Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC195461, Charles W. McCoy Jr., Judge.
Law Offices of John A. Schlaff and John A. Schlaff for Plaintiff and Appellant.
Sonnett & Associates, Anothy E. Sonnett, Jocelyn A. Julian; Yukevich & Sonnett, Stephanie A. Hingle; Michelman & Robinson, Carol Boyd, Larry Nathenson; Neumeyer & Boyd and Katherine Tatikian for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiff and appellant Keith Alan (Alan) appeals an order denying a motion for class certification. Alan claims the trial court erred by: (1) entering an order limiting the scope of discovery; (2) denying a motion to amend the complaint; and (3) denying the motion for class certification. Finding no error, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Alan is Involved in An Automobile Accident
Alan alleged that in January 1996, his 1987 Acura Integra stopped on a freeway due to a failed timing belt. Three vehicles rear-ended his Integra in a series of collisions.
2. Alan Files Class Action Lawsuit
Alan filed a class action lawsuit against defendant and respondent American Honda Motor Co., Inc. (Honda). In the third amended complaint, Alan alleged that Honda violated the Consumer Legal Remedies Act (Civ. Code, § 1770 et seq.) (CLRA), and engaged in fraud and negligent misrepresentation. Alan also alleged violations of Business and Professions Code sections 17200 and 17500.
Alan later filed a request for dismissal without prejudice of the class claims for fraud and negligent misrepresentation.
Alan alleged that Honda manufactured certain automobiles to have timing belts, such as Alan’s 1987 Acura Integra. Alan also alleged that timing belts have a maximum useful life span measured in odometer miles, beyond which it is not prudent to continue to drive without replacing the timing belt. Alan further alleged that in the applicable owner’s manual, Honda failed to warn that timing belts might fail or need to be replaced at various intervals. Alan alleged Honda failed to warn about potential timing belt failures in order to save money.
Alan alleged the purported class members suffered damages by paying for automobiles the true values of which were less than represented by Honda. Alan also alleged that the purported class members who discovered that the timing belts needed to be changed suffered damages by paying hundreds of dollars for required maintenance which was concealed from them at the time of purchase. Finally, Alan alleged that some purported class members did not have their timing belts changed at the required interval and those persons incurred property or other damage.
3. Trial Court Limits Scope of Discovery
On January 8, 1999, during a discovery hearing, the trial court limited the scope of discovery to the 1987 Acura Integra model vehicles, subject to re-visiting the issue later. Alan, however, served a number of discovery requests concerning other vehicle models manufactured by Honda. In response, Honda filed a motion for a protective order.
During a February 10, 2000 hearing on Honda’s motion for a protective order, the trial court found the scope of the complaint to be “unmanageable.” The court suggested limiting the action to one vehicle and tolling the statute of limitations as to claims involving other vehicles. The court ruled: “The case[] will go forward as to [the] Acura Integra and the time period from November 1986 through 1993. That is without prejudice.”
4. Stipulated Tolling Agreement
On November 5, 2001, the parties entered into a stipulated order regarding tolling. The order provided: “IT IS HEREBY ORDERED THAT, as to years and models of vehicles of both the ‘Honda’ and ‘Acura’ make other than, and in addition to 1986-1993 Acura Integras, the applicable statutes of limitations are, and have been, tolled for any and all individual and/or representative claims of members of the purported class alleged in Keith Alan v. American Honda, Los Angeles County Superior Court, Case No. BC 195 461 (‘Alan action’) from August 5, 1998, when the Alan action was filed, until the termination of the Alan action. [¶] As to vehicles other than 1986-1993 Acura Integras, the five-year mandatory dismissal statutes, Cal. Code of Civil Procedure §§ 583.310 and 583.360, are, and have been, tolled from August 5, 1998 until the final conclusion of the Alan action.” (Original underscoring.)
Previously, during a January 19, 2001 trial court discovery hearing, counsel for Alan stated his understanding of the parties’ agreement regarding limiting discovery. Counsel stated: “What we agreed was that the case would be limited down to certain model years of Acura Integra, but that as to the other allegations that were made in the complaint, which covered all kinds of Honda vehicles with the same timing belt/timing chain problems, that any claims of that subset of people of the class as originally [pled] would be tolled so there wouldn’t be any prejudice to their being carved out at this time.”
5. Alan Moves for Class Certification
On April 2, 2002, Alan moved for class certification. Contrary to the foregoing stipulated tolling agreement, Alan sought certification of a “Plaintiff Class” consisting of all past and current owners of “Subject Vehicles.” In plaintiff’s third amended complaint, plaintiff defined the “Subject Vehicles” as any Acura or Honda automobiles, manufactured or sold by defendant which contained a timing belt as opposed to a timing chain.
Plaintiff also moved to certify four additional sub-classes as follows:
In the motion, Alan asserted that his 1996 accident was caused by a failed timing belt. He further asserted that he learned in 1998 that the reason the timing belt had failed was because the Honda service agent who performed the 180,000 mile maintenance check-up had not replaced the timing belt. Alan further asserted that the service agent had not replaced the timing belt because Honda had not made any service recommendations regarding replacement of timing belts.
Alan further explained that that his owner’s manual made no mention of the need to service the timing belt. The owner’s manual also stated that “[t]he Required Maintenance Schedule specifies all maintenance required to keep your car in peak operating condition. [Fn. omitted.]” Alan noted that the “Required Maintenance Schedule” did not include any references to changing a timing belt. Alan claimed that this statement in the owner’s manual was Honda’s initial misrepresentation, which appeared in the 1986 to 1989 owner’s manuals.
Alan claimed that Honda’s statements in the owner’s manual regarding the “Required Maintenance Schedule” and “peak operating condition” constituted a misrepresentation because Honda subsequently changed its recommendations regarding replacement of the timing belts. During discovery, Honda produced a written February 1993 notice to its authorized dealers regarding maintenance of timing belts. The notice provided: “Some of you have noticed that ’90 and later service and owner’s manuals recommend timing belt replacement at 90,000 miles or 6 years. But what about ’86-89 models? [¶] . . . The timing belt replacement interval for ’86-89 models is also 90,000 miles/6 years. Prior to ’90, however, our maintenance schedules only went to 75,000 miles/5 years. [¶] Whenever a car comes in for a timing belt replacement, you should also recommend that the water pump be replaced at the same time. Point out the cost savings over replacing both parts individually, and remind the customer that the car will have 180,000 miles on it before it needs another belt. The pump may not make it that far. [¶] Some customers are not easily convinced that timing belt and water pump replacements are necessary. And they may never experience a failure if the belt and pump aren’t replaced. However, since these items are critical to the continued reliability of the engine at high mileage, the relatively small cost involved is money well spent.”
Alan also submitted evidence that Honda’s authorized service agent, Cerritos Acura, took the position that is was never a matter of policy for timing belts in Acura Integras to be changed on a periodic basis. Alan asserted that Cerritos Acura took this position following Honda’s written February 1993 notice recommending timing belt replacement at 90,000 miles or 6 years.
Alan claimed that this alleged misrepresentation constituted “wrongful conduct against the public as a whole” and a commercial injury against the public at large under the CLRA. Alan asserted that the CLRA prohibited representing that goods have characteristics which they do not have and also prohibited representing that goods are of a particular style or model, when they are not.
Alan also asserted that any consumer who was the target of such a misrepresentation prohibited by the CLRA suffered damages, even if the person suffered no pecuniary loss.
6. Alan Seeks to Amend the Complaint
On April 16, 2002, plaintiff filed a motion for leave to file a fourth amended complaint. There, plaintiff sought leave to amend the complaint to allege an alternative cause of action under the CLRA.
Alan explained that for post-1990 vehicles, defendant began advising purchasers that the timing belts needed to be changed every 90,000 miles or 72 months. Alan claimed that during discovery Honda admitted that this recommendation regarding the timing belt was unnecessary because timing belts are normally inspected every 15,000 miles during a valve adjustment.
Alan claimed that for 1986 to 1994 automobiles, the representation that timing belts needed to be changed every 90,000 miles or 72 months was therefore unnecessary and a violation of the CLRA, and specifically, Civil Code section 1770, subdivision (a)(15), which prohibits “[r]epresenting that a part, replacement, or repair service is needed when it is not.”
7. The Trial Court Denies Motion for Leave to Amend
On June 3, 2002, the trial court denied plaintiff’s motion for leave to amend. The court found that plaintiff failed to allege facts sufficient to state a cause of action under California Civil Code section 1770, subdivision (a)(15).
In its order, the court explained: “When a cause of action is premised on a fraudulent statement, reliance is a necessary element of the claim. [Citations.] Reliance is an element of a CLRA claim, although it may be imputed in appropriate class cases. [Citation.] In cases where the plaintiff can show the defendant made the same statement to all of its customers as a matter of practice, and plaintiff shows the statement was made to him and he relied on the statement, reliance by the putative class members will be imputed. [Citations.] [¶] Here, however, Alan has not alleged facts establishing the alleged fraudulent statement was made to him, that he relied on it, or that Honda’s authorized dealers made the statement to all of its customers. At oral argument Plaintiff’s Counsel urged the Court to assume that because Honda made the recommendation in its newsletter, the authorized dealers made the same recommendation to all its customers. Alan asks the Court to impute reliance to the putative class in circumstances where Alan has not alleged he heard the alleged fraudulent statement. Cases allowing a court to impute reliance to a putative class do not extend to these circumstances. [¶] Because Alan has not alleged facts showing he relied on the alleged fraudulent statement or that Honda’s authorized dealers made the same fraudulent misrepresentation to all its customers, Alan has failed to allege facts sufficient to state a cause of action.”
8. The Trial Court Denies Motion for Class Certification
The trial court denied plaintiff’s motion for class certification. The court concluded that a plaintiff must show reliance to establish a cause of action for violation of the CLRA. Alternatively, the court explained that pursuant to Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282 (Massachusetts Mutual), a court can infer reliance in situations in which material false representations were made to persons whose subsequent acts were consistent with reliance upon the alleged misrepresentation.
The trial court explained: “Here, Alan proffers no evidence tending to show (1) class members’ awareness of the alleged misrepresentation, or (2) how class members suffered detriment by way of the alleged misrepresentation. Alan has not shown that he or other class members read their owner’s manuals. Moreover, he has not demonstrated that putative class members either purchased their Integras in reliance on the alleged misrepresentation that timing belts need not be replaced or experienced injury via failure to replace their timing belts. Consequently, the Court finds that individual issues predominate regarding whether class members knew of the alleged misrepresentation and whether class members detrimentally relied on the misrepresentation. [Fn. omitted.]”
The court further explained: “[I]t must be individually determined whether putative class members received an owner’s manual, read the owner’s manual, and/or purchased their vehicles because of Honda’s alleged misrepresentation. [Fn. omitted.]” In a footnote, the trial court further explained: “Individual inquiry would be necessary not only to determine if putative class members read their owner’s manuals, potentially making them aware of the alleged misrepresentation, but also to determine if they received an owner’s manual. The putative class includes all former and current owners of the subject Integras. Current owners, who purchased used Integras from original owners, may not have received an owner’s manual from the original owners. If they did not receive an owner’s manual, then they cannot have relied on the alleged misrepresentation in the owner’s manual.”
The trial court also concluded that damages are an element of a CLRA claim. The trial court rejected Alan’s contention that because Honda allegedly engaged in a commercial wrong by failing to advise consumers in the owners’ manuals of the need for periodic maintenance of the timing belt, putative class members suffered injury.
The court explained: “Honda’s records reflect a small number of malfunctions. The number being small, and because Alan lacks other evidence showing common injury, the Court is unpersuaded that nationwide commonality exists. These records, alone, do not establish a casual connection between the malfunctioning belts and Honda’s alleged misrepresentation. As explained above with respect to reliance, Alan must submit evidence conveying detrimental change of position among potential class members. Here, however, he has no evidence explaining how anyone experienced injury. He has not shown that class members commonly knew of Honda’s alleged misrepresentation or purchased their vehicles in reliance on it. [¶] . . . So, while the alleged misrepresentation might constitute a commercial wrong, without awareness of it, and without detrimental position change because of it, one cannot be injured by the alleged misrepresentation. Alan needs more than just evidence showing the alleged misrepresentation. He needs evidence showing class members’ knowledge of the alleged misrepresentation, as well as their reliance on it, for damages flow from detrimental reliance. Because he does not proffer the required evidence, Alan fails to establish predominating commonality.”
Alan filed a notice of appeal from the order denying class certification. In a prior opinion, we dismissed the appeal as untimely. In Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, the Supreme Court reversed and remanded the case to this court for further proceedings.
CONTENTIONS
Alan contends: (1) the trial court erred by limiting the scope of the class claims; (2) the trial court erred by denying the motion for leave to file a fourth amended complaint; and (3) the trial court erred by denying the motion for class certification.
DISCUSSION
1. Alan Has Not Shown Error From the Order Limiting Discovery
Alan claims the trial court erred by limiting the scope of discovery to the Acura Integra model vehicles. We disagree.
The record shows that Alan agreed to the limitation on discovery, that a stipulated tolling agreement protected his rights to seek additional discovery and file additional claims with respect to other vehicles, and that he has not shown prejudice resulting from the order limiting discovery.
Specifically, on January 8, 1999, during a discovery hearing, the trial court limited the scope of discovery to the 1987 Acura Integra model vehicles, subject to re-visiting the issue later. Then, during a February 10, 2000 hearing, the trial court found the scope of the complaint to be “unmanageable.” At that hearing, the court suggested limiting the action to one vehicle and tolling the statute of limitations as to claims involving other vehicles.
Later, at a January 19, 2001 hearing, counsel for Alan acknowledged that the parties agreed to limit the action to certain model years of Acura Integras and that a tolling agreement would permit the action to proceed so that Alan would suffer no prejudice with respect to claims based upon other vehicles. Significantly, on November 5, 2001, the parties entered into a stipulated tolling agreement to protect Alan’s rights to proceed with claims as to other vehicles.
In conclusion, Alan voluntarily agreed to the limitation on discovery. In addition, Alan has shown no prejudice resulting from the order limiting discovery.
2. Alan did not Timely Appeal the Trial Court Order Denying His Motion For Leave to Amend
An order denying leave to amend is immediately appealable if it eliminates all issues between a plaintiff and a defendant. (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470, fn 1 [“We agree with appellant that the order denying the motion to amend is appealable, because it effectively terminates the action as to the ‘true’ plaintiff.”]; Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 454 [“Finally, orders denying leave to amend a complaint . . . are appealable where the orders ‘have the effect of eliminating issues between a plaintiff and defendant so that nothing is left to be determined.’ ”]; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 467, fn 1 (Guenter) [order denying plaintiff’s motion to amend complaint to add other beneficiaries of a deed of trust as named plaintiffs was immediately appealable]; and Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241 [“Although ordinarily the denial of a motion for leave to file an amended complaint is not an appealable order, there is an exception here, where the order was, in effect, a final determination of appellant’s rights in capacity as administratix of the estate. [Citation.] In that capacity appellant was a separate party as to whom there was no issue left to be determined, and the order operated as a final judgment for purposes of appeal.”]
In Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, our Supreme Court held that an order sustaining a demurrer to class action allegations was an appealable order. The court stated: “[T]he order is tantamount to a dismissal of the action as to all members of the class other than plaintiff. [Citations.] It has virtually demolished the action as a class action. If the propriety of such disposition could not now be reviewed, it can never be reviewed.” (Id. at p. 699.) This is generally known as the “death knell” doctrine. (Shelley v. City of Los Angeles (1995) 36 Cal.App.4th 692, 695 (Shelley).)
See also Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [“A decision by a trial court denying certification to an entire class is an appealable order.”].)
Other courts have examined the rationale of Daar v. Yellow Cab Co. with respect to orders effectively denying class certification. The courts have held that a “death knell” order, which has the effect of denying certification as a class action, is an appealable order. (See Shelley, supra, 36 Cal.App.4th at p. 695; Guenter, supra, 140 Cal.App.3d at p. 464.)
In addition, as explained in Guenter, “[t]he law of this state does not allow, on appeal from a judgment or appealable order, a review of any decision or order from which an appeal might previously have been taken.” (Guenter, supra, 140 Cal.App.3d at p. 465.)
In this case, the trial court order denying Alan’s motion to amend constituted a death knell order which denied certification of a distinct class of claims and was tantamount to a dismissal of the action as to all members of the class. In other words, the order denying the motion to amend eliminated the claims of purported class members who allegedly received Honda’s unnecessary representation that timing belts should be changed every 90,000 miles or 72 months. Thus, the order denying the motion for leave to amend was immediately appealable.
Specifically, on June 3, 2002, the trial court denied plaintiff’s motion for leave to amend to file a proposed fourth amended complaint. There, Alan sought to add a purported class of individuals who received a service recommendation that timing belts should be changed every 90,000 miles or 72 months, which was allegedly an unnecessary service recommendation and therefore a violation of the CLRA.
This proposed class in the fourth amended complaint was materially different and distinct from the purported class already at issue in the litigation. In other words, the proposed class in the fourth amended complaint alleged a new class with a distinct set of claims based upon receiving an unnecessary service recommendation.
Pursuant to California Rules of Court, rule 8.104 (a), Alan had 180 days after June 3, 2002, to file a notice of appeal from the death knell order denying the motion to amend. Alan did not file the notice of appeal until March 6, 2003. Thus, more than 180 days passed after entry of the order denying the motion for leave to amend. Because Alan did not file a timely notice of appeal, this court is without jurisdiction to consider the appeal from the order denying the motion for leave to amend. (Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 742.) The order denying leave to amend is therefore not reviewable in this appeal.
3. The Trial Court Did Not Abuse Its Discretion By Denying the Motion for Leave to Amend
Alternatively, even if we had jurisdiction, we would conclude that the trial court did not abuse its discretion by denying Alan’s motion for leave to amend. In the fourth amended complaint, Alan sought to add a CLRA cause of action based upon the allegation that Honda made an unnecessary service recommendation and therefore violated Civil Code section 1770, subdivision (a)(15), which prohibited “[r]epresenting that a part, replacement, or repair service is needed when it is not.” The trial court denied the motion on the basis that Alan failed to allege facts to state a cause of action for violation of the CLRA. Specifically, the trial court concluded that Alan failed to show reliance or facts allowing an inference of reliance by class members. We agree with the reasoning of the trial court.
As explained below in section 4 of this Discussion, to state a cause of action under the CLRA, Alan must show reliance or facts supporting an inference of reliance. Alan failed to make this showing. Alan presented no facts that he or anyone else allegedly relied upon the purported unnecessary service recommendation. Alan has not shown that he or anyone else obtained timing belt service based upon the allegedly unnecessary service recommendation.
The trial court therefore did not abuse its discretion by denying the motion to amend.
4. The Trial Court Did Not Err by Denying Alan’s Motion for Class Certification Because Alan Failed to Show Common Issues Predominated as to Reliance and Damages
a. Standard of Review
We review for abuse of discretion. (Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 361 (Occidental); see also Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655 (Caro) [“Trial courts have great discretion with regard to class certification. [Citation.] ‘Our task on appeal is not to determine in the first instance whether the requested class is appropriate but rather whether the trial court has abused its discretion in denying certification.’ ”].)
In Massachusetts Mutual, the court also explained: “An appellate court ‘will “not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation].” ’ [Citation.] Where a certification order turns on inferences to be drawn from the facts, ‘ “the reviewing court has no authority to substitute its decision for that of the trial court.” ’ ” (Id. at p. 1287.)
b. Analysis
Alan claims that the trial court abused its discretion or otherwise erred by denying the motion for class certification. We disagree.
According to the court in Massachusetts Mutual, “[a] class action under the CLRA is governed exclusively by the terms of Civil Code section 1781, rather than the more general provisions of Code of Civil Procedure section 382.” (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1287.)
Civil Code section 1781 provides in pertinent part: “(a) Any consumer entitled to bring an action under Section 1780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages or obtain other relief as provided for in Section 1780. [¶] (b) The court shall permit the suit to be maintained on behalf of all members of the represented class if all of the following conditions exist: [¶] (1) It is impracticable to bring all members of the class before the court. [¶] (2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members. [¶] (3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class. [¶] (4) The representative plaintiffs will fairly and adequately protect the interests of the class.” (Italics added.)
In Occidental Land, supra, 18 Cal.3d at p. 360, our Supreme Court stated: “It is well established that the two basic requirements necessary to sustain a class action are the existence of an ascertainable class and a well-defined community of interest in the questions of law and fact involved. [Citations.] It must be shown that a substantial benefit both to the litigants and to the court will result, and the burden of that showing falls on the plaintiff.” Likewise, in Massachusetts Mutual,the court explained that “Civil Code section 1781, subdivision (b), like Code of Civil Procedure section 382, permits a class action only when there are questions of law or fact which predominate over questions affecting individual members.” (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1287.)
i. Alan Failed to Show Common Issues as to Reliance Predominated or Facts Supporting an Inference of Class- Wide Reliance
Alan asserts that to obtain certification of a CLRA class, he does not have to show reliance by class members or facts supporting an inference of class reliance. We disagree. In Massachusetts Mutual, the court held that reliance or a class wide inference of reliance based upon a material misrepresentation is necessary to obtain certification of a CLRA class. (Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1292-1293.)
In Massachusetts Mutual, the plaintiffs purchased life insurance policies, called “vanishing premium” policies, which allowed the plaintiffs to receive discretionary dividends which the insurance company issued over time. The insurance company’s sales agents represented to the plaintiffs and others that the principal amount of the accumulated premiums would become large enough so that the amount of the discretionary dividend would pay the annual premium due on the policy. (Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1286.)
The plaintiffs filed suit against the insurance company. The plaintiffs alleged that at the time they purchase the policies, the insurance company was paying a dividend rate which it had no intention of maintaining. The plaintiffs alleged that the insurance company failed to disclose to purchasers its own conclusions about its plans to lower the dividend rate over time. The trial court certified a class of 33,000 people who, over 15 years, purchased this particular type of insurance policy. The insurance company sought writ relief to challenge the trial court order. The court of appeal denied the writ and affirmed the order certifying the class. (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1286.)
In addressing the propriety of the order certifying the class, the Massachusetts Mutual court explained that “under the CLRA a consumer may recover actual damages, punitive damages and attorney fees. [Citation.] However, relief under the CLRA is limited to ‘[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice’ unlawful under the act. [Citation.] [¶] . . . [T]his limitation on relief requires that plaintiffs in a CLRA action show not only that a defendant’s conduct was deceptive but that the deception caused them harm.” (Massachusetts Mutua, supra, 97 Cal.App.4th at p. 1292, second italics added.)
In so holding that plaintiffs in CLRA actions must show that a defendant’s conduct was deceptive and that the deception caused them harm, the Massachusetts Mutual court recognized that plaintiffs must show reliance in order to obtain class certification. The court explained, however, that in cases in which the trial court finds material misrepresentations were made to class members, an inference of reliance can arise as to purported class members. (Massachusetts Mutual, supra, 97 Cal.App.4th at pp. 1292-1293.) The court stated: “[H]ere the record permits an inference of common reliance. Plaintiffs contend [the insurance company] failed to disclose its own concerns about the premiums it was paying and that those concerns would have been material to any reasonable person contemplating the purchase of [a vanishing premium policy]. If plaintiffs are successful in proving these facts, the purchases common to each class member would in turn be sufficient to give rise to the inference of common reliance on representations which were materially deficient.” (Id. at p. 1293.) The court further noted: “However, the information [the insurance company] provided to prospective purchasers appears to have been broadly disseminated. Given that dissemination, the trial court could have reasonably concluded that the ultimate question of whether the undisclosed information was material was a common question of fact suitable for treatment in a class action.” (Id. at p. 1294.)
Likewise in Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798 (Buckland), the court held that a plaintiff in a CLRA action must show causation and actual reliance. The court stated: “Under Civil Code section 1780, subdivision (a), CLRA actions may be bought [sic] only by a consumer ‘who suffers any damage as a result of the use or employment’ of a proscribed method, act, or practice. (Italics added.) ‘This language does not create an automatic award of statutory damages upon proof of an unlawful act. Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.’ [Citation.] Accordingly, ‘plaintiffs in a CLRA action [must] show not only that a defendant’s conduct was deceptive but that the deception caused them harm.’ [Citations.].” (Id. at p. 809.)
The Buckland court concluded that “plaintiffs asserting CLRA claims sounding in fraud must establish that they actually relied on the relevant representations or omissions.” (Buckland, supra, 155 Cal.App.4th at p. 810.)
In the present case, there are no facts showing common reliance or facts supporting an inference of class-wide reliance. Alan has not shown that the alleged concealment of the need to replace timing belts was material to any purported class member’s decision to purchase an Acura Integra. Nor has Alan shown that there was broad dissemination of the alleged concealment or that any class members were aware of the alleged concealment of the need to periodically replace timing belts.
Moreover, in Vasquez v. Superior Court (1971) 4 Cal.3d 800 (Vasquez), the Supreme Court squarely held that reliance or an inference of reliance is a necessary element of a consumer class action lawsuit. (Id. at p. 814.) In Vasquez, 37 named plaintiffs filed suit on behalf of persons who allegedly received fraudulent misrepresentations concerning installment contracts for the purchase of frozen food and freezers. (Id. at p. 805) The trial court sustained a demurrer on the ground that a class action for fraud could not be maintained by consumers. The plaintiffs filed a writ of mandate, which the California Supreme Court granted, thus reversing the trial court order. (Id. at p. 825.)
As for the element of reliance, the Vasquez court held: “The rule in this state and elsewhere is that it is not necessary to show reliance upon false representations by direct evidence. ‘The fact of reliance upon alleged false representations may be inferred from the circumstances attending the transaction which oftentimes afford much stronger and more satisfactory evidence of the inducement which prompted the party defrauded to enter into the contract than his direct testimony to the same effect.’ [Citations.]” (Vasquez, supra, 4 Cal.3d at p. 814.) The court further explained that reliance will be inferred only when the alleged misrepresentations concerned a material matter and subsequent action was taken. (Ibid.)
In Vasquez, the alleged misrepresentations were made by salespersons reciting a standard sales monologue contained in a training book and sales manual. (Vasquez, supra, 4 Cal.3d at p. 810.) Following the sales representations, the named plaintiffs and other purported members of the class executed installment contracts to purchase the frozen food and freezers. (Ibid.)
The Vasquez court held that in the context of that case, the plaintiffs presented facts creating an inference of reliance: “It is asserted by plaintiffs that they can demonstrate these representations were in fact made to each class member without individual testimony because the salesmen employed by Bay Area memorized a standard statement containing the representations (which in turn were based on a printed narrative and sales manual) and that this statement was recited by rote to every member of the class. The demurrers must be deemed to admit these facts. [Fn. omitted.] If plaintiffs can prove their allegations at the trial, an inference that the representations were made to each class member would arise, in which case it would be unnecessary to elicit the testimony of each plaintiff as to whether the representations were in fact made to him.” (Vasquez, supra, 4 Cal.3d at pp. 811 -812.)
Likewise, in Occidental, our Supreme Court held that reliance was a necessary element to maintain a consumer-based class action. (Occidental, supra, 18 Cal.3d at p. 363.) There, the Supreme Court affirmed the trial court order denying the defendant’s motion to decertify a class consisting of a group of approximately 155 homeowners in a planned development subdivision. (Id. at p. 358.) The plaintiffs alleged that a subdivision public report contained material misrepresentations about the subdivision, the maintenance of common areas and the fees to be assessed for such maintenance. (Id. at p. 359.) The plaintiffs alleged that they relied upon the written misrepresentations in purchasing the homes. (Ibid.)
The Occidental court found that the trial court did not err by concluding that justifiable reliance could be established on a common basis. The court explained that “an inference of reliance arises if a material false representation was made to persons whose acts thereafter were consistent with reliance upon the representation.” (Occidental, supra, 18 Cal.3d at p. 363.) The court explained: “If plaintiffs’ complaint had relied exclusively on the alleged oral misrepresentations of defendant to each homeowner, defendant’s challenge to the certification would be arguably meritorious. Unlike the circumstances in Vasquez, the present record reveals no standardized, rehearsed sales presentation made to prospective buyers. Nor does the complaint assert that a uniform oral presentation was made to each class member. Therefore, based on the information offered to the trial court, it can be contended that the oral representations alone are not susceptible to proof on a class basis.” (Id. at p. 361.)
The Occidental court explained, however, that reliance could be inferred based upon the subdivision public report which was filed with the state. The court explained that because the subdivision was built as a planned development, the developer was required to file a subdivision public report with the state. In addition, each purchaser was required to read the report and state in writing that he or she had read the report before purchasing the property. (Occidental, supra, 18 Cal.3d at p. 361.)
On this record, the trial court did not err by finding that Alan did not present facts showing that common issues predominated as to reliance, i.e., that purported class members actually relied to their detriment and purchased Acura Integras based upon Honda’s alleged concealment of the need to service timing belts. In addition, the record does not support an inference of reliance on a class wide basis. Alan has not shown that the alleged concealment of the need to service timing belts was material and would support an inference of class-wide reliance.
For example, Alan has not shown that the allegedly concealed fact about the need to service timing belts induced any class members to alter their position to their detriment such as purchasing an Acura Integra. Alan offered no evidence tending to show class members’ awareness of the alleged concealment of the need to service timing belts.
In addition, in Vasquez and Occidental, the plaintiffs were able to show justifiable reliance. In Vasquez and Occidental, the facts showed that the plaintiffs did not purchase the freezers (Vasquez) or the real property (Occidental) until after receiving the allegedly false statements. In this case, Alan has not shown that any purported class members were aware of Honda’s failure to make a timing belt service recommendation. In addition, Alan has not shown that any purported class members purchased their vehicles in reliance upon the allegedly concealed fact that timing belts need not be serviced.
Thus, determining why purported class members purchased their vehicles necessitates individual inquiry. In other words, it must be individually determined whether purported class members read or reviewed the owner’s manuals and whether they purchased their vehicles based upon the alleged concealment. In conclusion, Alan has not shown that the statements in the owner’s manual were material, which would support an inference of class-wide reliance. Nor has Alan shown that any other purported class members actually relied upon the alleged concealment.
This case is analogous to Caro, supra, 18 Cal.App.4th 644. There, the court of appeal affirmed a trial court order denying class certification on the basis that the plaintiff failed to show common reliance among class members. In Caro, the plaintiff filed a class action complaint for alleged violations of the CLRA. The complaint alleged that the defendants falsely represented various juice products to be “fresh orange juice, made from the heart of the orange, 100 percent pure orange juice, additive free, and from oranges picked and squeezed on the same day.” (Id. at p. 652.) As explained by the Caro court, however, in reality, the juice products were not fresh, but were reconstituted from frozen concentrate, contained additives, were made from the entire orange, and were not made from oranges picked and squeezed on the same day. (Ibid.)
In affirming the trial court order, the Caro court reasoned that plaintiff failed to show that class members relied upon the alleged misrepresentations. The court explained that the purported class members may have read the entire juice label, which stated the juice was from concentrate, which meant that class members may not have detrimentally relied upon the portion of the label read by plaintiff. (Caro, supra, 18 Cal.App.4th at p. 668.) In other words, the court concluded that determining why class members purchased the juice necessitated individual inquiry.
Analogous to the facts in Caro, Alan has not shown whether any putative class members received or read their owner’s manuals prior to purchasing the subject vehicles. Thus, determining why purported class members purchased their vehicles will necessitate individual inquiry.
Alan relies upon the case of Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582 (Kagan) for the proposition that he does not have to show reliance or facts supporting an inference of reliance in a CLRA class action. We reject this assertion. In Kagan, our Supreme Court stated: “We thus reject [the defendant’s] effort to equate pecuniary loss with the standing requirement that a consumer ‘suffer[] any damage.’ As it is unlawful to engage in any of the deceptive business practices enumerated in section 1770, consumers have a corresponding legal right not to be subjected thereto. Accordingly, we interpret broadly the requirement of section 1780 that a consumer ‘suffer[] any damage’ to include infringement of any legal right as defined by section 1770.” (Id. at p. 593.)
The above-quoted language from Kagan does not stand for the proposition that the Supreme Court obliterated the need to show detrimental reliance to maintain a CLRA class action. Instead, the Kagan court addressed whether the plaintiff, Kagan, suffered damage sufficient to serve as the class representative. The defendant bank did not charge the plaintiff the contested fee. (Kagan, supra, 35 Cal.3d at p. 593.) On that basis, the defendant bank asserted that the plaintiff suffered no damages and was thus not an adequate class representative. The Kagan court was concerned with the fact that it appeared that the defendant bank was attempting to pick off prospective class plaintiffs through the provision of individual remedies. (Id. at p. 593.)
In fact, in Kagan, the Supreme Court remanded the case to the trial court to exercise its discretion to determine “whether the remaining conditions for bringing a class action have been met.” (Kagan, supra, 35 Cal.3d at p. 595.)
Notably, in Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746 (Wilens), the court held that a class plaintiff must show damages and causation, and thus reliance. The court stated: “Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.” (Id. at p. 754.) Like Alan in the present case, the plaintiff in Wilens also asserted that based upon Kagan, the purported members of a CLRA class need to suffer actual damages. The Wilens court rejected this assertion also concluding that Kagan was addressing standing requirements,not what showing is necessary to obtain class certification.
In Wilens, the court explained: “Wilens cites Kagan v. Gibraltar Savings and Loan Assoc. (1984) 35 Cal.3d 582 [200 Cal.Rptr. 38, 676 P.2d 1060] in support of his assertion that a member of a CLRA class action need not suffer actual damage. But Kagan is inapposite. There, the plaintiff brought an action against a bank individually and as a representative of a class, alleging the bank violated the CLRA by falsely representing that customers would not be charged management fees in connection with individual retirement accounts. The plaintiff notified the bank that its alleged violations affected individuals other than herself and she intended to file suit if it did not rectify its violations. Shortly before the plaintiff filed the action, the bank notified the plaintiff it had not deducted the $15 management fee from her account and refunded the fee it had charged her husband. Subsequently, the bank asserted that the action lacked merit because the plaintiff had not suffered any damage as required by Civil Code section 1780. Noting that a prospective defendant should not be able to avert a class action by ‘picking off’ prospective plaintiffs one-by-one, the Supreme Court held the ‘exemption of the plaintiff from the imposition of the trustee fee does not render her unfit per se to represent the class.’ (Kagan v. Gibraltar Savings and Loan Assoc., supra, 35 Cal.3d at pp. 593, 595.) The bank had been put on notice that the alleged violations affected a class of consumers and it had failed to correct such violations as to all similarly situated consumers.” (Wilens, supra, 120 Cal.App.4th at p. 755, italics added.)
Moreover, the Wilens and Massachusetts Mutual courts relied upon the Supreme Court cases of Vasquez and Occidental for the proposition that a CLRA class plaintiff must show that purported class members relied upon the alleged misrepresentation or that the misrepresentation was sufficiently material to allow an inference of class-wide reliance. (Wilens, supra, 120 Cal.App.4th at p. 755; Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1293.) There is no indication in Kagan that the Supreme Court intended to overrule, disapprove, or reverse Vasquez and Occidental, which squarely held that detrimental reliance is a necessary element of a consumer class action lawsuit.
ii. Alan Failed to Present Facts Showing That Purported Class Members Suffered Damages
Alan also asserts that to obtain certification of a CLRA class, he does not have to show that purported class members suffered damages. We disagree. Suffering damage is a requirement under the plain language of Civil Code section 1780.
Moreover, as noted, in Wilens, supra, 120 Cal.App.4th 746, the court held that to obtain class certification, a class representative must show that purported class members suffered actual damages or that damages can be inferred based upon reliance upon a material misrepresentation. (Id. at pp. 754-755.)
Alan also relies upon Kagan, for the proposition that a CLRA plaintiff does not need to show a common element of actual damage. We reject this assertion. As noted above, the Kagan case dealt with standing, not the elements necessary to maintain a CLRA class action. (Kagan, supra, 35 Cal.3d at p. 593.)
As explained in Massachusetts Mutual, we will not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used; or (2) erroneous legal assumptions were made. (Massachusetts Mutual, supra, 97 Cal.App.4th at p. 1287.) In this case, we conclude that the trial court finding that Alan did not make a sufficient showing of class-wide damages is supported by substantial evidence and that the trial court did not use improper criteria or make erroneous legal assumptions.
As noted by the trial court, Alan’s exhibits failed to show commonality as to damages. Alan failed to present sufficient evidence that purported class members knew of the alleged service concealment or relied upon it and then suffered damages as a result of the reliance. Without awareness of the alleged concealment and a detrimental change of position because of the alleged concealment, there can be no injury. Thus, there are no facts showing a common injury.
In conclusion, the trial court finding that commonality does not exist with respect to damages is supported by substantial evidence.
DISPOSITION
The order is affirmed. Defendant Honda is awarded costs on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J
“4. Sub-Class No. 1 shall include Plaintiff . . . and each and every person eligible for membership in the Plaintiff Class who is a resident of the State of California. Members of Sub-Class No.1 may be members of other sub-classes defined herein.
“5. Sub-Class No. 2 shall include Plaintiff . . . and each and every person eligible for membership in the Plaintiff Class who ever incurred the expense, or on whose behalf such expense was ever incurred, of performing routine maintenance on a timing belt in any such Subject Vehicles. Members of Sub-Class No. 2 may be members of other sub-classes defined herein.
“6. Sub-Class No. 3 shall include Plaintiff . . . and each and every person eligible for membership in the Plaintiff Class whose timing belt broke while they owned any such Subject Vehicles (as that term is defined herein). Members of Sub-Class No. 3 may be members of other sub-classes defined herein.
“7. Sub-Class No. 4 shall include Plaintiff . . . and each and every person eligible for membership in the Sub-Class No. 1 of the Plaintiff Class who relied upon the Subject Misrepresentations, and/or who did not know the true facts hidden by the Subject Concealments (as ‘Subject Misrepresentations’ and ‘Subject Concealments’ are later defined herein). Members of Sub-Class No. 1 May be members of other sub-classes defined herein.”