Opinion
B225191
12-23-2011
JOHN DOE, Plaintiff and Appellant, v. PASSAGES MALIBU et al., Defendants and Respondents.
Schimmel & Parks, Alan I. Schimmel, and Michael W. Parks for Plaintiff and Appellant. Bonetati & Kincaid, Mark L. Kincaid, and Michelle C.L. Edborg for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC381775)
APPEAL from an order of the Superior Court of Los Angeles County, Richard E. Rico, Judge. Affirmed.
Schimmel & Parks, Alan I. Schimmel, and Michael W. Parks for Plaintiff and Appellant.
Bonetati & Kincaid, Mark L. Kincaid, and Michelle C.L. Edborg for Defendants and Respondents.
In this action for relief under the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA) and unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL), the trial court denied plaintiff "John Doe's" motion for class certification. In this appeal from the order of denial, we reject plaintiff's contentions and we affirm.
BACKGROUND
Plaintiff "John Doe" is a former client of defendant Grasshopper House, LLC, doing business as Passages Malibu (Passages), which is an alcohol and drug treatment center. Plaintiff sued Passages and other defendants after his admission was terminated early as a result of his allegedly violent threats against the owner of the facility. Plaintiff contends that of his $200,000 paid admission fee, he was wrongfully denied a refund of over $100,000 for the unused period of his stay. He also contends that defendants' use of the word "cure" in the advertising materials was both unlawful and misleading.
The other defendants are Grasshopper House Partners, LLC, Chris Prentiss, and Pax Prentiss.
According to plaintiff's deposition, he was told that he could return to Passages in 30 days. However, plaintiff did not appeal his involuntary discharge and did not return to Passages.
I. The Class as Originally Defined in the (Superseded) Second Amended Complaint
When the class certification motion was filed, the operative pleading was the second amended complaint (SAC). According to that pleading, the proposed class consisted of those clients who "were evicted and/or terminated from the program without restitution and/or return of their client balances held on account" (original class).
When plaintiff moved for class certification, however, he sought to certify both the original class and an enlarged class consisting of all clients who had paid for "the addiction cure services represented by Passages, from December 5, 2003 to the present (the 'Class Period')" (enlarged class).
In opposition to the class certification motion, defendants argued that the enlarged class greatly exceeded the scope of the original class as defined in the SAC. Defendants attributed the expansion of the class to the fact that only 11 clients had been involuntarily terminated without a refund. Accordingly, defendants argued, the original class did not qualify "for class certification due to a lack of numerosity viz., a class so large that joinder of all members is impracticable." Defendants urged that the motion be denied because "[t]he allegations in the SAC do not support the current motion for class certification which effectively seeks to include every Passages' client, past and present, irrespective of whether they completed the program or have successfully stopped using drugs and alcohol."
At the December 21, 2009 hearing on the class certification motion, the trial court continued the motion for plaintiff to file a third amended complaint (TAC) that would redefine the proposed class. The trial court also allowed both parties to file supplemental briefing concerning the effect of the revised definition of the class on the class certification motion.
II. The Class as Presently Defined in the Operative Complaint
On January 11, 2010, plaintiff filed the operative TAC, which alleged the existence of a revised class of former clients who had paid for "addiction 'cure' services" at Passages within four years of the original complaint. The TAC also alleged the existence of a subclass of "persons who, like Plaintiff, were involuntarily terminated and/or eliminated from the program without restitution and/or return of their client balances held on account."
According to the TAC, the revised class members' damages consisted of the admission fees paid to defendants. Allegedly, such damages are "typical . . . in that each purported class member paid admission fees. Moreover, fees were taken by defendants that were unearned and/or taken by defendants when defendants eliminated and/or terminated clients from the program based on an unconscionable 'no refund' contract. All purported class members are entitled to have their advanced payments fully refunded along with any fees and/or interest charged by defendants."
III. Plaintiff's Claims for Classwide Relief Under the CLRA and UCL
As noted by defendants in the respondents' brief, although the TAC requested class certification of claims personal to plaintiff (such as breach of contract, breach of fiduciary duty, negligence, and fraud in the inducement), the class certification motion was directed solely at the CLRA and UCL claims. The common premise of the CLRA and UCL claims was that Passages, as a nonmedical facility, is prohibited by law from advertising or providing addiction "cure" services, which plaintiff contends are medical services.
Plaintiff argued below that the CLRA and UCL claims were suitable for classwide treatment because the entire class had relied upon the same misrepresentations of addiction cure services. Plaintiff asserted that defendants are "not a licensed medical provider or drug manufacturer" and had fraudulently induced the class members to purchase a "bogus 'cure'" of drug addiction and alcoholism. Plaintiff contended that "[p]roof of defendants' unfair business practices and false and deceptive representations to consumers regarding their services is amenable to class treatment."
A. The CLRA Claim
The CLRA provides that "[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by [Civil Code] Section 1770 may bring an action against that person to recover or obtain" actual damages, an injunction, restitution, and punitive damages. (Civ. Code, § 1780, subd. (a).) In order for a plaintiff to recover under this provision, the plaintiff must have suffered damage as a result of the unlawful practice. (In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 129 (Vioxx).) The plaintiff must "'show not only that a defendant's conduct was deceptive but that the deception caused them harm.' (Massachusetts Mutual Life Ins. Co. v. Superior Court [(2002)] 97 Cal.App.4th [1282,] 1292.)" (Vioxx, supra, at p. 129.)
As previously discussed, the underlying theory is that Passages, as a nonmedical facility, violated the CLRA by providing or purporting to provide medical services to "cure" addiction. According to the TAC, defendants violated the CLRA by (1) misrepresenting that the services are of a particular standard, including "'providing medical services and/or providing a "cure" for substance abuse, when they are of another standard'" (citing Civ. Code, § 1770, subd. (a)(7)), and (2) engaging in false or deceptive advertising that Passages "'provides a "cure" for substance abuse, achieves "success" or "cure" rates that are inflated and/or false, provides and/or guarantees providing services, which Passages either fails to, is no[t] permitted to, or is not allowed to provide'" (citing Civ. Code, § 1770, subd. (a)(5)).
The CLRA proscribes unfair or deceptive practices in the sale or lease of goods or services, including: "Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another." (Civ. Code, § 1770, subd. (a)(7).)
The CLRA proscribes unfair or deceptive practices in the sale or lease of goods or services, including: "Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have." (Civ. Code, § 1770, subd. (a)(5).)
As damages for the alleged CLRA violations, the TAC requested not less than $1,000 per class member, restitution, and disgorgement of all property and money taken from each class member, an order enjoining defendants' use of the allegedly unconscionable admission agreement, including the false representation of a "cure," and punitive damages.
B. The UCL Claim
Based on identical conduct, the TAC alleged that defendants engaged in unfair business practices that violated the UCL. The UCL defines unfair competition to mean "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." (Bus. & Prof. Code, § 17200.)
"The statutory language referring to 'any unlawful, unfair or fraudulent' practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. 'Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent. "In other words, a practice is prohibited as 'unfair' or 'deceptive' even if not 'unlawful' and vice versa."' (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647, quoting State Farm Fire & Casualty Co. v. Superior Court [(1996)] 45 Cal.App.4th [1093,] 1102.)" (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)
As with the CLRA claim, the underlying theory of the UCL claim was that Passages, as a nonmedical facility, may not provide or offer to provide alleged medical services to "cure" addiction. The TAC alleged that defendants violated the UCL by falsely holding Passages out as a medical facility and falsely promising to provide a "cure" for addiction. Additionally, the TAC alleged that defendants violated the UCL by terminating clients who had signed "an unconscionable 'no refund' contract" and failing to provide them with restitution.
The TAC requested injunctive relief, declaratory relief, restitution on behalf of all clients "whose stays were terminated by defendants," and "disgorgement of all monies obtained by Defendants as a proximate result of their commission of such unfair business practices and the interest thereon from December 5, 2003, four years preceding the date this complaint was filed, to the date of judgment."
IV. Supplemental Briefing Concerning the Class Certification Motion
After the TAC was filed, both sides submitted supplemental briefing regarding the effect of the revised class definition on the pending class certification motion.
In his initial supplemental brief, plaintiff argued that regardless of the truth or falsity of defendants' representation of a cure for addiction, consumers were induced by that representation to purchase defendants' services. Plaintiff maintained that given the undeniable materiality of a promised cure "to a class of persons who suffer from addiction," the UCL and CLRA claims were amenable to classwide litigation. (See Vioxx, supra, 180 Cal.App.4th at p. 129 ["Causation, on a classwide basis, may be established by materiality. If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to the class. [Citation.] This is so because a representation is considered material if it induced the consumer to alter his position to his detriment. [Citation.]"].)
In their supplemental brief, defendants disagreed that the UCL and CLRA claims were suitable for classwide litigation. With regard to the CLRA claim, defendants submitted the contract that each client had signed and initialed upon admission to their facility. In particular, defendants pointed out that each client had initialed a paragraph (Acknowledgment), which stated that no guarantee of recovery had been made: "I acknowledge that no guarantee for my recovery has been made to me as a result of services provided to me, to include but not limited to, assessments, examination, therapy, treatment, tests or other procedures, while admitted to Passages." Defendants contended that because the Acknowledgment directly contradicted plaintiff's theory of classwide reliance on a promised cure for addiction, the CLRA claim was not suitable for class certification. (See Vioxx, supra, 180 Cal.App.4th at p. 129 ["[I]f the issue of materiality or reliance is a matter that would vary from consumer to consumer, the issue is not subject to common proof, and the action is properly not certified as a class action."].)
With regard to the UCL claim, defendants contended that under Code of Civil Procedure section 382 (section 382), the courts must "carefully weigh the respective benefits and burdens of a class action and . . . permit its maintenance only where substantial benefits will be accrued by both litigants and the courts alike. [Citations.]" (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1275.) Defendants pointed out that, "[i]n general, a class action is proper where it '"'provides small claimants with a method of obtaining redress'"' and '"when numerous parties suffer injury of insufficient size to warrant individual action."' [Citations.] . . . [¶] In deciding whether a class action would be superior to individual lawsuits, 'the court will usually consider [four factors]: [¶] [(1)] The interest of each member in controlling his or her own case personally; [¶] [(2)] The difficulties, if any, that are likely to be encountered in managing a class action; [¶] [(3)] The nature and extent of any litigation by individual class members already in progress involving the same controversy; [and] [¶] [(4)] The desirability of consolidating all claims in a single action before a single court.' [Citations.]" (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120-121.) Where the class action procedure is not superior to individualized litigation, "the lack of superiority provides an alternative ground to deny class certification" even if common questions of law or fact predominate. (Id. at p. 120.)
In support of its position that class litigation of the UCL claim was not superior to individual litigation, defendants argued that each class member's right to medical privacy would render the management of a class action difficult or even impossible. In addition, given that each class member had paid a substantial admission fee, defendants asserted that each class member's restitution claim will be sufficiently large to warrant litigation on an individual basis and will require individualized proof.
V. The Denial of the Class Certification Motion
The trial court denied the class certification motion on four grounds, stating in relevant part: (1) "Plaintiff's claims are not typical of the Class"; (2) "Plaintiff is not an adequate class representative"; (3) "Common questions of law or fact do not predominate"; and (4) "A class action would not be superior to individual lawsuits."
In making the above determinations, the trial court made several findings, including: (1) the absence of a common misrepresentation that had caused injury to the entire class; (2) the existence of a potential conflict between those class members who had read and attempted to negotiate the allegedly unconscionable contract and those, like plaintiff, who had not read or negotiated the contract; (3) the class definition is too broad because it "includes persons who never saw any of Defendants' advertisements and persons who were actually cured"; and (4) that "[c]ommon questions do not predominate between Plaintiff and the individuals of the overly broad class definition."
As to the UCL claim, the trial court additionally found that class litigation is not superior to individualized litigation. (§ 382.) It stated in relevant part: "Here the damages each individual class member has suffered is not an insufficient size to warrant individual cases, rather the amount is substantial; the price to stay at Passages is about $1,722 per day. [Internal record reference omitted.] Indeed a number of individuals have filed their own lawsuit against Passages. [Internal record reference omitted.] The number of the class is uncertain. Plaintiff attempting to certify this class after amending his complaint still has issues with commonality as the class definition is too broad. Plaintiff has failed to carry his burden on this ground as well."
DISCUSSION
In general, class certification is permitted "'when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .' [(§ 382.)] The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. (Lockheed [Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,] 1104 [(Lockheed)], citing Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913 (Washington Mutual).) The 'community of interest' requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Lockheed, supra, at p. 1104.)
"The certification question is 'essentially a procedural one that does not ask whether an action is legally or factually meritorious.' (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440 (Linder).) A trial court ruling on a certification motion determines 'whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' (Collins v. Rocha (1972) 7 Cal.3d 232, 238; accord, Lockheed, supra, 29 Cal.4th at pp. 1104-1105.)" (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)
"Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. . . . [I]n the absence of other error, a trial court ruling supported by substantial evidence generally will not be disturbed 'unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]' [citation]. Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal '"even though there may be substantial evidence to support the court's order."' [Citations.] Accordingly, we must examine the trial court's reasons for denying class certification. 'Any valid pertinent reason stated will be sufficient to uphold the order.' [Citation.]" (Linder, supra, 23 Cal.4th at pp. 435-436; accord, Lockheed, supra, 29 Cal.4th at p. 1106.)
I. Substantial Evidence Supports the Trial Court's Determination That Common Questions of Law or Fact Do Not Predominate
In moving for class certification, the plaintiff's burden "is not merely to show that some common issues exist, but, rather, to place substantial evidence in the record that common issues predominate. (Washington Mutual, supra, 24 Cal.4th at p. 913.)" (Lockheed, supra, 29 Cal.4th at p. 1108.)
Under the CLRA, the superior court "shall permit the suit to be maintained" as a class action if all of the enumerated conditions in Civil Code section 1781, subdivision (b) 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."
"[T]he CLRA allows recovery when a consumer 'suffers any damage as a result of the unlawful practice." (Vioxx, supra, 180 Cal.App.4th at p. 129.) In order to recover under the CLRA, causation or "actual reliance must be established for an award of damages." (Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 980 (Cohen).)
Under the UCL, injunctive relief or restitution is available on a classwide basis to those who were exposed to the allegedly wrongful business practice. (Cohen, supra, 178 Cal.App.4th at p. 980.) With respect to plaintiff's false advertising theory under the UCL, in order to establish commonality, plaintiff must show, at a minimum, that each class member was exposed to the allegedly false advertising. (Davis-Miller v. Automobile Club of Southern California (2011) 201 Cal.App.4th 106.)
In this case, the trial court found the class definition was too broad because it "includes persons who never saw any of Defendants' advertisements and persons who were actually cured." Plaintiff challenges this finding on appeal, which he contends is based on a misapplication of In re Tobacco II Cases (2009) 46 Cal.4th 298 (Tobacco II) and an erroneous presumption "that the class definition includes persons who never saw any of Passages' advertisements." Plaintiff contends that he is not required to "prove that each member actually saw Passages' website to certify a class."
Plaintiff's reliance on Tobacco II is misplaced. Tobacco II involved the issue of standing, which is not the same as the issue of commonality. (Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145, 158 ["We agree that Tobacco II did not dispense with the commonality requirement for class certification."].) "Standing, generally speaking, is a matter addressed to the trial court's jurisdiction because a plaintiff who lacks standing cannot state a valid cause of action. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361; McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 90.) Commonality, on the other hand, and in the context of the class certification issue, is a matter addressed to the practicalities and utilities of litigating a class action in the trial court. We see no language in Tobacco II that suggests to us that the Supreme Court intended our state's trial courts to dispatch with an examination of commonality when addressing a motion for class certification. On the contrary, the Supreme Court reiterated the requirements for maintenance of a class action, including (1) an ascertainable class and (2) a '"community of interests"' shared by the class members. (Tobacco II, supra, 46 Cal.4th at pp. 312-313.)" (Cohen, supra, 178 Cal.App.4th at p. 981.)
Even if we assume that the class, by definition, is comprised only of those persons who were exposed to the allegedly false advertising, plaintiff must show that the class members relied on the allegedly false advertising. In this case, the trial court found that reliance or causation could not be established on a classwide basis. For the reasons that follow, we conclude the finding is amply supported by the evidence.
Under both the CLRA and the fraud prong of the UCL, reliance or "[c]ausation, on a classwide basis, may be established by materiality. If the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to the class. ([Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292].) This is so because a representation is considered material if it induced the consumer to alter his position to his detriment. (Caro v. Proctor & Gamble Co. [(1993)] 18 Cal.App.4th [644,] 668.) That the defendant can establish a lack of causation as to a handful of class members does not necessarily render the issue of causation an individual, rather than a common, one. '"[P]laintiffs [may] satisfy their burden of showing causation as to each by showing materiality as to all."' (Massachusetts Mutual Life Ins. Co. v. Superior Court, supra, 97 Cal.App.4th at p. 1292.) In contrast, however, if the issue of materiality or reliance is a matter that would vary from consumer to consumer, the issue is not subject to common proof, and the action is properly not certified as a class action. (Caro v. Proctor & Gamble Co., supra, 18 Cal.App.4th at p. 668.)" (Vioxx, supra, 180 Cal.App.4th at p. 129.)
In this case, the trial court found that causation or reliance was not susceptible to classwide proof because, among other reasons, there was no evidence of a common misrepresentation that had caused injury to the entire class, and there was a potential conflict between those class members who had read and attempted to negotiate the allegedly unconscionable contract and those, like plaintiff, who had not read or negotiated the contract.
In reviewing this aspect of the trial court's ruling, we apply the substantial evidence standard of review. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 327.) "[I]n determining whether there is substantial evidence to support a trial court's certification order, we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. (See Lockheed, supra, at p. 1108 . . . .)" (Sav-On Drug Stores, Inc., supra, at p. 327.)
Plaintiff cites Bomersheim v. Los Angeles Gay and Lesbian Center (2010) 184 Cal.App.4th 1471 (Bomersheim) for the proposition that "[a]n inference of causation arises when a material event impacts an individual whose subsequent actions constitute a reasonable response. In the class context, where individuals are uniformly subjected to a material stimulus and thereafter uniformly act in a manner consistent with a reasonable response, a classwide inference is raised that the stimulus caused the response." (Id. at p. 1485.)
In Bomersheim, the prospective class consisted of those patients who had been given the wrong medication for syphilis and, after being "informed that the treatment may have been ineffective, [had] sought retreatment." (184 Cal.App.4th at p. 1485.) In reversing the order denying class certification, the appellate court stated that, under the circumstances, "[a] reasonable inference as to the entire class is that the initial mistreatment caused members to seek retreatment. Causation can therefore be presumed on common proof." (Ibid.) Although 200 individuals never returned for retreatment and many who returned had declined retreatment, their actions and motivations were deemed irrelevant because they were not members of the class. (Ibid.)
Plaintiff contends that because a promised cure of addiction is inherently material to consumers rendered vulnerable and susceptible by their addiction, the doctrine of classwide reliance applies to this case. Plaintiff states: "Where defendants target a particularly vulnerable or susceptible audience, such representations are measured by the impact [they are] likely to have on members of that group. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 214. In class action claims involving a particularly vulnerable proposed class of consumers, reliance will be presumed where the misrepresentation is material. . . . A misrepresentation is 'material' if a reasonable person would attach importance to its existence or nonexistence in deciding his or her course of action in the transaction in question. Id. at 327."
Plaintiff argues that common issues of law and fact are likely to arise with regard to defendants' common course of conduct. Plaintiff states that "[t]he uniform acts in common among the proposed class members are Passages' unlawful and deceptive representation of the cure for addiction and the reasonable response of consumers, like Doe, seeking the cure promised by Passages. Over 1,600 people, including Doe, purchased Passages' cure services. [Internal record reference omitted.] The proposed class is ascertainable from the admission contracts of those who purchased the addiction cure services Passages advertised."
Defendants, on the other hand, respond that "[t]he class-wide reliance doctrine is not available" in light of the "signed acknowledgment by each class member stating 'no guarantee for my recovery had been made to me.'" According to defendants, the "theory that each client was guaranteed a cure in advertisements is contrary to the written acknowledgment each client signed at the time of admission. The class-wide reliance doctrine is a procedural assumption used in class actions to provide standing to potential class members yet, here, those class members signed a conclusive statement admitting that no such guarantee had been made. Substantive law trumps procedural presumption rendering the class-wide reliance doctrine inapplicable here. . . . Without the ability to show class-wide reliance, [plaintiff] is left with proving individual reliance by each class member. This individual showing further defeats any claim that common issues of fact or law predominate."
In his reply brief, plaintiff addresses the Acknowledgment for the first time, which he contends was forfeited: "In an effort to dispute this clear evidence of reliance, Passages' brief at page 28 attempts to argue, for the first time on appeal, the merits of a term of 'acknowledgment' contained in fine print in boilerplate documents which Doe and all other admitted clients signed when checking in to Passages. This argument was never made before the trial court and is waived."
Plaintiff is mistaken. As we previously discussed, defendants cited the Acknowledgement in its supplemental opposition to the class certification motion. Defendants specifically argued below that, in light of each client's Acknowledgment that no guarantee of recovery had been made, the theory of classwide reliance was inapplicable: "Given the lack of proof of a class-wide misrepresentation and the express written acknowledgment by each Passages' client that 'no guarantee for my recovery has been made,' Plaintiff is not entitled to a class-wide presumption of reliance. Without that class-wide presumption of reliance, each Plaintiff is required to prove his actual reliance in order to recover damages under the CLRA making the claim inappropriate for class treatment." Accordingly, the doctrine of forfeiture does not apply.
Plaintiff alternatively argues in the reply brief that defendants' interpretation of the Acknowledgment is erroneous. However, "[w]e do not entertain issues raised for the first time in a reply brief, in the absence of a showing of good cause why such issues were not raised in the opening brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)" (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.) As there is no showing of good cause, we will not address the issue.
Given each client's signed Acknowledgment that no guarantee of recovery had been made, the enforceability of the Acknowledgment may vary from client to client. For example, plaintiff stated in his declaration that he did not read or understand the contract and was mentally and physically impaired when he signed it. This evidence reasonably supports a finding that plaintiff's claim is not typical and that a potential conflict exists between those potential class members who read and attempted to negotiate the contract and those, like plaintiff, who did not.
We conclude that the trial court reasonably determined that, based on the evidence, the issue of materiality or reliance was not subject to common proof. "[I]f the issue of materiality or reliance is a matter that would vary from consumer to consumer, the issue is not subject to common proof, and the action is properly not certified as a class action. [Citation.]" (Vioxx, supra, 180 Cal.App.4th at p. 129.)
In light of our conclusion that substantial evidence supports the trial court's determination that common questions of law or fact do not predominate, we affirm the order denying class certification of the CLRA claim and the fraud prong of the UCL claim. (See Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843-844 [order denying class certification will be affirmed on appeal "so long as any of the stated reasons are sufficient to justify the order"].)
II. The Trial Court Properly Denied Class Certification of the Entire UCL Claim on the Ground That Class Litigation Was Not Superior to Individual Litigation
Plaintiff contends that he is entitled to class certification of the unlawful prong of the UCL claim, which does not require a showing of reliance or proof of exposure to deceptive advertising. He further contends that the trial court did not discuss the unlawful prong of the UCL claim. We disagree; we conclude that by denying class certification on the ground that class litigation is not superior, the trial court necessarily denied class certification of all prongs of the UCL claim.
As previously discussed, in addition to its findings that each class member's restitution claim was of sufficient size to warrant individual litigation and that a number of individuals had filed their own lawsuits against Passages, the trial court found that the class definition was overly broad in that it included "persons who were actually cured." The inclusion of those "who were actually cured" is significant to the issue of restitution. Under the UCL, a proper measure of restitution is the difference between what the plaintiff paid and the value of what the plaintiff received. (Vioxx, supra, 180 Cal.App.4th at p. 131.) As to those class members "who were actually cured," the proper measure of restitution would be zero, as there would be no discrepancy between what was paid and the value of what was received. And as to those class members who were initially "cured" but later suffered a relapse, the proper measure of restitution would be the difference between what was paid and the value of what was received. Contrary to plaintiff's assertion, calculating each class member's restitution would not be a simple matter of awarding "a cost per day of $1,772.00." Accordingly, the trial court reasonably denied certification of a class that included those "who were actually cured" on the ground that, in order to fashion a restitution award, it would be necessary to litigate the degree of each class member's recovery (or lack thereof) from addiction.
We recognize that the premise of plaintiff's claim is that no one is ever "cured" of his or her addiction. However the term "cure" is defined, it was proper for the trial court to consider that there were persons who learned to live with their addiction and thus received what they bargained for.
--------
Plaintiff alternatively contends that the trial court erred in denying class certification of the unlawful prong of the UCL because the primary remedy under the UCL is injunctive relief. The problem with this contention, however, is that class certification is not a prerequisite for injunctive relief. Notwithstanding the denial of his class certification motion, plaintiff may still pursue a claim for injunctive relief under the UCL. (Akkerman v. Mecta Corp., Inc. (2007) 152 Cal.App.4th 1094, 1104 ["Plaintiffs who prove they have standing and a meritorious case may seek injunctive relief on behalf of the public by using 'the streamlined provisions of the UCL' without the need to certify a class."].)
III. The Record Does Not Support a Claim of Procedural Unfairness
Plaintiff contends that the procedure employed to determine his class certification motion was fundamentally unfair. The record does not support his assertion.
As previously discussed, the trial court continued the class certification motion in order to allow plaintiff to file a TAC to clarify the class definition and allegations in support of the UCL and CLRA claims. After the TAC was filed, the trial court allowed both parties to file supplemental briefs concerning the motion for class certification.
Plaintiff contends for the first time on appeal that he should have been allowed to file a new motion for class certification after the TAC was filed. He also contends that he was unfairly denied the opportunity to provide additional evidence of defendants' billboard "advertising 1-800-THE CURE." He argues that "[e]vidence of Passages' continuing effort to publicly advertise 'THE CURE' for substance abuse addiction would have benefitted class certification. It showed Passages' deliberate advertising and market effort about which [plaintiff] was complaining on behalf of himself and others who had purchased Passages' 'cure' services."
We conclude that the record fails to support plaintiff's claim of procedural unfairness. On the contrary, the trial court gave plaintiff multiple opportunities to explain why the UCL and CLRA claims of the TAC should be certified as a class action. In addition, the claim of evidentiary error is not persuasive. Any new evidence regarding "1-800-THE CURE" would not have altered the fact that because of the signed Acknowledgment that no guarantee of recovery had been made, common questions of law or fact do not predominate.
DISPOSITION
The order is affirmed. Defendants are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.