer without leave to amend. Gutierrez appealed, contending her allegations about an undisclosed safety recall adequately stated causes of action for breach of an implied warranty of merchantability and violations of the UCL and CLRA.
As to the alleged breach of the implied warranty of merchantability, we conclude Gutierrez failed to adequately allege facts showing the existence of the safety recall relating to the vehicle's stop lamp switch rendered the vehicle unfit for ordinary purposes. Gutierrez did not allege the switch in her vehicle was actually defective and did not allege her use of the vehicle was restricted or impaired due to the recall.
In contrast, Gutierrez has alleged sufficient facts to establish CarMax engaged in unfair or deceptive practices in violation of the CLRA. Gutierrez alleged CarMax engaged in deceptive practices by (1) representing the vehicle passed a 125-point quality inspection and (2) failing to disclose the safety recall for the vehicle's stop lamp switch. She alleged the switch was a critical safety-related component of the vehicle's braking system and CarMax did not disclose the recall because it deemed making money more important than protecting its customers from dangers relating to serious safety recalls. As to the elements of reliance and the causation of harm, Gutierrez alleged she would not have purchased the vehicle if she had known its true condition, *1239including recall history. Case law establishes this allegation adequately states Gutierrez suffered "any damage" as that term is used in the CLRA and, therefore, might be entitled to restitution under the statute. Also, the contractual limitations on remedies for a breach of warranty do not control or restrict the availability of restitution or other relief specified in the CLRA.
On the question whether Gutierrez pleaded sufficient facts to establish CarMax had a duty to disclose the safety recall, we conclude her allegations are sufficient. Gutierrez contends the duty to disclose existed because CarMax (1) had actual knowledge of the recall before the *705sale of the vehicle and (2) made partial representations about the vehicle that were misleading because the existence of the recall, a material fact, had not been disclosed. We conclude her allegations are sufficient to establish for pleading purposes the existence of the safety recall was a material fact and, by reasonable inference, the existence of CarMax's knowledge of the recall before the sale. As the stop lamp switch is related to the vehicle's braking and lighting systems, Gutierrez's allegations about the rigorous inspection of the vehicle's braking and lighting systems, and its misleading character in the absence of a disclosure about the safety recall, are sufficient to plead the remaining factual element of a duty to disclose. Therefore, we conclude she has alleged sufficient facts to state a claim for a deceptive practice actionable under the CLRA.
Gutierrez also has stated a cause of action under the UCL. We conclude the violation of the CLRA serves as the predicate violation of law necessary to establish the unlawful practice variety of unfair competition that is actionable under the UCL.
We therefore reverse the judgment of dismissal.
FACTS
On May 6, 2013, Gutierrez purchased a 2008 Hyundai Elantra from defendant CarMax at its dealership in Bakersfield. The vehicle came with a 30-day limited warranty. The vehicle's purchase agreement stated:
"The CarMax Warranty Brochure contains the details of the Limited Warranty.
"LIMITATION OF WARRANTIES: CARMAX MAKES NO EXPRESS WARRANTIES UNLESS SEPARATELY SET FORTH IN WRITING. ANY AND ALL IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS SOLD HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, *1240ARE LIMITED TO THE DURATION OF THE WRITTEN LIMITED WARRANTY GIVEN BY CARMAX, IF ANY."
The document containing the limited warranty stated the duration of the warranty was 30 days and listed the systems covered. The document also stated: "The dealer will pay 100% of the labor and 100% of the parts for the covered systems that fail during the warranty period."
Before Gutierrez purchased the vehicle, she was advised by CarMax sales staff that the Hyundai was in excellent condition because it had passed a rigorous 125-point quality inspection. Gutierrez also received a document with the heading "CQI CarMax"1 that stated: "This vehicle has passed the rigorous CarMax 125-Point Quality Inspection" and listed the 125 points. The following sentence appeared at the top of the document: "Your signed CQI certificate can be found in your vehicle's glove compartment."
At the time of the sale, the Hyundai was subject to a national recall relating to the stop lamp switch, which Gutierrez alleges was a critical safety-related component of the vehicle's braking system that materially affects a person's ability to operate the vehicle safely. She further alleges it is unsafe to operate a vehicle with a defective stop lamp switch, but has not alleged the switch on her vehicle malfunctioned or was actually defective.
CarMax did not disclose to Gutierrez that there was an outstanding safety recall relating to the stop lamp switch. The operative complaint does not explicitly address *706what CarMax knew about the recall at the time of sale. However, the complaint alleges CarMax "should have either disclosed to Gutierrez that the Hyundai was the subject of the recall, or had the safety recall work performed" and the only reason CarMax did not disclose the recall because it placed more importance on money than protecting its customers.2 We conclude these allegations can be reasonably interpreted as implying CarMax actually knew the recall had been issued when it sold the Hyundai to Gutierrez. (See Code Civ. Proc., § 452 [construction of pleadings]; Mendoza v. Continental Sales Co. (2006)
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FRANSON, J.
*1238Plaintiff Tammy Gutierrez sued defendant CarMax Auto Superstores California, LLC (CarMax) alleging breaches of express and implied warranties, intentional and negligent misrepresentation, breach of contract, unfair competition under Business and Professions Code section 17200 (UCL), and a violation of the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq. ). CarMax demurred to Gutierrez's third amended complaint and the trial court sustained the demurrer without leave to amend. Gutierrez appealed, contending her allegations about an undisclosed safety recall adequately stated causes of action for breach of an implied warranty of merchantability and violations of the UCL and CLRA.
As to the alleged breach of the implied warranty of merchantability, we conclude Gutierrez failed to adequately allege facts showing the existence of the safety recall relating to the vehicle's stop lamp switch rendered the vehicle unfit for ordinary purposes. Gutierrez did not allege the switch in her vehicle was actually defective and did not allege her use of the vehicle was restricted or impaired due to the recall.
In contrast, Gutierrez has alleged sufficient facts to establish CarMax engaged in unfair or deceptive practices in violation of the CLRA. Gutierrez alleged CarMax engaged in deceptive practices by (1) representing the vehicle passed a 125-point quality inspection and (2) failing to disclose the safety recall for the vehicle's stop lamp switch. She alleged the switch was a critical safety-related component of the vehicle's braking system and CarMax did not disclose the recall because it deemed making money more important than protecting its customers from dangers relating to serious safety recalls. As to the elements of reliance and the causation of harm, Gutierrez alleged she would not have purchased the vehicle if she had known its true condition, *1239including recall history. Case law establishes this allegation adequately states Gutierrez suffered "any damage" as that term is used in the CLRA and, therefore, might be entitled to restitution under the statute. Also, the contractual limitations on remedies for a breach of warranty do not control or restrict the availability of restitution or other relief specified in the CLRA.
On the question whether Gutierrez pleaded sufficient facts to establish CarMax had a duty to disclose the safety recall, we conclude her allegations are sufficient. Gutierrez contends the duty to disclose existed because CarMax (1) had actual knowledge of the recall before the *705sale of the vehicle and (2) made partial representations about the vehicle that were misleading because the existence of the recall, a material fact, had not been disclosed. We conclude her allegations are sufficient to establish for pleading purposes the existence of the safety recall was a material fact and, by reasonable inference, the existence of CarMax's knowledge of the recall before the sale. As the stop lamp switch is related to the vehicle's braking and lighting systems, Gutierrez's allegations about the rigorous inspection of the vehicle's braking and lighting systems, and its misleading character in the absence of a disclosure about the safety recall, are sufficient to plead the remaining factual element of a duty to disclose. Therefore, we conclude she has alleged sufficient facts to state a claim for a deceptive practice actionable under the CLRA.
Gutierrez also has stated a cause of action under the UCL. We conclude the violation of the CLRA serves as the predicate violation of law necessary to establish the unlawful practice variety of unfair competition that is actionable under the UCL.
We therefore reverse the judgment of dismissal.
FACTS
On May 6, 2013, Gutierrez purchased a 2008 Hyundai Elantra from defendant CarMax at its dealership in Bakersfield. The vehicle came with a 30-day limited warranty. The vehicle's purchase agreement stated:
"The CarMax Warranty Brochure contains the details of the Limited Warranty.
"LIMITATION OF WARRANTIES: CARMAX MAKES NO EXPRESS WARRANTIES UNLESS SEPARATELY SET FORTH IN WRITING. ANY AND ALL IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS SOLD HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, *1240ARE LIMITED TO THE DURATION OF THE WRITTEN LIMITED WARRANTY GIVEN BY CARMAX, IF ANY."
The document containing the limited warranty stated the duration of the warranty was 30 days and listed the systems covered. The document also stated: "The dealer will pay 100% of the labor and 100% of the parts for the covered systems that fail during the warranty period."
Before Gutierrez purchased the vehicle, she was advised by CarMax sales staff that the Hyundai was in excellent condition because it had passed a rigorous 125-point quality inspection. Gutierrez also received a document with the heading "CQI CarMax"1 that stated: "This vehicle has passed the rigorous CarMax 125-Point Quality Inspection" and listed the 125 points. The following sentence appeared at the top of the document: "Your signed CQI certificate can be found in your vehicle's glove compartment."
At the time of the sale, the Hyundai was subject to a national recall relating to the stop lamp switch, which Gutierrez alleges was a critical safety-related component of the vehicle's braking system that materially affects a person's ability to operate the vehicle safely. She further alleges it is unsafe to operate a vehicle with a defective stop lamp switch, but has not alleged the switch on her vehicle malfunctioned or was actually defective.
CarMax did not disclose to Gutierrez that there was an outstanding safety recall relating to the stop lamp switch. The operative complaint does not explicitly address *706what CarMax knew about the recall at the time of sale. However, the complaint alleges CarMax "should have either disclosed to Gutierrez that the Hyundai was the subject of the recall, or had the safety recall work performed" and the only reason CarMax did not disclose the recall because it placed more importance on money than protecting its customers.2 We conclude these allegations can be reasonably interpreted as implying CarMax actually knew the recall had been issued when it sold the Hyundai to Gutierrez. (See Code Civ. Proc., § 452 [construction of pleadings]; Mendoza v. Continental Sales Co. (2006)
PROCEEDINGS
In November 2014, Gutierrez prepared and filed a complaint against CarMax using a form complaint approved by the Judicial Council of California. Demurrers to her first and second amended complaints were filed and sustained with leave to amend.
In October 2015, Gutierrez's attorney prepared and filed the third amended complaint (complaint), which is the operative pleading in this appeal. In November 2015, CarMax filed another demurrer.
At a January 14, 2016, hearing, the trial court sustained the demurrer without leave to amend and directed CarMax to give notice of the order. The order stated the complaint failed to allege sufficient facts to constitute (1) a breach of warranty, (2) a misrepresentation that was not remedied or limited by the terms of the express warranty, or (3) a breach of contract. The order explained these conclusions by stating:
"The warranty was expressly limited to 30 days, and all the alleged misrepresentations [Gutierrez] complains of, were disclaimed by the warranty, or could not be reasonably relied upon due to the time limitations of the warranty. Since [Gutierrez] failed to present the subject vehicle for repair until after the warranty expired, no breach of a duty *707or contractual obligation, and no misrepresentation or reliance has yet to be sufficiently pleaded, and likely cannot be pleaded from the facts as alleged in the four attempts in this case."
The order also stated Gutierrez had not presented any facts or allegations that would cure the defects apparent on the face of the pleadings and, consequently, leave to amend was denied. In February 2016, Gutierrez filed a notice of appeal.
*1242DISCUSSION
I. STANDARD OF REVIEW FOR DEMURRERS
When a demurrer is sustained, appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any possible legal theory. ( City of Dinuba v. County of Tulare (2007)
Legal questions include the interpretation of a statute and the application of a statutory provision to facts assumed to be true for purposes of the demurrer. ( Villery , supra , 246 Cal.App.4th at p. 413,
II. BREACH OF IMPLIED WARRANTY
A. Contentions of the Parties
1. Gutierrez's Legal Theory
Gutierrez contends the breach of implied warranty cause of action is based on the warranty of merchantability that is implied in every contract for the sale of consumer goods by Civil Code section 1792.4 Gutierrez contends goods are "merchantable" if they are fit for the ordinary purposes for which such goods are used. Gutierrez further contends the ordinary purpose of a vehicle is safe driving and, therefore, a vehicle is not merchantable when it is not fit for safe driving.5
Applying this legal theory to her vehicle, Gutierrez argues the Hyundai was not merchantable when sold to her because "it had the unresolved and *1243undisclosed stop lamp switch issue" identified in the safety recall. In Gutierrez's view, this breach of the implied warranty of merchantability occurred at the time of sale and, as a result, the cause of action does not depend on the timing of her discovery of (1) the safety recall or (2) CarMax's failure to fix the vehicle as specified in the recall.
2. CarMax's Contentions
CarMax challenges Gutierrez's cause of action for breach of an implied warranty on multiple grounds. First, CarMax contends the theory that the vehicle was not *708merchantable because of the unresolved and undisclosed stop lamp switch issue is a new theory of liability set forth for the first time on appeal. Thus, CarMax argues Gutierrez has waived her "claim that the recall rendered the vehicle unmerchantable."
Second, CarMax contends Gutierrez "wholly fails to cite to the record and presents no cognizable legal argument to show that the recall was a violation of the implied warranty under any theory." CarMax argues this failure to present specific argument on the issue also operates as a waiver.
Third, CarMax contends the breach of implied warranty claim is deficient because there is no allegation that the recall affected the vehicle's usability. CarMax notes Gutierrez did not allege the stop lamp switch on her vehicle was actually defective or did not function properly, but only alleged there was an outstanding recall. CarMax contends, "An outstanding recall, by itself, does not render a product unfit for use." Thus, in CarMax's view, the cause of action must include allegations showing there were problems with the specific vehicle that rendered it unfit for ordinary purposes, rather than showing a precautionary replacement of a properly functioning part. In addition, CarMax contends the stop lamp switch was replaced at no cost to plaintiff in accordance with the limitations on remedies for breach of warranties specified in the contract.
B. Demurrers and New Legal Theories on Appeal
1. General Rule
CarMax relies on the general rule " 'that issues not raised in the trial court cannot be raised for the first time on appeal.' " ( *1244Johnson v. Greenelsh (2009)
2. Rule Applicable to Demurrers
CarMax's reliance on the general rule is contrary to the precedent established by the California Supreme Court, which is binding on this court and all state trial courts. The Supreme Court has repeatedly stated that appellate courts reviewing a general demurrer make a de novo determination of whether the complaint alleges "facts sufficient to state a cause of action under any possible legal theory ." ( Dinuba , supra , 41 Cal.4th at p. 870,
Accordingly, the "any possible legal theory" standard encompasses a legal theory presented for the first time in an opening appellant's brief. The *1245standard also includes legal theories first raised by the reviewing court. (E.g., Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003)
Consequently, we conclude Gutierrez did not waive, forfeit or abandon the legal theory that the existence of an undisclosed and unresolved safety recall constitutes a breach of the implied warranty of merchantability.
C. Alleged Deficiencies in Gutierrez's Brief
1. Insufficient Argument and Legal Authority
CarMax argues that consideration of Gutierrez's legal theory is barred because her "brief also violates subsection (a)(1)(A) of [California Rules of Court] rule 8.883 by failing to provide substantive legal argument on the issues pertinent to this appeal supported by citation to relevant legal authority." We reject this argument.
First, the cited rule applies to the appellate division of the superior court, not to the Court of Appeal. (See Cal. Rules of Court, rule 8.800(a).) Second, Gutierrez has provided substantive legal argument regarding the legal theory that the existence of the undisclosed and unresolved safety recall constituted a breach of the implied warranty of merchantability. She has cited the statutory provision that imposes the implied warranty, referred to the standard that the goods sold must be fit for ordinary purposes, and argued that a vehicle subject to a safety recall is not fit for the ordinary purpose of safe driving. Third, the lack of a citation to legal authority supporting her specific argument for when a vehicle is not fit for ordinary purposes does not violate the rules governing appellate briefs. Such a citation to authority is required "if possible." ( Cal. Rules of Court, rule 8.204(a)(1)(B).) This rule does not bar appellants from presenting (or this court from considering) novel legal theories not explicitly considered or adopted in a published opinion.
*7102. Citations to the Record
CarMax also argues Gutierrez's opening brief wholly fails to cite to the record in the argument section and, as a result, this court should deem her to *1246have waived those arguments. This court has recognized that California Rules of Court, rule 8.204(a)(1)(C) requires any reference to a matter in the record be supported by a citation to the volume and page number of the record where the matters appears. ( Sky River LLC v. Kern County (2013)
In this case, however, we will not treat Gutierrez's failure to include citations to her complaint and its exhibits as constituting a waiver or forfeiture. The court became familiar with the complaint and its exhibits in the course of its review and, as this appeal is narrowly focused on whether the operative pleading stated a cause of action, we experienced no inefficiencies due to the lack of repeated citations to the complaint. Consequently, we will exercise our discretionary authority such that the omissions of citations to the record are not deemed a waiver or forfeiture of the related arguments.
D. Implied Warranty Cause of Action
1. Elements of a Claim
In generic terms, the elements of any cause of action are wrongdoing, causation and harm. ( Fox v. Ethicon Endo-Surgery, Inc. (2005)
Stating a complete cause of action for a breach of the Song-Beverly Consumer Warranty Act's implied warranty of merchantability also requires the plaintiff to allege facts establishing the generic elements of causation and *1247harm. These elements are addressed by the statutory provisions that define the relief available for a breach of the implied warranty. For instance, Civil Code section 1791.1, subdivision (d) states: "Any buyer of consumer goods injured by a breach of the implied warranty of merchantability … has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701 ) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply."
Similarly, Civil Code section 1794, subdivision (a) states that "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation … under an *711implied … warranty … may bring an action for the recovery of damages or other legal and equitable relief." In accordance with these provisions, the buyer of consumer goods must plead he or she was injured or damaged by the alleged breach of the implied warranty of merchantability.
In this appeal, the disputed elements of the cause action for a breach of the Song-Beverly Consumer Warranty Act's implied warranty of merchantability are whether Gutierrez has alleged sufficient facts to show (1) the Hyundai was not fit for ordinary purposes, (2) Gutierrez was injured, and (3) the injury was proximately caused by the alleged breach of the implied warranty.
2. Alleging a Vehicle is Unfit for Ordinary Purposes
Whether an automobile is fit for the ordinary purpose for which vehicles are used has been addressed in a number of decisions. For example, a vehicle that is inoperable is unfit for transportation, which is an ordinary purpose for which a vehicle is used. ( Jones v. Credit Auto Center, Inc. (2015)
3. Unfitness Due to the Safety Recall
First, we conclude the general assertions in the complaint that the Hyundai "was not fit for its intended use" and "was virtually useless due to safety defects" are not allegations of fact sufficient to state a breach of the implied warranty of merchantability. Gutierrez does not argue these general assertions are sufficient. Second, we conclude the allegation of the existence of a safety recall relating to a stop lamp switch, by itself, is insufficient to state facts showing that the vehicle was unfit for ordinary purposes. ( Civ. Code, § 1791.1, subd. (a)(2) ; see generally, Blanco v. Baxter Healthcare Corp. (2008)
The complaint's allegation that CarMax breached the implied warranty because the Hyundai was "was not fit for its intended use" was followed by the clause "as described above." The previous paragraphs in the complaint described mechanical *712problems and vehicle unreliability involving failures to accelerate, stalling, and inoperable steering. However, there were no allegations connecting these problems with the existence of the safety recall for the stop lamp switch. As noted by CarMax, there is no allegation that the switch was actually defective or failed to function before it was replaced. Furthermore, we located no allegation explaining how Gutierrez's use of the vehicle was restricted or otherwise affected by the existence of the safety recall. For example, Gutierrez did not allege she became aware of the safety recall on a particular date and thereafter was reluctant to drive the Hyundai due to safety concerns related to the stop lamp switch. Therefore, we conclude Gutierrez has failed to allege facts sufficient to show the Hyundai was unfit for ordinary purposes due to the safety recall.9
Gutierrez's petition for rehearing assumed she adequately alleged the Hyundai was unfit for ordinary purposes and addressed whether she is entitled to relief. Her arguments raise questions about the elements of injury and causation that we need not decide.
*1249III. CONSUMER LEGAL REMEDIES ACT
A. Unfair and Deceptive Acts and Practices
1. Statutory Text
The CLRA prohibits "unfair methods of competition and unfair or deceptive acts or practices" in transactions involving the sale of goods or services to any consumer. ( Civ. Code, § 1770.) Gutierrez relies on paragraphs (5), (7) and (9) of subdivision (a) of Civil Code section 1770, which prohibit "[r]epresenting that goods ... have ... characteristics [or] benefits ... that they do not have"; "[r]epresenting that goods ... are of a particular standard, quality, or grade ... if they are of another"; and "[a]dvertising goods ... with intent not to sell them as advertised." A question of statutory construction presented by this text is whether concealment, omissions or failures to disclose are prohibited.
2. Statutory Construction-Ambiguous or Plain Meaning
California's rules of statutory interpretation are well established. (See Merced Irrigation Dist. v. Superior Court (2017)
One view is that "representing" has a plain meaning, which includes making oral and written statements and excludes omitting or failing to disclose information. A different view is that "representing" is ambiguous because, in certain contexts, representations can be expressed in words (i.e., oral or written) and also can be implied.10
*713Dictionaries are one place to look for a word's usual, ordinary meaning. ( Wasatch Property Management v. Degrate (2005)
We conclude the statutory term "representing" is ambiguous and does not have single plain meaning. It is possible to interpret "representing" narrowly to mean presenting written or oral statements of fact to another, which interpretation excludes omissions of fact or nondisclosures. For example, the tort of negligent misrepresentation usually "exclude[es] liability for mere nondisclosure or other failure to act." ( Randi W. v. Muroc Joint Unified School Dist. (1997)
When statutory language is ambiguous, the court must adopt the interpretation that best effectuates the legislative intent or purpose. ( Beal Bank, SSB v. Arter & Hadden, LLP (2007)
3. Other Statutory Provisions
Ambiguous statutory language is construed in context-that is, it must be read in conjunction with the other words of the section and in light of the statutory scheme as a whole. ( Merced Irrigation Dist. v. Superior Court , supra , 7 Cal.App.5th at p. 925,
*1251Civil Code section 1770 expressly prohibits the failure to provide particular types of information. The advertising of *714furniture "without clearly indicating" it is unassembled or the assembled price (if available assembled) is prohibited. ( Civ. Code, § 1770, subd. (a)(11), (12).) "Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity" is prohibited, which is only place the word "disclose" or its variants is used in Civil Code section 1770. (Id ., subd. (a)(10), italics added.) Other provisions prohibit (1) advertising a specific price plus percentage markup unless other pricing information is included and (2) disseminating unsolicited prerecorded telephone messages that do not first provide information specified in the statute. (Id ., subd. (a)(20), (22).)12
Other statutory text relevant to our construction of the provisions Gutierrez has alleged were violated is the Legislature's express statement of the CLRA's purposes:
"This title shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection." ( Civ. Code, § 1760, italics added.)
The reference to "efficient and economical procedures" is somewhat ambiguous in scope. It could be intended to refer to procedures that are efficient and economical to the consumer seeking the CLRA's protection. Alternatively, the CLRA could be concerned with efficiency and economy on a broader, societal scale-that is, for all persons and entities involved in consumer transactions. Under this broader perspective, courts would weigh any inefficiencies a particular statutory construction might create for scrupulous businesses and balance those inefficiencies (i.e., burdens) against the protection (i.e., benefits) provided to consumers. Therefore, the Legislature's expression of the CLRA's purposes is ambiguous, which creates uncertainty in how to interpret the statute. (See Apple Inc. v. Superior Court (2013)
4. Legislative History
The ambiguity about efficient and economical procedures is not addressed in the Legislative Counsel's Digest for the bill enacting the CLRA, which states in full: "Enacts [CLRA] which provides specific legal remedies for consumers who suffer damage as a result of method, act, or practice declared to be unlawful by the act." (Legis. Counsel's Dig., Assem. Bill No. 292, 2 *1252Stats. 1970 (Reg. Sess.) Summary Dig., p. 223; see Broughton v. Cigna Healthplans (1999)
Other materials in the legislative history from the year of the CLRA's enactment, provide a stronger foundation for drawing inferences about the legislative purpose. One report states the act was designed " 'to provide affirmative remedies for consumers which will protect them from unscrupulous business practices while insulating responsible businessmen from spurious or vexatious lawsuits.' (Assem. Com. on Judiciary, Rep. on Assem.
*715Bill No. 292 (1970 Reg. Sess.) Sept. 23, 1970.)" ( Benson v. Southern California Auto Sales, Inc. (2015)
Next, we consider whether the CLRA's legislative history is useful in determining whether the provisions invoked by Gutierrez should be construed to prohibit omissions or nondisclosures of fact. The materials we have reviewed are not definitive and can be used to support conflicting inferences on the nondisclosure question. One report gave an example of how each of the 16 subdivisions of Civil Code section 1770 enacted in 1970 could be violated. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 292 (1970 Reg. Sess.) Sept. 23, 1970.)13 The example for the provision that is now subdivision (a)(6) of Civil Code section 177014 is the only example that refers to the failure to disclose information, and it states: "It would be a deceptive practice for a salesman to fail to disclose that products are reprocessed even though the reprocessed products are as good as new. FTC v. Colgate-Palmolive,
5. Statutes and Case Law Existing in 1970
A principle of statutory construction states the Legislature is deemed to be *716aware of existing statutes and judicial decisions when it adopts a statute. ( People v. Harrison (1989)
The existing statutes included the Civil Code provisions adopted in 1872 to define fraud and deceit. ( Civ. Code, § 1572 [fraud], 1710 [deceit].) Both these definitions encompass omissions and nondisclosures. Deceit includes the "suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact." ( Civ. Code, § 1710, subd. 3.) Fraud includes "suppression of that which is true, by one having knowledge or belief of the fact." ( Civ. Code, § 1572, subd. 3.)
Existing judicial decisions included General Acc. etc. Corp. v. Indus. Acc. Com. (1925)
6. Subsequent Judicial Decisions and Amendments of the CLRA
Another principle of statutory construction provides that courts generally presume "the Legislature is aware of court opinions existing at the time it amends legislation." ( Estate of Burden (2007)
*717The first published case to discuss whether the suppression or omission of facts was actionable under the CLRA was the Third District's 1975 decision in OutboardMarine Corp. v. Superior Court (1975)
*1255In Bardin v. Daimlerchrysler Corp. (2006)
Later in 2006, the Second District filed Daugherty v. American Honda Motor Co., Inc. (2006)
In McAdams v. Monier, Inc. (2010)
In Klein v. Chevron U.S.A., Inc. (2012)
"Plaintiffs' allegations are sufficient to state a CLRA claim predicated on a material omission, which ' "consist[s] of the suppression of a fact by one who ... gives information of other facts which are likely to mislead for want of communication of that fact." ' ( McAdams , supra , 182 Cal.App.4th at p. 185 [105 Cal.Rptr.3d 704 ], italics omitted.)" ( Klein , supra , at p. 1383,137 Cal.Rptr.3d 293 .)
We interpret Klein 's statements about omissions of material fact to be necessary to the outcome of reversing the judgment on the pleadings.19 (Cf.
*719Rubenstein v. The Gap, Inc. (2017)
The line of cases beginning with Outboard Marine , including McAdams , and ending with Klein is relevant to our interpretation of the CLRA provisions because the Legislature amended Civil Code section 1770 many times after Outboard Marine and before McAdams and did not address the interpretation of that section to reach omissions or nondisclosures of material facts. (See 2 Stats. 1979, ch. 819, § 4, pp. 2827-2828; 2 Stats. 1984, ch. 1171, § 1, pp. 4013-4014; 3 *1257Stats. 1986, ch. 1497, § 1, pp. 5368-5369; 5 Stats. 1990, ch. 1641, § 1, pp. 7852-7853; 1 Stats. 1995, ch. 255, § 2, pp. 878-879; 3 Stats. 1996, ch. 684, § 1, pp. 3777-3780.) Similarly, since McAdams was decided, there have been many amendments to Civil Code section 1770 without the Legislature expressing its disapproval of the interpretation extending its provisions to omissions or nondisclosures. (See Stats. 2008, ch. 479, § 1; Stats. 2009, ch. 140, § 26; Stats. 2011, ch. 79, § 1; Stats. 2012, ch. 653, § 1; Stats. 2013, ch. 541, § 1; Stats. 2015, ch. 246, § 1; Stats. 2016, ch. 86, § 19.)
7. National Consumer Act
Another type of analysis used when interpreting the CLRA is comparing the provisions adopted by the Legislature to the model legislation upon which the CLRA was based-namely, "the National Consumer Act proposed by the National Consumer Law Center at Boston College. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 292 (1970 Reg. Sess.) Apr. 20, 1970, p. 1; see Reed, Legislating for the Consumer: An Insider's Analysis of the Consumers Legal Remedies Act (1971) 2 Pacific L.J. 1, 11.)" ( Fairbanks v. Superior Court (2009)
Here, a comparison of the model act to the CLRA shows that paragraphs (5), (7) and (9) of subdivision (a) of Civil Code section 1770 track verbatim the paragraphs (e), (g) & (i) of Section 3.201(1) of the National Consumer Act, first final draft (Jan. 1970). However, the 16 types of unfair or deceptive acts or practices made unlawful by Civil Code section 1770, did not include the last two listed in the model act, which stated: "(q) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding; or [¶] (r) Engaging in any act or practice which is unfair or deceptive to the consumer." These provisions were general in scope and could have been interpreted as encompassing omissions of material facts not covered by the provisions referring to "representing" and "advertising."
A number of other aspects of the National Consumer Act might merit discussion here if we were the first court to interpret the CLRA. However, those aspects are of less significance in view of the judicial decisions and amendments to the CLRA that have occurred over the last 45 years.
*1258*7208. Omissions of Material Fact are Actionable Under the CLRA
Based on the statutory text, legislative history (which includes the National Consumer Act), the judicial decisions and statutes that existed when the CLRA was enacted, the subsequent case law, and the many amendments to the CLRA from 1975 through 2016, we join Klein , McAdams and the other cases concluding that failures to disclose material facts are actionable under the CLRA. In particular, we conclude paragraphs (5), (7) and (9) of subdivision (a) of Civil Code section 1770 proscribe material omissions in certain situations.
Not every omission or nondisclosure of fact is actionable. Consequently, we must adopt a test identifying which omissions or nondisclosures fall within the scope of the CLRA. Stating that test in general terms, we conclude an omission is actionable under the CLRA if the omitted fact is (1) "contrary to a [material] representation actually made by the defendant" or (2) is "a fact the defendant was obliged to disclose." ( Daugherty , supra , 144 Cal.App.4th at p. 835,
In Collins , the court identified four situations in which a failure to disclose a fact constitutes a deceptive practice actionable under the CLRA. ( Collins , supra , 202 Cal.App.4th at p. 255,
9. Duty to Disclose Safety Concerns
A legal question presented in this appeal is whether an independent duty of disclosure is imposed on retail sellers of automobiles when the fact omitted implicates safety concerns. As an alternative to characterizing the disclosure of safety concerns as an independent duty, it can be viewed as a specific application of the duty to disclose (1) when defendants have exclusive *1259knowledge of material facts not known or reasonably accessible to the plaintiff or (2) when defendants make partial representations that are misleading because some other material fact has not been disclosed. ( Collins , supra , 202 Cal.App.4th at p. 255,
The possibility of a duty to disclose safety defects was raised in *721Bardin , supra ,
In Daugherty , supra ,
In Mui Ho v. Toyota Motor Corp . (N.D.Cal 2013)
Based on our examination of the federal and Court of Appeal decisions discussing safety concerns, we conclude there is no independent duty to disclose such concerns. Rather, a duty to disclose material safety concerns "can be actionable in four situations: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material fact." ( Mui Ho , supra , 931 F.Supp.2d at p. 996.) In Mui Ho , the plaintiffs alleged the failure to disclose facts about the headlamps was "actionable *722because (1) Defendants had exclusive knowledge of the material fact that the headlamps were defective, or, alternatively, (2) Defendants actively concealed that material fact." ( Id . at pp. 996-997.) Thus, Mui Ho does not establish the existence of an independent duty to disclose safety concerns that exists outside the four situations where a duty to disclose is recognized by California courts.
B. Duty to Disclose Element
The foregoing discussion addressed the substantive principles pertaining to nondisclosures of fact actionable under the CLRA and the circumstances that must exist for the defendant to have a duty to disclose a material fact. Here, we consider the procedural rules that govern the proper pleading of a claim under the CLRA based on a breach of a duty to disclose a material fact.
1. Specificity of the Pleading
A general rule of pleading in civil cases is that "the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts." ( Committee on Children's Television, Inc. v. General Foods Corp. (1983)
*1261The application of the general rule and its exception to claims under the CLRA and UCL asserting deceptive acts or practices based on fraud-like allegations of concealment or a failure to disclose material facts is not entirely clear. For example, in Committee , the Supreme Court stated: "The requirement that fraud be pleaded with specificity, discussed in part III of this opinion, does not apply to causes of action under the consumer protection statutes." ( Committee , supra , 35 Cal.3d at p. 212, fn. 11,
2. Sufficiency of Gutierrez's Allegations
We conclude Gutierrez's allegations are sufficient to establish CarMax had a duty to disclose the existence of the recall and the fact that the Hyundai's stop lamp switch had not been replaced in accordance with the recall.
*723First, the complaint alleged (1) the recall related to the stop lamp switch, which was a critical safety-related component of the vehicle's braking system, and (2) it was unsafe to operate a vehicle with a defective stop lamp switch. Also, the name of the part, "stop lamp switch," reasonably supports the inference that the malfunctioning of the part will affect the operation of the vehicles brake lights, which are an important safety-related feature that alerts other drivers the vehicle is braking and thereby reduces the risk of a rear end collision. (See
Of course, materiality usually is a question of fact. ( Engalla v. Permanente Medical Group, Inc. (1997)
Second, the complaint alleged facts relevant to establishing a duty to disclose the material information by alleging the stop lamp switch was "a critical safety related component of the Hyundai braking system" and sales staff advised Gutierrez "that the Hyundai was in excellent condition since it passed a rigorous 125-point quality inspection." A copy of the inspection certificate was attached to the complaint and it listed specific points relating to both the vehicle's brake system and its lighting system, with "Brake lights" one of the specific 125 points inspected. The complaint also alleged CarMax engaged in misleading business practices by representing the vehicle passed a rigorous 125-point quality inspection, but not disclosing the vehicle was subject to a safety recall. A duty to disclose cannot exist if the defendant was not aware of the facts that were not disclosed. Here, the complaint did not specifically allege CarMax knew of the safety recall and that the stop lamp switch on the Hyundai had not been replaced in accordance with the recall notice. However, we conclude the facts alleged are sufficient to reasonably infer CarMax's knowledge. For instance, the complaint alleges the only reason CarMax did not disclose the recall or have the recall work performed was CarMax deemed making money more important than protecting its customers from dangers relating to serious safety recalls. As the lack of knowledge would be a separate reason for not disclosing the recall, it is reasonable to infer from this allegation that CarMax actually knew of the recall. (See Code Civ. Proc., § 452 [construction of pleadings].)
We conclude these allegations are sufficient to plead the existence of a duty to *724disclose information about the safety recall on the ground CarMax made *1263partial representations about the vehicle's braking and lighting systems and those representations were likely to mislead for want of communication of the facts about the recall. (See Klein , supra , 202 Cal.App.4th at p. 1382,
C. "Any Damage" Element of a CLRA Claim
1. Legal Principles
The CLRA authorizes any consumer "who suffers any damage" because of a unlawful method, act or practice to bring an action for various forms of relief, including (1) actual damages, (2) an order enjoining the methods, acts, or practices, (3) restitution of property, (4) punitive damages, and (5) any other relief the court deems proper. ( Civ. Code, § 1780, subd. (a).) "This statutory language makes clear that, to obtain relief under the CLRA, [Gutierrez] must have suffered some damage caused by a practice deemed unlawful under Civil Code section 1770." ( Steroid Hormone Product Cases (2010)
Accordingly, a plaintiff pursuing a CLRA action must plead facts showing he or she suffered "any damage" as that phrase is used in Civil Code section 1780, subdivision (a), which is not synonymous with "actual damages" and may encompass harms other than pecuniary damages. ( Meyer v. Sprint Spectrum L.P. (2009)
2. Gutierrez's Allegations
Paragraph 13 of the complaint alleges that if Gutierrez "had known the true condition, including recall history, of the Hyundai before the purchase, she would not have purchased it." Gutierrez incorporated this paragraph into her eighth cause of action, which alleged violations of the CLRA. Paragraph 77 *1264of the complaint, which is part of the CLRA cause of action, alleges Gutierrez is entitled to various forms of relief, including an injunction and "restitution of property."
3. Application of Legal Principles to Facts Alleged
Gutierrez's allegations that she would not have purchased the Hyundai if she had known its recall history and her request for restitution adequately alleged that she suffered "any damage" as that phrase is used in Civil Code section 1780, subdivision (a). The same type of damage was alleged by the plaintiff in Steroid Hormone Product Cases , and that plaintiff was granted class certification of a CLRA claim. ( Steroid Hormone Product Cases , supra , 181 Cal.App.4th at pp. 156-157,
CarMax contends we are required to find as a matter of law that the Gutierrez did not experience "any damage" for purposes of Civil Code section 1780, subdivision (a) because the potentially defective part (i.e., the stop lamp switch on the Hyundai) was replaced without charge. CarMax, however, has cited no authority for the principle that replacement negates "any damage" that a consumer might have experienced and thereby precludes the consumer from pursuing an injunction or restitution under Civil Code section 1780, subdivision (a)(2) & (3).22 Furthermore, based on the timing of the replacement of the Hyundai's recalled stop lamp switch, it does not logically preclude Gutierrez from alleging and proving that the purchase would not have been made if the undisclosed information had been made known before the sale.
In addition, the limiting language in CarMax's purchase agreement and warranty document does not preclude Gutierrez's CLRA cause of action. The CLRA expressly declares that "[a]ny waiver by a consumer" of the CLRA's provisions "is contrary to public policy and shall be unenforceable and void." ( Civ. Code, § 1751.) Accordingly, we conclude the limitations in CarMax's warranty do not operate as a waiver of Gutierrez's right to obtain restitution if she proves CarMax engaged in an unlawful practice.
*1265IV. UNFAIR COMPETITION LAW
A. Overview
The UCL prohibits, and provides civil remedies for, unfair competition. ( Kwikset Corp. v. Superior Court (2011)
"Actions for relief pursuant to" the UCL shall be prosecuted exclusively by designated government officials "or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition." ( Bus. & Prof. Code, § 17204.) The "injury in fact" and causation requirements were added by the voters in 2004 when they passed Proposition 64. ( McGill , supra , 2 Cal.5th at p. 958,
As to the relief that can be obtained in an "[a]ction for relief" pursuant to the UCL, injunctions are the primary form of relief available under the UCL to protect consumers from unfair business practices and restitution is a type of ancillary relief. ( Kwikset , supra , 51 Cal.4th at p. 337,
*726action generally are limited to injunctive relief and restitution. ( Veera v. Banana Republic, LLC (2016)
The UCL's definition of unfair competition uses the terms "unlawful, unfair or fraudulent" in the disjunctive. ( Bus. & Prof. Code, § 17200.) Consequently, the definition establishes three varieties of unfair competition. ( Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999)
*1266B. Gutierrez Has Stated a UCL Claim
CarMax does not dispute the legal conclusion that a CLRA violation can serve as the predicate for a UCL cause of action. Instead, CarMax appears to accept this conclusion, arguing Gutierrez's UCL claim "is substantively dependent upon the CLRA claim" and, therefore, "fails because the CLRA claim [ ] fails on the merits." We reject this argument because Gutierrez's CLRA claim did not fail on its merits. Therefore, we conclude Gutierrez has stated a cause of action for an unlawful practice that is actionable under the UCL because (1) she has alleged facts sufficient to state a cause of action for a violation of the CLRA and (2) restitution is a type of relief available under both statutes.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and to enter a new order overruling the demurrer as to the seventh (UCL) and eighth (CLRA) causes of action. Gutierrez shall recover her costs on appeal.
I CONCUR:
MEEHAN, J.
Poochigian, Acting P.J., concurring and dissenting
I concur in the majority's conclusion that Gutierrez cannot obtain relief on her warranty claim. I respectfully dissent from the majority's conclusions with respect to plaintiff's claims under the Consumer Legal Remedies Act ( Civ. Code, § 1750 et seq. ; "CLRA")23 and the Unfair Competition Law ( Bus. & Prof. Code, § 17200 et seq ; "UCL").24
Plaintiff alleges CarMax violated paragraphs (5), (7), and (9) of subdivision (a) of Civil Code section 1770. The question presented is whether these provisions of the CLRA cover omissions (i.e., the failure to provide certain information). (Maj. opn., ante , at pp. 712-13.)
*727Plain Meaning
Paragraph (5) prohibits "[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he or she does not have." ( § 1770, subd. (a)(5).)
*1267Paragraph (7) prohibits "[r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another." ( § 1770, subd. (a)(7).) The plain meaning of these provisions is simple: You cannot lie about or misstate the listed aspects of a good, service or person.
Paragraph (9) prohibits "[a]dvertising goods or services with intent not to sell them as advertised." ( § 1770, subd. (a)(9).) The plain meaning of this provision is also simple: You cannot communicate something about a good or service in an advertisement, knowing you are not going to sell the good or service as advertised.
All three of these provisions tell sellers what they cannot say, not what they must say.
The majority concludes that the word "representing" is ambiguous because while it can mean "presenting written or oral statements of fact to another" it can also encompass "statements" that are "implied-in-fact or implied-in-law."25 26 (Maj. opn., ante , at p. 713.) But a "statement" cannot be implied, by definition. Of course, statements can have an implied meaning , but this simply refers to the fact that the meaning of some statements must be ascertained through a chain of inferences. For example, it would have been arguably misleading if, in this case, CarMax had said all of their vehicles' parts are "up-to-date" at the time of sale. Identifying the statement as misleading would require more inferential steps than if CarMax had said "none of the stop lamps in our vehicles are subject to a recall." But both statements would be misrepresentations under the CLRA. However, the majority's concept of implied statements is entirely different, and imposes liability even when the seller makes no relevant representation whatsoever.27 That is, liability can arise solely from the failure to disclose rather than from *1268the misleading nature of a statement. This concept cannot be reconciled with any reasonable definition of "representation" or "statement."
In sum, the meaning of a statement ultimately found to be misleading may be "implied" in the sense that it is informed by context or reasonable inferences drawn the words of the statement. But implication *728cannot create an actionable statement or representation where none exists.
Moreover, even accepting the majority's conclusion that there are two possible ways to interpret "representing," we would still need to pick the better of the two. For this task, the majority says we must look to the statutory context. (Maj. opn., ante , at pp. 713-14.) But the majority appears to concede the statutory context points to my interpretation. The two contextual considerations are: (1) the enumeration of certain grounds for omission liability in subdivisions (a)(10) through (12) and (a)(20), (22); and (2) the statutory statement of the CLRA's purpose ( § 1760.) The majority acknowledges the first consideration "demonstrate[s] the Legislature was capable of explicitly addressing failures to provide information and, thus, support[s] the inference that the Legislature did not intend the provisions at issue in this appeal to reach omissions and failures to disclose information. [Citation.]" (Maj. opn., ante , at p. 714, fn. 12.) And the majority concludes the second consideration merely creates more "uncertainty in how to interpret the statute." (Maj. opn., ante , at pp. 714.) In sum, one contextual indicator undermines the majority's reading, and another is uncertain.
Maxims of Statutory Construction
If the plain meaning were not enough, trusted maxims of statutory construction confirm it. For one, " '[t]he expression of some things in a statute necessarily means the exclusion of other things not expressed.' [Citations.]" ( Dean v. Superior Court (1998)
Relatedly, the inclusion of statutory text in the CLRA prohibiting certain omissions demonstrates "the Legislature knew how to, but did not" ( In re Reeves *1269(2005)
Finally, interpreting the CLRA to broadly prohibit material omissions would render the specific omissions actually listed in CLRA superfluous. (See § 3541 ["An interpretation which gives effect is preferred to one which makes void."] )
Majority's Holding
The majority says omissions are actionable under the CLRA if (1) the omitted fact is contrary to a material representation made by the defendant or (2) the defendant omits a fact he or she was obliged to disclose.28 (Maj. opn., ante , at pp. 719-20.)
*729In arriving at this result, the majority concludes that a 1925 workers' compensation case that equated concealment with misrepresentation, "provides a basis for inferring the Legislature was aware that the CLRA's reference to 'unfair or deceptive acts'29 involving 'representing' would be interpreted to include both affirmative misrepresentations of fact and the nondisclosure of material facts." (Maj. opn., ante , at p. 716.) This would mean the Legislature intended to create liability for material omissions, but instead of simply including clear language covering omissions (like it did elsewhere in the statute), it obliquely referred to " 'unfair or deceptive acts' " involving "represent[ations]." (Maj. opn., ante , at pp. 715-17.) I doubt the Legislature intended to create such liability "in so cryptic a fashion." ( FDA v. Brown & Williamson Tobacco Corp. (2000)
Though the majority assures us that "[n]ot every omission or nondisclosure of fact is actionable" (Maj. opn., ante , at p. 720), its limitations on omission *1270liability are illusory. The majority identifies a category of omission liability that arises whenever a defendant conceals a material fact. (Maj. opn., ante , at pp. 721-22.) "[A] fact is 'material' if a reasonable consumer would deem it important in determining how to act in the transaction at issue. [Citation.]" (Maj. opn., ante , at p. 720.) It is hard to imagine many omissions that would fall outside of this expansive category.
Legislative History
The majority also compares the CLRA to the model legislation on which it was based: the National Consumer Act proposed by Boston College. (Maj. opn., ante , at p. 719.) The National Consumer Act, like the CLRA, lists unlawful acts and practices. The National Consumer Act contained two categories the majority believes "could have been interpreted as encompassing omissions of material facts ...." (Maj. opn., ante , at p. 719.) However, those two categories were not included in the CLRA. That is, the CLRA specifically excluded categories that might support omission liability.
The majority admits that the remainder of the legislative history cuts both ways. (Maj. opn., ante , at pp. 713-15.) Even if that were not the case, the legislative history would be of limited utility. Only "the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed 'into law' by the Governor. The same ... scrutiny does not befall the committee reports, caucus analyses, authors' statements, legislative counsel digests and other documents which make up a statute's 'legislative history.' " ( *730Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992)
Legislative Inaction
The majority also observes that several appellate cases have indicated the CLRA imposes liability for certain omissions and the Legislature has not amended the statute to contradict those cases, despite amending the statute for other reasons.
Legislative inaction is not enough to overcome the statute's plain meaning, which is confirmed by several maxims of statutory construction. Moreover, our Supreme Court recently observed that "[a]rguments based on supposed legislative acquiescence rarely do much to persuade. [Citation.]" ( Scher v. Burke (2017)
Impact on Merchantability Law
None of this is to say the law should ignore businesses selling unsafe vehicles as long as they do not lie about it. But absent a misrepresentation by the seller, such claims are not addressed by the CLRA, but instead by other bodies of law, including the implied warranty of merchantability. (See Brand v. Hyundai Motor America (2014)
The best way to harmonize the CLRA with implied warranty jurisprudence is to adopt the plain meaning of "representing" in the CLRA. Implied warranty law addresses the situation of goods failing to meet minimum levels of merchantability, regardless of what the seller did or did not say; and the CLRA, with its threat of punitive damages, steps in only when the seller acts deceptively.
By creating expansive omission-based liability under the CLRA, the majority is supplanting implied warranty law and upsetting the delicate balance it achieves.
Conclusion
In sum, the CLRA applies only to misrepresentations and specific, inapplicable omissions. Since the operative complaint does not successfully allege *1272any affirmative misrepresentations under CLRA,30 the *731sustaining of the demurrer should be upheld.
I respectfully dissent from the majority's contrary conclusion.
Related
Cite This Page — Counsel Stack
228 Cal. Rptr. 3d 699, 19 Cal. App. 5th 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutierrez-v-carmax-auto-superstores-cal-calctapp5d-2018.