Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Joan R. Burgess, Temporary Judge (Pursuant to Cal. Const., art, VI, § 21.), Super.Ct.No. RIC431726 .
Geller, Stewart & Foley, Michael S. Geller and Richard A. Stewart for Plaintiff and Appellant.
Manning, Leaver, Bruder & Berberich, Robert D. Daniels and Ashley B. Rahn for Defendant and Respondent.
OPINION
RAMIREZ, P.J.
Plaintiff Terry Anderson (Anderson) appeals from a judgment entered after the trial court sustained defendant Riverside Chrysler Jeep’s (RCJ) demurrer without leave to amend. Anderson claims that the trial court erred when it determined that the complaint did not plead damages sufficient to allege causes of action under Civil Code section 1750 et seq. (Consumer Legal Remedies Act (CLRA)) and Business and Professions Code section 17200 et seq. (the Unfair Competition Law (UCL).) We reverse the judgment.
Facts and Procedural History
On June 7, 2005, Anderson filed a complaint against RCJ alleging a cause of action for unfair business practices in violation of Business and Professions Code sections 17200 and 17500 and a cause of action for violation of the CLRA. Anderson alleged that she saw an advertisement in a newspaper for a specific vehicle. Interested in purchasing that type of vehicle, she called the dealership where an employee told her that the vehicle was for sale. (Notably, the allegations of fact do not specifically identify RCJ as the advertiser or as the dealership that was contacted.) Anderson then drove to the dealership to look at the vehicle with the intention of purchasing it. The vehicle was in the service department and had not been prepared for sale. Still, Anderson took it for a test drive and indicated she would return to purchase it the following day. When she returned she negotiated a final price with the salesperson who, after consulting with someone, told her that the vehicle was not for sale as it had not yet been through a safety inspection. Anderson asked to be notified when the vehicle was ready for sale. Four days later Anderson called the dealership and was told that the vehicle had been sold. However, the same vehicle was later advertised for sale. Anderson sought injunctive relief, attorney fees and costs of suit.
In response RCJ filed a demurrer based upon the claim that neither of Anderson’s causes of action contained facts sufficient to state a cause of action. Specifically, RCJ asserted that Anderson had failed to plead ultimate facts demonstrating that she suffered an injury in fact and lost money or property as a result of unfair competition by RCJ. It also asserted that Anderson failed to allege facts demonstrating damages under the CLRA and failed to allege facts demonstrating any specific violation of the CLRA.
On September 19, 2005, the trial court heard argument and, based upon Anderson’s representation that the complaint could not be amended, sustained the demurrer without leave to amend. Judgment was entered in favor of RCJ and this appeal followed.
Discussion
A. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, we give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. A trial court errs in sustaining a demurrer when the plaintiff has stated a cause of action under any possible legal theory, and abuses its discretion in sustaining a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 4-5 (Palm Springs Tennis Club).) Still, the burden is on the appellant to demonstrate the existence of reversible error. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.) Therefore we need only discuss whether a cause of action was stated under the theories raised on appeal. (Ibid.)
Further, “[w]hile a plaintiff need not request leave to amend in order to preserve on appeal the issue of whether the court abused its discretion in sustaining a demurrer without leave to amend (Code Civ. Proc., § 472c), on appeal the plaintiff does bear the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment. [Citation.] ‘“ . . . Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. . . .” [Citation.]’ [Citation.]” (Palm Springs Tennis Club, supra, 73 Cal.App.4th at pp. 7-8.) Anderson has made no attempt to demonstrate how she might amend her complaint to state a cause of action. Therefore, if we conclude that her complaint is not sufficient, we must conclude that the trial court did not abuse its discretion in sustaining the demurrer without leave to amend. (Ibid.)
B. Unfair Competition
Business and Professions Code sections 17204 and 17535 state that actions for injunctive relief as a result of unfair competition may be brought by any person “who has suffered an injury in fact and has lost money or property as a result” of such unfair competition. Thus, in order to have standing a plaintiff must plead facts supporting each of those three elements. (Aron v. U-Haul Co. of California (2006) 143 Cal.App.4th 796, 802 (Aron); R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 359-360.) At the time that this appeal was filed no published case by California state courts had yet directly addressed what was meant by the requirement that a plaintiff plead and prove the existence of an “injury in fact” and a “loss” of money or property in order to have standing under the recently amended version of Business and Professions Code sections 17204 and 17535. In determining what the phrases “injury in fact” and “lost money or property” are intended to mean, we are bound to take the statute as enacted and may not cause its meaning to conform to a presumed intent that is not expressed. (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 23 (Knight); Code Civ. Proc., § 1858.)
While this appeal was pending the Supreme Court determined that the changes to the UCL effected by Proposition 64 were applicable to cases pending when the changes went into effect. (Californians For Disability Rights v. Mervyn’s (2006) 39 Cal.4th 223, 227.) Appellant concedes that the statutes as cited above apply in this case.
While this appeal was pending, the Fourth District Court of Appeal, Division Three published a case directly that addressed the question what constitutes an “injury in fact” for standing purposes under the UCL. However, the California Supreme Court has granted review of that opinion. (Meyer v. Sprint Spectrum L.P. (2007) 150 Cal.App.4th 1136, review granted Aug. 15, 2007, No. S153846, 2007 Cal. LEXIS 8720.)
In prior cases requiring interpretation of new statutory language, the California Supreme Court has determined that an “examination of various dictionary definitions of a word will no doubt be useful” in determining its ordinary meaning, (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 649) so long as the court undertakes that examination from the viewpoint of the electorate in enacting a statute that contains the word. (See, Ibid.; Knight, supra, 128 Cal.App.4th at p. 23.) Injury is defined as “an act that damages, harms or hurts: . . . a violation of another’s rights for which the law allows an action to recover damages or specific property or both: an actionable wrong.” (Webster’s 3d New Internat. Dict. (1993) p. 1164.) To lose is to “suffer deprivation of.” (Id. at p. 1338.) Loss is the undesirable outcome of a risk; the disappearance or diminution in value, usu. in an unexpected or relatively unpredictable way.” (Black’s Law Dict. (8th ed. 2004) p. 963.)
In addition to these considerations, the California Supreme Court has, in other circumstances, recognized the federal rule for standing that requires an “injury in fact.” The federal courts define “injury in fact” as requiring a party to “‘prove by a preponderance of the evidence that it has suffered “an invasion of a legally protected interest that is [both] ‘(a) concrete and particularized, and (b) actual or imminent . . . .’”’ [Citation]” as opposed to conjectural or hypothetical. (People ex rel. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 986.) In her dissent in Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 591-592, Justice Brown likened “injury in fact” to the existence of some concrete harm as opposed to a common grievance shared by the public in general. This view of “injury in fact” has been implicitly adopted by at least one court in a recent opinion interpreting Business and Professions Code section 17200 et seq. (State of California ex rel Grayson v. Pacific Bell Telephone Co. (2006) 142 Cal.App.4th 741, 757-758.) It also comports with the definition of “injury in fact” contained in Black’s Law Dictionary, which refers to the Federal Rules of Civil Procedure as support. (Black’s Law Dict. (8th ed. 2004) p. 801.)
Finally, cases published since the most recent amendments to Business and Professions Code sections 17204 and 17535 have concluded, either directly or through implication, that in order to have standing under those sections a plaintiff must allege either (1) that money was expended by the plaintiff due to the defendant’s acts of unfair competition (Aron, supra, 143 Cal.App.4th at pp. 802-803; R & B Auto Center, Inc v. Farmers Group, Inc., supra, 140 Cal.App.4th at p. 360; Monarch Plumbing Co. v. Ranger Ins. Co. (E.D.Cal., Sept. 25, 2006, No. Civ. S-06-1357) 2006 U.S.Dist. Lexis 68850, [p. 20]; Witriol v. LexisNexis Group (N.D.Cal., Feb. 10, 2006, No. C05-02392) 2006 U.S.Dist. Lexis 26670, [pp. 18-19]; Southern Cal. Housing v. Los Feliz Towers Homeow. (C.D.Cal. 2005) 426 F.Supp.2d 1061, 1069 (Southern Cal. Housing); Laster v. T-Mobile USA, Inc. (S.D.Cal. 2005) 407 F.Supp.2d 1181, 1194), (2) that money or property was lost or suffered a diminution in value (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 716 (Overstock.com, Inc.); Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1240, 1262), or (3) that plaintiff was denied money to which plaintiff had a cognizable claim (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 269-270, 285, fn. 5; Filiti v. USAA Casualty Ins. Co. (E.D.Cal., June 20, 2007, No. Civ. S-06-2694) 2007 U.S.Dist. Lexis 44691, [p. 6]; Starr-Gordon v. Mass. Mut. Life Ins. Co. (E.D.Cal., Nov. 7, 2006, No. Civ. S-03-68) 2006 U.S.Dist. Lexis 83110, [pp. 1, 18-19]).
In the instant case, Anderson alleges that she lost money as a result of her lost leisure time and mileage and costs associated with driving to the dealership twice and therefore suffered injury in fact as a result of RCJ’s conduct. Contrary to RCJ’s assertions, these allegations are more than a mere conclusion that injury was suffered. The injury alleged is lost time and expenses associated with driving to the dealership to purchase a vehicle advertised for sale, that was not actually for sale, at least to Anderson.
In her reply brief Anderson blatantly misrepresents the facts by asserting that her complaint makes no reference to “leisure time.” On the contrary, the complaint specifically states, “[p]laintiff has lost money as a result of wasting her leisure time . . . .” Such misrepresentations are not well received by this court and counsel is cautioned that the conduct, if repeated, may result in sanctions. (Cal. Rules of Court, rule 8.276(e); Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 192-199.)
In Southern Cal. Housing, supra, 426 F.Supp.2d at p. 1069, the court found standing based upon allegations of loss of financial resources and diversion of staff time that could have been used in other ways had it not been for the defendant’s wrongful acts in violation of the UCL. Thus, lost time that could have been spent engaging in other pursuits may be sufficient to confer standing. However, unlike the Southern Cal. Housing Rights Center plaintiff, Anderson does not allege that she lost money as a result of her lost time. Rather, she alleges that her “leisure time” was wasted. Because she lost no money or property as a result of her lost time, that allegation is insufficient to provide standing to pursue her claims.
On the other hand, the loss of the cost of gasoline and accompanying wear and tear on her vehicle to drive to RCJ’s dealership twice in order to purchase a vehicle that was not for sale as advertised is a concrete and actual monetary loss. (Compare Aron, supra, 143 Cal.App.4th at pp. 802-803 where the loss sufficient to support standing under the UCL was the value of less than one tank full of gasoline and Overstock.com, Inc., supra, 151 Cal.App.4th at p. 716 where the loss was a diminution in value of assets and decline in market capitalization.) Anderson’s alleged loss is specific to her and does not pertain to the public in general, a fact that distinguishes her from the plaintiff in State of California ex rel Grayson v. Pacific Bell Telephone Co., supra, 142 Cal.App.4th 741 (judgment based upon a sustained demurrer without leave to amend upheld because plaintiff could not allege individual injury apart from that suffered by the public at large). While many members of the general public may have seen the advertisement, not all of them incurred the cost of traveling to the RCJ dealership to purchase the item that was allegedly not for sale. Therefore, we must conclude that Anderson has alleged both an injury in fact, and that she suffered a monetary loss as a result of RCJ’s allegedly false or misleading advertisement.
RCJ argues that the UCL allows a person to recover restitution, but not disgorgement of profits. (Bus. & Prof. Code, § 17203; Alch v. Superior Court (2004) 122 Cal.App.4th 339, 404-408.) It then concludes that because there was no transaction in this case that could result in an award for restitution in favor of Anderson, she has no damages and cannot maintain her action. RCJ misreads the statute. Business and Professions Code section 17203 provides that “[t]he court may make such orders . . . as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition . . . or as may be necessary to restore to any person in interest any money or property . . . which may have been acquired by means of such unfair competition.” (Italics added.) Thus, according to the plain language of the statute, a plaintiff may seek, and the court may issue, injunctive relief only. There is no requirement that restitution be sought as damages in order for an individual to have standing to pursue a claim under the UCL.
RCJ references Pfizer Inc. v. Superior Court (2006) 141 Cal.App.4th 290, review granted November 1, 2006, S145775, in support of its assertion that a transaction is necessary for standing under the UCL. However, while this appeal was pending the Supreme Court granted review in that case, which is therefore no longer citable. (Cal. Rules of Court, rules 976(d), 977(a).) In addition, in Branick v. Downey Savings & Loan Ass’n (2006) 39 Cal.4th 235, the Supreme Court determined that a plaintiff may amend the complaint to satisfy the standing requirements of Business and Professions Code sections 17204 and 17535. In so doing it stated “[p]laintiffs did not allege they had transacted business with defendant, paid fees to defendant, suffered injury in fact, or lost money or property as a result of defendant’s alleged practices.” (Branick, supra, at p. 239.) While technically not a correct statement since the statutes require that both injury in fact and loss of money or property be alleged (a fact which the court later recognized), the Supreme Court’s use of the disjunctive “or” indicates that a transaction with the defendant or the payment of fees to the defendant is not the sole way to allege “injury in fact” or loss of money or property.
We also disagree with RCJ’s interpretation of the case, which does not stand for the proposition cited.
In a final argument, RCJ asserts that damages consisting only of mileage and time are too remote to serve as the basis for standing under the UCL. For this proposition it cites Albion Lumber Co. v. Lowell (1912) 20 Cal.App. 782, 794. In Albion, the cross-complaint in a breach of contract action sought damages for two trips and necessary expenses for those trips that allegedly resulted from the plaintiff’s failure to perform the contract. (Id. at pp. 784, 786.) The court of appeal stated the rule regarding the measure of damages for breach of contract and concluded that the damages sought by the defendant “could not well have been contemplated by the parties when they entered into the contract. They were not proximate as proximate damages are above defined and we do not think they were such as would be likely to result in the ordinary course of things.” (Id. at p. 794.) The court then concluded that the damages claimed were too remote. (Ibid.) Even if the circumstances of the present case involved the issue of contract damages, which they do not, the measure stated in Albion would work in Anderson’s favor. Unlike in that case, it could well have been contemplated by the parties and would be likely to result from RCJ’s advertisement of a vehicle for sale that Anderson would make a trip to RCJ’s dealership for the purpose of purchasing the vehicle as advertised, especially considering her allegation that she phoned RCJ first to confirm the vehicle’s availability. Albion does not establish that Anderson’s claimed damages were too remote to provide her with standing to bring her action under the UCL.
C. The CLRA
Civil Code section 1770 lists 23 practices that are considered unfair methods of competition and unfair or deceptive actions and that are unlawful if “undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” (Civ. Code, § 1770.) Civil Code section 1780, subdivision (a) allows a person who has suffered “any damages” resulting from an act declared unlawful by Civil Code section 1770 to recover actual and punitive damages, to have an injunction and/or restitution, and to have any other relief deemed proper by the court.
RCJ’s demurrer to this cause of action was based upon the grounds both that Anderson had failed to allege damages, and that she had failed to plead facts necessary to support any violation of the six subdivisions of Civil Code section 1770 that she alleged. In challenging Anderson’s CLRA cause of action on the grounds of damages, RCJ simply referred to its arguments regarding damages in conjunction with the UCL cause of action. In other words, it simply argued that the allegations were conclusory, failed to include a transaction and were too remote. We have already concluded that the allegations were not mere conclusions and that the damages alleged are not too remote. Thus, we are left with the sole question whether, in order to plead a cause of action for violation of the CLRA a plaintiff must allege damages that resulted from a transaction.
In the first place, while the UCL allows only injunctive and restitutionary relief, the CLRA allows recovery of actual and punitive damages, as well as restitutionary and injunctive relief. Thus, RCJ’s argument that a transaction is necessary in order to obtain restitution fails with respect to disposing of the entire CLRA cause of action. Restitution is not the only available remedy.
Still, as indicated above, Civil Code section 1770 defines as unlawful, acts “undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Thus, it does appear that a transaction is required, though the actual sale or lease of goods is not. A transaction is defined as “an agreement between a consumer and any other person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.” (Civ. Code, § 1761, subd. (e).) Nevertheless, despite the somewhat inartful language in the statutes, it is clear that the CLRA provides remedies for practices that do not involve an “agreement,” between a consumer and another person, in the conventional sense. (Civ. Code, §§ 1761, subd. (d) [consumer is one who seeks or acquires goods or services], 1770, subds. (a)(8), (9), (10), (11), (18), (22) and 1780, subd. (a).) Hence, it was not necessary for Anderson to plead that she suffered damages as the result of the consummation of a transaction in order to state a cause of action for violation of the CLRA.
Despite this conclusion, Anderson has not demonstrated that the trial court erred when it sustained RCJ’s demurrer to the CLRA cause of action without leave to amend. Both the order and the judgment state that the demurrer was sustained “for failure to state facts to support a cause of action noted in [RCJ’s] Demurrer to Plaintiff’s Complaint: . . . Section VIII (pages 5-7, lines 9-18).” As noted above, Section VIII of RCJ’s demurrer was based upon both the absence of alleged damages and the failure to plead facts necessary to support any violation of the six subdivisions of Civil Code section 1770 that Anderson alleged. On appeal, Anderson has challenged the trial court’s ruling solely with respect to the issue of alleged damages. Having failed to challenge a separate and independent ground for the sustaining of the demurrer, Anderson has failed to meet her burden of demonstrating the existence of reversible error as to her second cause of action for violation of the CLRA. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 42 Cal.App.4th at p. 626.)
Disposition
Because Anderson has demonstrated that the trial court erred in sustaining the demurrer as to her first cause of action for violation of the UCL, the judgment is reversed as to that cause of action. As to the second cause of action for violation of the CLRA the judgment is affirmed. Anderson to recover her costs on appeal.
I concur: RICHLI, J.
HOLLENHORST, J., Dissenting.
While I agree with the majority that Anderson has not met her burden of demonstrating a reversible error as to her cause of action under the Consumer Legal Remedies Act (CLRA), Civil Code section 1750 et seq., I respectfully disagree that she has alleged an injury sufficient to confer standing under the Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq.
All further references are to the Business and Professions Code unless otherwise specified.
Whether Anderson has suffered damage sufficient to allow her to pursue her UCL claim depends on whether the money she lost as a result of her wasted leisure time and the costs associated with driving to and from defendant’s dealership qualifies as an “injury in fact” within the meaning of section 17204 of the UCL.
Before the passage of Proposition 64 (as enacted at Gen. Elec. Nov. 2, 2004), former section 17204 provided standing to “any person acting for the interests of itself, its members or the general public.” (Former § 17204.) The UCL did not require a private plaintiff to have personally suffered an ascertainable amount of injury before he or she could bring a claim. However, in the absence of any personal injury, a private plaintiff’s claims were necessarily limited to injunctive relief. Proposition 64 amended section 17204 to require that a private plaintiff establish that he or she has suffered an “injury in fact” and “lost money or property as a result of such unfair competition,” in order to assert a claim under the UCL. (Bus. & Prof. Code, § 17204.) An important purpose for this revision was to “prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.” (See Prop. 64, § 1, subd. (e) [“Findings and Declarations of Purpose”].)
Anderson alleges that she was damaged in the amount of her lost leisure time and the cost per mile, including gasoline and wear and tear on her vehicle, incurred while driving to defendant’s dealership. Concededly, the cost per mile and wear and tear on Anderson’s vehicle amount to a loss of money and property. However, even assuming Anderson did travel to defendant’s business because of the allegedly false advertisement, I find that the mere loss of money or property is not enough to establish standing. It is clear from the plain language of the statute that a private person has standing to sue under section 17204 only if that person has (1) suffered an “injury in fact,” and (2)lost money or property, as a result of such unfair competition. (§ 17204.) Since “courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22), Anderson cannot satisfy the standing requirement unless she can demonstrate that, in addition to losing money, she suffered an “injury in fact.” The damages alleged by Anderson do not rise to the level of an “injury in fact.” Therefore, her complaint does not allege damages sufficient to confer standing and she is not entitled to pursue her UCL claims.
Since the passage of Proposition 64, few cases have addressed what constitutes injury sufficient to confer standing, and no published case has definitively determined what is required to satisfy the “injury in fact” component of the standing requirement. As the majority points out, the California Supreme Court, in other circumstances, has recognized the federal rule for standing that also requires an “injury in fact.” The federal courts define “injury in fact” as requiring a party to “prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is [both] “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”’” (Associated Builders & and Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 362, italics added, citing Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville (1993) 508 U.S. 656, 663.) An “invasion” is “[a] hostile or forcible encroachment on the rights of another.” (See Black’s Law Dict. (8th ed. 2004) p. 843.)
The federal courts chose a strong word in crafting the “injury in fact” definition. Anderson simply drove to defendant’s dealership, engaged in brief interactions with a salesperson, and left without making a purchase. The advertisement in the newspaper to which Anderson responded was not invasive. Anderson chose to respond to the advertisement with no guarantee that in doing so, the vehicle would be sold to her. At no point in this series of voluntary choices were Anderson’s interests forcibly encroached upon by defendant. At best, Anderson may have experienced frustration when the vehicle was sold to another consumer. Under these circumstances, I cannot agree that Anderson’s alleged loss rises to the level of “invasion,” as contemplated by the federal courts in defining an “injury in fact.”
In reliance on Southern Cal. Housing v. Los Angeles Feliz Towers Homeow. (C.D.Cal. 2005) 426 F.Supp.2d 1061, 1069 (Southern Cal. Housing) (housing rights center lost financial resources and diverted staff time investigating case against defendants), the majority implies that had Anderson alleged that she lost money or property because of her lost personal time (as opposed to merely having wasted her “leisure” time), she would have had standing to pursue her UCL claims. The majority reads Southern Cal. Housing too broadly to support the assertion that lost time that could have been spent engaging in other pursuits may be sufficient to confer standing. Such a reading fails to distinguish the appreciable difference between an organization’s lost staff time and an individual’s diverted personal time. Whereas the loss of staff time can be measured in discrete, concrete units, attributing a monetary value to personal time involves conjecture. In finding that losses associated with diverted personal time are sufficient to confer standing, not only is the meaningful limit on the nature and extent of the damages necessary to satisfy the “injury in fact” requirement relinquished, so too is the maxim that the “law disregards trifles.” (Harris v. Time, Inc. (1987) 191 Cal.App.3d 449, 458-459 [holding that being forced to open junk mail is not a sufficient injury to sustain a suit for damages].)
The majority finds that Anderson’s loss of gasoline and wear and tear on her vehicle is an “injury in fact,” since it is specific to her and a direct result of the alleged unfair business practice. I agree that Anderson’s injury may be particularized in the sense that it is distinguished from the injury suffered by the general public. Anderson not only saw the advertisement, but she also incurred the cost of traveling to the store in response to it. However, I find that such a distinction merely characterizes the loss suffered and is not dispositive of the issue whether this loss was an “injury in fact.”
The majority cites to several cases which have been decided since Proposition 64 changed the language of section 17204 and which have concluded a plaintiff suffers an injury in fact for purposes of standing under the UCL when he or she has (1) expended money due to the defendant’s acts of unfair competition (Aron v. U-Haul Co. of California (2006) 143 Cal.App.4th 796, 802-803 (Aron) [plaintiff alleged he was required to purchase excess fuel when returning rental truck]; Monarch Plumbing Co. v. Ranger Ins. Co. (E.D.Cal. Sept. 23, 2006, No. Civ. S-06-1357) 2006 U.S.Dist. Lexis 68850, *20 (Monarch) [plaintiff alleged he paid higher insurance premiums because of defendant insurer’s settlement policies]; Witriol v. LexisNexis Group (N.D.Cal. Feb. 10, 2006, No. C05-02392) 2006 U.S.Dist. Lexis 26670, *18-19] [plaintiff incurred costs to monitor and repair damage to his credit caused by defendants’ unauthorized release of private information]; Southern Cal. Housing, supra,426 F.Supp. at p. 1069; Laster v. T-Mobile USA, Inc. (S.D.Cal. 2005) 407 F.Supp.2d 1181, 1194 (Laster) [defendants advertised cellular phones as free or substantially discounted when purchased with cellular telephone service, but plaintiffs were required to pay sales tax on the full retail value of the phones]); (2) lost money or property (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 716 [plaintiff alleged diminution in value of its assets and decline in its market capitalization and other vested interests]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1240, 1262 (Huntingdon) [plaintiff’s home and car were vandalized by animal rights protestors]); or (3) been denied money to which he or she has a cognizable claim (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 269-270, 285, fn.5 (Progressive West) [insurance company paid insured’s medical bills, then sued to recover that money when insured collected damages from the third party who caused his injuries; insured had standing to bring UCL claim against insurance company]; Filiti v. USAA Cas. Ins. Co. (E.D.Cal. June 19, 2007, No. Civ. S-06-2694) 2007 U.S.Dist. Lexis 44691, *6 [plaintiff alleged that she lost insurance benefits due under her policy which defendant failed to pay when it denied her claim in part]; Starr-Gordon v. Mass. Mut. Life Ins. Co. (E.D.Cal., Nov. 6, 2006, No. Civ.S-03-68) 2006 U.S.Dist. Lexis 83110, *1, *18-19] [plaintiff challenged the process by which defendant terminated her disability benefits]).
Unlike the plaintiffs in the foregoing cases, here, Anderson has not suffered any injury in fact. She has not been required to pay any money out of her own pocket (other than the cost of driving to the store), she has not lost money or property, and she has not been denied any money that she can allege is rightfully hers.
In reaching my decision, I have taken a basic approach of using the dictionary definitions of “injury,” “loss,” and “injury in fact.” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 649 [while not binding, dictionary definitions can be useful in an analysis].) An “injury” is “an act that damages, harms, or hurts . . . a violation of another’s rights for which the law allows an action to recover damages or specific property or both[;] an actionable wrong.” (Webster’s 3d New Internat. Dict. (1993) p. 1164.) An “injury in fact” is “[a]n actual or imminent invasion of a legally protected interest, in contrast to an invasion that is conjectural or hypothetical.” (Black’s Law Dict. (8th ed. 2004) p. 801.) To “lose” is “to suffer deprivation of.” (Webster’s 3d New Internat. Dict., supra, at p. 1338.) A “loss” is “[a]n undesirable outcome of a risk; the disappearance or diminution of value, usu. in an unexpected or relatively unpredictable way.” (Black’s Law Dict., supra, at p. 963.)
Anderson’s expenditures do not conform to these definitions. Instead, they represent expectancy costs incurred in the normal course of shopping for a desired product. Whether or not such costs are characterized as a “loss” of money and time, as opposed to money and time well spent, is contingent upon whether a consumer actually buys the product being sought. When a consumer enters a store in response to an advertisement, irrespective of whether the advertisement is misleading, there is no guarantee that the advertised product will be purchased. The fact that Anderson left defendant’s dealership empty handed is not a sufficient reason to translate the costs incurred while responding to an advertisement into actionable injuries. Moreover, Anderson’s costs were not expended in an “unexpected or relatively unpredictable way, as “loss” is defined in Black’s Law Dictionary, supra, at page 963.) Rather, they are contingent costs that any reasonable consumer expects to spend in the course of shopping for a product.
Notwithstanding the above, as the majority points out, money expended on gas has qualified as sufficient injury for purposes of standing in other contexts. (Aron, supra, 143 Cal.App.4th at pp. 802-803 [plaintiff alleged he was damaged in the amount of excess fuel he was required to purchase when returning the rental truck].) However, the Aron case is distinguished from Anderson because not only did the plaintiff in Aron suffer an ascertainable loss, but the defendant also gained an allegedly unfair benefit from the business practice. In Aron, the money the plaintiff spent on gas was paid directly to the defendant. In other words, U-Haul gained the excess gas the plaintiff was required to purchase in order to avoid a penalty pursuant to the terms of U-Haul’s rental contract. (Aron, supra,at p. 801.) The holding in Aron was not intended to suggest that nominal loss, such as a partial tank of gas, was enough in itself to confer standing. Rather, the minimal losses suffered by the plaintiff in Aron also represented a quantifiable sum owed by the defendant to the plaintiff.
Similarly, in cases decided since Proposition 64, irrespective of whether plaintiffs sought restitution or injunctive relief (the two available remedies under section 17203), plaintiffs have established an “injury in fact” when they alleged not only loss, but also that defendants had gained something from the act of unfair competition. (Laster, supra, 407 F.Supp.2d 1181, 1194 [in applying the UCL, the court found sufficient injury in fact alleged by plaintiffs who were required to pay sales tax on the full retail value of cellular phones that defendants advertised as free or substantially discounted when purchased with cellular service]; Monarch, supra, 2006 U.S.Dist. Lexis 68850, *1, *2 [UCL standing satisfied by plaintiff who alleged he paid higher insurance premiums because of defendant insurer’s settlement policies]; Progressive West, supra, 135 Cal.App.4th at pp. 284-285 [UCL standing satisfied by insured plaintiff who alleged that defendant asserted its rights to 100 percent recovery of all moneys it pays to its insureds regardless of whether that reimbursement should be denied altogether or partially due to the made-whole rule and the common fund doctrine].) These cases support the proposition that the value of Anderson’s standing claim should be measured by defendant’s gain and not simply by Anderson’s loss. Unlike the defendants in the foregoing cases, defendant in this case did not make any corresponding gain. In turn, although Anderson may have suffered the same type of loss as the plaintiff in Aron, supra, 143 Cal.App.4th 796, absent a showing of any corresponding gain on the part of defendant, her personal expenditures for gasoline are not sufficient to establish that she suffered an “injury in fact.”
The majority references Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 (Branick) to refute defendant’s argument that a transaction is necessary for standing. In that case, the plaintiffs were allowed to amend their complaint to satisfy the UCL standing requirements even though they had not initially alleged that they were personally injured by defendant’s unfair business practice. (Branick, supra, at. p. 239.) Although the majority conflates the California Supreme Court’s position in Branick, I agree that either a transaction with the defendant or the payment of fees to the defendant is not the sole way to allege an “injury in fact.” (Id. at pp. 241-242.) However, this determination does not preclude the possibility that in addition to a plaintiff’s loss, a gain by the defendant is required in order to sufficiently allege an “injury in fact.”
In Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 169 (Cortez), the plaintiff, a former employee of the defendant, sued under the UCL, alleging that the defendant violated the statute for failure to comply with overtime rules. The Supreme Court held that restitutionary relief was appropriate under the UCL even though the money defendant was required to restore was money it had not received from its victims. Rather, it was money the defendant was legally obligated to pay its victims but withheld. (Id. at pp. 177-178.) In light of this holding, a defendant can make an unfair gain, entitling a plaintiff to recover restitution under the statute, when neither has there been a consumer transaction nor has the defendant been given money by the plaintiff.
Given the UCL’s relaxed liability standards, were this court to read the standing requirements of section 17204 so liberally as to allow Anderson’s personal expenditures to qualify as an “injury in fact,” private plaintiffs could claim any negligible amount of loss to secure standing. Injuries such as the cost of cellular phone minutes used while calling to inquire about an advertised product or shoe tread lost while walking to a business would be sufficient. This result would render businesses completely vulnerable to frivolous private plaintiff suits by undercutting the very purpose of the Proposition 64 amendment. Clearly, in passing Proposition 64 and enacting changes to the standing rules in section 17204, the electorate intended to narrow the category of persons who could sue businesses under the UCL.
In order to effectuate the statute’s purpose, I conclude that a mere loss, monetary or otherwise, is not enough to confer standing. When a court orders restitution it orders the defendant to give up his gains to the claimant, as opposed to compensating the claimant for his or her loss. To satisfy the section 17204 “injury in fact” standing requirement, regardless of whether the relief sought is court-ordered restitution or an injunction, the loss suffered must be recoverable. Damages are not recoverable under the UCL (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148) and they should not be sufficient to confer standing. This requirement, without going so far as to imply a transaction is necessary, requires that there be at minimum an interaction between the parties in which not only a loss but a gain results.
Under this prescript, a private plaintiff could not seek injunctive relief unless he or she could also recover restitution. This is not to say a court is required to order both. Indeed, section 17203 gives the court discretion to make such orders or judgments as may be necessary to prevent unfair competition or to restore to any person in interest money or property that has been acquired by unfair business practices. The majority interprets the Legislature’s use of the word “or” in section 17203 to imply that there is no requirement that restitution be sought as damages in order for an individual to have UCL standing. I agree with the majority that the plain language of the statute does not impose such a requirement; however, simply because a private plaintiff is not required to seek restitution, does not mean that it is irrelevant whether or not she is able to do so.
Finally, this rule would not limit the regulation of false or misleading advertising only to circumstances when a consumer has actually been duped, and the business has gained by virtue of the customer’s purchase of the advertised product. As discussed earlier, a defendant can still make an unfair gain in the absence of a consumer transaction and without being given money by a plaintiff. (Cortez, supra, 23 Cal.4th at pp. 177-178.) This undesirable consequence would be further avoided because the rule is necessarily restricted to actions brought by private plaintiffs, who must satisfy the “injury in fact” requirement under section 17204. It does not impact the power of the Attorney General or any other authorized counsel under section 17204 to bring false advertising suits on behalf of consumers.
Accordingly, I find that Anderson failed to plead damages sufficient to allege causes of action under the UCL. In turn, Anderson has not demonstrated that the trial court erred when it sustained defendant’s demurrer to the UCL cause of action without leave to amend. The judgment should be affirmed.