Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YC060136. Michael P. Vicencia, Judge.
Tom McVeigh, in pro. per., for Plaintiff and Appellant.
Call & Jensen and Ward J. Lott for Defendant and Respondent.
FLIER, J.
Tom McVeigh appeals from the dismissal of his action following the superior court’s sustaining, without leave to amend, a demurrer to his complaint for violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL) and for preliminary and permanent injunctions. Appellant alleged respondent Burger King Corporation (Burger King) engaged in unfair competition by conducting a promotional sweepstakes game called “Transform Your Way.” Appellant asserts that the sweepstakes game constituted a prohibited banking game under Penal Code section 330 et seq. and a lottery under Penal Code section 319, and that the game pieces were slot machines or punchboards under Penal Code sections 330b and 330c. We disagree and therefore affirm.
All further statutory references are to the Penal Code unless otherwise noted.
FACTS
In June 2009, appellant went to a Burger King restaurant and asked an employee for a free sweepstakes game piece. Although the game piece prominently indicated that no purchase was necessary, appellant alleged he was told he could not receive a free chance for a prize unless he bought a value meal. Appellant purchased a value meal and removed a pull-tab game piece from the soda and french fry containers. The game piece required him to scratch off only one of two concealed areas or the game piece would be voided.
PROCEDURAL HISTORY
In July 2009, appellant filed a complaint against Burger King. Appellant asserted that Burger King had illegally conducted a lottery in violation of section 319, and it had distributed slot machines or punchboards in violation of section 330c. Burger King’s business acts or practices allegedly caused appellant and the public unspecified injury, as to which appellant claimed entitlement to relief.
Appellant alleged he wrote Burger King and demanded that it refrain from promoting its products with “illegal ‘punchboards’ and an illegal lottery.” Receiving no response to his demand, appellant filed this lawsuit seeking preliminary and permanent injunctions against a continuing violation of sections 330c and 319 and full restitution and disgorgement of all revenues, earnings, profits and benefits that Burger King has obtained from such allegedly unlawful business acts or practices.
Appellant attached as an exhibit to the complaint a copy of the Burger King game piece, which prominently stated: “NO PURCHASE NECESSARY.” Also appended to the complaint as an exhibit was appellant’s letter to Burger King, quoting the texts of sections 330c and 319 and demanding that Burger King “cease promoting [its] products with ‘pull-tab’ type sweepstake game pieces that inject chance at the time of play.”
Burger King filed a general demurrer to the complaint. It asserted that appellant lacked standing to bring a UCL claim and in any case failed to state any cause of action because he could show no injury in fact. Burger King asserted its game, like many other promotions that are offered in California on a daily basis, is a lawful promotional sweepstakes in which consumers have the opportunity to win prizes without having to pay any money in exchange for the opportunity to win.
The court sustained the demurrer without leave to amend, ruling that “the promotional activity alleged... was not subject to and/or not precluded by the statutory provisions cited by [appellant]... because the activity allegedly undertaken by [Burger King] did not constitute ‘illegal gaming’ or a ‘lottery’ as a matter of law.” The court entered an order of dismissal. This timely appeal ensued.
Burger King filed a motion in this court to augment the record with (1) its reply in support of the demurrer and (2) a request for judicial notice requesting the trial court take judicial notice of other lawsuits evidencing appellant’s extensive litigation history regarding the legal issues raised by the demurrer. We granted the motion to augment the record. Burger King further requested that this court take judicial notice of certain documents including those tendered to the trial court. We deferred ruling on Burger King’s request. Having reviewed the proffered documents, we now deny the request finding the documents irrelevant and unnecessary in resolving the material issues presented in this appeal. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) We note that the proffered “legible copy” of exhibit 1 to the complaint is not any more legible than the copy that already appears in the record and that the proffered “Official Rules of the Game” were neither attached nor referred to in the complaint. We further note that the sweepstakes game in issue here was not the subject of the other lawsuits referred to in the request for judicial notice.
STANDARD OF REVIEW
Our standard of review of an order of dismissal following the sustaining of a demurrer is well established. We treat the demurrer as admitting all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We give the complaint a reasonable interpretation, reading the complaint as a whole and its parts in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) On appeal from a dismissal after the sustaining of a demurrer, our sole task is to determine as a matter of law whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) When the trial court has sustained a demurrer without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank, supra, at p. 318.) The burden of proving a reasonable possibility of amendment rests squarely on the appellant. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Standing is an issue of law subject to our independent review. (Bilafer v. Bilafer (2008) 161 Cal.App.4th 363, 368.) So too is the interpretation of statutes. (Western Telcon, Inc. v. California State Lottery (1996) 13 Cal.4th 475, 488 (Western Telcon); Sutter’s Place, Inc. v. Kennedy (1999) 71 Cal.App.4th 674, 682; Sullivan v. Fox (1987) 189 Cal.App.3d 673, 682, fn. 4.)
DISCUSSION
Appellant contends the trial court erred as a matter of law in dismissing his complaint because the sweepstakes game is a “banking game” prohibited by section 330a or an illegal “lottery” under section 319, and the game pieces are forbidden “slot machines” or “punchboards” under sections 330b and 330c, thus constituting unfair competition prohibited by the UCL. Further, he asserts he was a proper plaintiff entitled to sue Burger King for unfair competition in distributing the sweepstakes game. We disagree.
1. No Underlying Violation of Statute
We conclude Burger King’s sweepstakes game did not amount to a banking game or lottery, nor was the game a forbidden slot machine or punchboard.
A. Banking Game
Section 330 et seq. forbids any banking or percentage game played with cards, dice, or any device for money or other representative of value. A banking game “pertains to situations where the house is actually involved in play, its status as the ultimate source and repository of funds dwarfing that of all other participants in the game.” (Sullivan v. Fox, supra, 189 Cal.App.3d at p. 679; id. at p. 678 [“the ‘house’ or ‘bank’ is a participant in the game, taking on all comers, paying all winners, and collecting from all losers”].) The statute seeks to control casino games, in which the house has an interest in the game, through acting as a banker or taking a percentage of the wagers. (Oliver v. County of Los Angeles (1998) 66 Cal.App.4th 1397, 1404-1405.) “In a banking game..., the banker ‘pays off all winning wagers and keeps all losing wagers.’ [Citation.] He is in fact a participant and, hence, ‘compete[s] with the other participants: “he is the one against the many.”’ [Citation.] He has an ‘interest in the outcome of the game, because the amount of money’ he ‘will have to pay out, ’ or be able to take in, ‘depends upon whether each of the individual bets is won or lost.’ [Citation.] The result is variable: the banker may either win or lose as to either some or all of the other participants. [Citation.]” (Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 593.)
Section 330 provides that “[e]very person who deals, plays, or carries on, opens, or causes to be opened, or who conducts... any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of those prohibited games, is guilty of a misdemeanor....”
Here, in the sweepstakes game, Burger King is not a participant in the game and has no interest in the outcome. The amount of money it will have to pay out or take in does not depend upon whether each individual “bet” is won or lost. Burger King has established the sweepstakes, and, although the sweepstakes game has value to Burger King as an advertising tool, it will not gain or lose the amounts at stake depending upon the number of persons participating in the game. Neither Burger King nor any other entity plays a role as a “bank, ” i.e., acting as “one against the many.” (See Huntington Park Club Corp. v. County of Los Angeles (1988) 206 Cal.App.3d 241, 249-250 [Pai Gow game, in which no “bank” is maintained or operated, held not to be a banking game].) Nor is there any potential for a banked game because there is no possibility for the “house, ” any other entity, other player or observer to maintain or operate a “bank” during the play of the game. (See Oliver v. County of Los Angeles, supra, 66 Cal.App.4th at p. 1408.)
B. Lottery
Appellant contends alternatively that if the sweepstakes game does not constitute a banking game, then the game should be deemed an illegal lottery in that consideration is necessary to play and there is no general or indiscriminate distribution of game pieces. We disagree.
For a promotion to constitute a lottery, the promotion must include three elements: (1) a prize, (2) distribution by chance, and (3) consideration. (Western Telcon, supra, 13 Cal.4th at p. 484.) The operator of a lottery does not bet against any of the participants but merely offers up a prize for distribution to one or more of them. (Id. at p. 488.) Unlike in a banking game, the operator has no interest in the outcome because neither the fact the prize will be disposed of, nor the value of the prize to be distributed, depends upon which or how many of the lottery contestants might win it. (Ibid.)
Section 319 defines a lottery as “any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it....”
California courts have consistently held that business promotions are not lotteries so long as tickets to enter are not conditioned upon a purchase. (California Gasoline Retailers v. Regal Petroleum Corp. (1958) 50 Cal.2d 844, 862 (Regal) [advertising and promotional giveaway not a lottery under § 319 because no valuable consideration given to receive ticket]; People v. Carpenter (1956) 141 Cal.App.2d 884, 888-890 [theater bank night drawing not a lottery in that anyone who asked for registration blank could receive one without buying ticket for admission]; People v. Cardas (1933) 137 Cal.App.Supp. 788, 791 [movie theater’s promotion in giving away steamship excursion tickets not a lottery as holders of winning tickets did not hazard anything of value for chance to receive prize]; see People v. Hecht (1931) 119 Cal.App.Supp. 778, 786-787 [suit club, in which members paid weekly fee for chance to receive free suit in weekly drawing, was lottery].) As the Supreme Court explained, “in order to constitute consideration within the definition of a lottery there must be a valuable consideration paid, or promised to be paid by the ticket holder.” (Regal, supra, at p. 862.)
In this case, Burger King employed a promotional scheme by using prize tickets in the sweepstakes game to increase purchases with no payment of consideration necessary to enter the game. Appellant alleges that he was told he had to purchase Burger King’s products to receive the game pieces. Yet the game piece itself, attached as exhibit 1 to the complaint, unconditionally states in two separate places in boldface type, “NO PURCHASE NECESSARY.”
Although the complaint here alleges that appellant was told he could not receive a free chance for a prize, the Burger King sweepstakes game piece that appellant attached as an exhibit to his complaint conspicuously stated that no purchase was necessary. It is well settled that if facts appearing in exhibits to a complaint contradict those alleged, the facts in the exhibits take precedence over any inconsistent or contrary allegations set out in the pleading. (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) In case of such a conflict, we look solely to the attached exhibit. (Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409 [“the contents of an incorporated document... will take precedence over and supercede any inconsistent or contrary allegations set out in the pleading”]; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“courts... will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents”]; see 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 397, p. 536 [“False allegations of fact, inconsistent with annexed documentary exhibits..., may be disregarded”], § 431, p. 564 [“recitals, if contrary to allegations in the pleading, will be given precedence, and the pleader’s inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded”].)
The cases on which appellant relies, People v. Shira (1976) 62 Cal.App.3d 442, 447 (Shira), Holmes v. Saunders (1952) 114 Cal.App.2d 389, 391 (Holmes), and People v. Gonzales (1944) 62 Cal.App.2d 274, 279 (Gonzales), are distinguishable. None of the games described in those cases included a legitimate means for a person to obtain a free entry.
In Shira, a fee was charged for each card to play the game “Ringo, ” and a free card was given only to persons who tossed a ring over a peg. Persons who won a game were required to toss another ring over a peg in order to receive a larger prize. (Shira, supra, 62 Cal.App.3d at pp. 446-447.) Only a small percentage of the participants were able to play for free, and most of the players had to pay in order to have a chance for the prize. (Id. at pp. 451-452.) In order for a promotional giveaway scheme to be legal, the court held, “any and all persons must be given a ticket free of charge and without any of them paying for the opportunity of a chance to win the prize. Conversely, a promotional scheme is illegal where any and all persons cannot participate in a chance for the prize and some of the participants who want a chance to win must pay for it.” (Id. at p. 459.)
Similarly, in Holmes, those wishing to participate in a newspaper’s drawing for a car had to pay $1 for a six-month subscription to the paper in order to obtain a numbered ticket for the drawing. (Holmes, supra, 114 Cal.App.2d at p. 391.) No free tickets were furnished without the purchase of a newspaper subscription. (Ibid.)
In Gonzales, tickets for a “cash night” were furnished only to customers, “customers” being defined as those who had paid for admission to a group of theaters that was holding the drawings. (Gonzales, supra, 62 Cal.App.2d at p. 279.) Thus, only persons who paid to participate could win the drawing.
Here, unlike in Shira, Holmes and Gonzales, the sweepstakes game gave any and all persons the opportunity to win, and, as clearly displayed on the game piece, no purchase was necessary to participate.
Appellant asserts there was no “general or indiscriminate” distribution of Burger King’s game pieces as required by Regal, supra, 50 Cal.2d at page 857, because the “no purchase necessary” option required a person to mail a hand-printed, self-addressed envelope to get a free game piece. Nothing in Regal, however, compels the sweepstakes holder to furnish a free game piece on the spot to a potential participant, nor does an inconsequential requirement such as furnishing a self-addressed envelope to receive a free game piece amount to the payment of “consideration.” (See Hotel Employees & Restaurant Employees Internat. Union v. Davis, supra, 21 Cal.4th at p. 592 [“‘Consideration’ is the fee (in the form of money or anything else of value) that a participant pays the operator for entrance”].) A momentary delay in receiving a sweepstakes game piece does not convert an otherwise legal game into an illegal lottery, so long as participation is not dependent on a purchase of merchandise or service and prize winning tickets are honored regardless of a purchase. (Regal, supra, at p. 857.)
C. Slot Machine or Punchboard
Appellant’s contention that Burger King’s sweepstakes game is a slot machine or punchboard is equally unmeritorious.
Section 330a makes it unlawful to possess or control a slot machine in this state, and section 330b, subdivision (d) expressly defines the devices that are considered to be slot machines. Section 330c further declares punchboards to be a type of slot machine within the meaning of section 330b.
Section 330b, subdivision (d) defines a slot machine or device as encompassing any “machine, apparatus or device that is adapted, or may readily be converted, for use in a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, the machine or device is caused to operate or may be operated, and by reason of any element of hazard or chance or of other outcome of operation unpredictable by him or her, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or additional chance or right to use the slot machine or device, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value, or which may be given in trade, irrespective of whether it may, apart from any element of hazard or chance or unpredictable outcome of such operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.”
Appellant asserts the court must use plain language to “‘“determine and effectuate”’” the Legislature’s intent, citing Van Horn v. Watson (2008) 45 Cal.4th 322, 326. Van Horn states: “To that end, our first task is to examine the words of the statute, giving them a commonsense meaning. [Citation.] If the language is clear and unambiguous, the inquiry ends. [Citation.] However, a statute’s language must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]” (Ibid.)
Appellant alleges that the sweepstakes game incorporated a “punchboard” as defined in section 330c. Specifically, it is alleged the game piece from the soda and french fry containers contained a “pull-tab, ” and each game piece required a participant to scratch off only one of two concealed areas. It is also alleged that if the participant scratched off both concealed areas he or she would have voided the game piece and not be allowed to collect a prize.
Section 330c declares a punchboard to be a “slot machine or device within the meaning of Section 330b....” (Italics added.) The statute further expressly defines a punchboard as “any card, board or other device which may be played or operated by pulling, pressing, punching out or otherwise removing any slip, tab, paper or other substance therefrom to disclose any concealed number, name or symbol. (§ 330c, italics added.) The sweepstakes game piece here contained a “pull-tab, ” and it contained symbols concealed by a substance. A participant was required to scratch off the substance in one of the two concealed areas to ascertain whether a prize was won. Viewed in isolation, the sweepstakes game piece would constitute a “punchboard” as defined in section 330c.
However, section 330c must be interpreted in harmony with the statutory scheme of which it is a part. Subdivision (d) of section 330b further defines “slot machine or device” as a “machine, apparatus, or device that is adapted, or may readily be converted, for use in a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, the machine or device is caused to operate or may be operated....” (Italics added.) By referring to the insertion of “money or coin or other object, ” subdivision (d) of section 330b makes clear that some valuable consideration must be given in exchange for the chance to operate the slot machine or device.
That concept is further supported by the language of section 330a, which makes a misdemeanor the possession of “any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked and hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner....” (Italics added; see Hotel Employees & Restaurant Employees Internat. Union v. Davis, supra, 21 Cal.4th at pp. 592-593.)
Requiring some valuable consideration to be given in exchange for the chance to play is also consistent with existing case law. Chapter 10 of title 9, part 1 of the Penal Code, which includes sections 330 through 337z, addresses gaming. The California Supreme Court has defined gaming as “‘“the playing of any game for stakes hazarded by the players.”’” (Western Telcon, supra, 13 Cal.4th at p. 484, italics added; see also Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1407; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 472; but see Trinkle v. Stroh (1997) 60 Cal.App.4th 771, 781 [lottery principles do not apply to slot machines but, assuming consideration is required element for illegal slot machines, plaintiffs seeking return of confiscated Match 5 jukebox and flipperless pinball machines failed to support their argument that free chances to operate jukebox to win prize were given away].)
The sweepstakes game piece in this instance is not an illegal “punchboard” or slot machine under these authorities, as no stakes were hazarded by the players. Customers and non-customers alike had the ability to participate in the sweepstakes without furnishing anything of value in consideration for the chance to play.
2. UCL
Appellant asserts he has standing to sue under the UCL, and he has stated a cause of action against Burger King under the UCL. We do not agree.
A. Standing
Under Business and Professions Code section 17204, a private party authorized to bring suit for a violation of the UCL is expressly defined as one “who has suffered injury in fact and has lost money or property” as a result of the unfair competition. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1006 (conc. opn. of Werdegar, J.); id. at p. 1005 [under Proposition 64, a plaintiff has standing to bring UCL action “only if the plaintiff has suffered ‘injury in fact’”].) In Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227, our Supreme Court determined that, pursuant to Business and Professions Code section 17204, a private person has standing to sue only if he or she (1) has suffered injury in fact and (2) has lost money or property as a result of unfair competition. Private parties are authorized to bring representative actions on behalf of others only if they both satisfy the definition of aggrieved person and comply with the requirements of Code of Civil Procedure section 382 governing class actions. (Arias v. Superior Court (2009) 46 Cal.4th 969, 977, 980; see Martinez v. Combs (2010) 49 Cal.4th 35, 48, fn. 10; Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390, 1401, fn. 9.)
The complaint in this case fails to show that appellant suffered any injury in fact or lost money or property in his dealings with Burger King. He did not allege the food he purchased was defective or unsatisfactory, priced higher than its value, or that he did not want the food. It may reasonably be inferred that appellant received the benefit of his bargain and suffered no loss. Even if appellant were to allege he failed to win a prize in the sweepstakes game, he would not have standing to bring a UCL claim based on that failure. Because it is assumed he gave nothing in value for the chance to participate in the game since no purchase was necessary in order to participate, he could suffer no injury from any failure to achieve a prize. Mere purchase of a product is not an “injury in fact” or “loss of money or property” under the UCL. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 816-818 (Buckland).)
As Buckland explained, “In approving Proposition 64, the voters declared their intention to ensure that ‘only’ public officials are authorized to undertake UCL actions on behalf of the general public, and amended the UCL to limit actions by individuals pursuing ‘representative claims or relief on behalf of others’ to class actions.” (Buckland, supra, 155 Cal.App.4th at p. 818.) The voters effectively determined individuals should not be encouraged to incur expenses for UCL actions in the public interest. (Buckland, at p. 818.) Accordingly, a plaintiff’s purchase of a product for purposes of litigation “cannot reasonably be viewed as ‘lost’ money or property under the standing requirement.” (Ibid.)
Other courts have similarly concluded that the mere purchase of a product or service without actual economic injury does not satisfy the UCL’s enhanced standing requirement under Proposition 64. (See Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1591 [purchasers of cell phone insurance from unlicensed seller failed to show actual economic injury in that they did not allege they could have bought the same insurance for lower price directly from insurer or from licensed agent; rather, they received benefit of bargain, “having obtained the bargained for insurance at the bargained for price”]; Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 114-115 [no UCL cause of action based on purchase of insurance policy sold by unlicensed insurer in absence of showing plaintiff did not want coverage, was given unsatisfactory service, had claim denied or paid more for coverage than it was worth because of unlicensed status]; Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 855 [customer who ordered book as a result of publisher’s allegedly misleading and deceitful tactics failed to show injury in fact notwithstanding he eventually paid for book; it was not alleged customer did not want book, it was unsatisfactory or it was worth less than amount paid].)
Appellant claims in his opening brief that his complaint alleges injury in fact because he “did not get what he wanted, the product was unsatisfactory, and the product was worth less than paid.” He also avows the meal with the attached game cost more than it otherwise would, because the game purportedly required Burger King “to expend money for the cost of the prizes, the illegal game pieces (punchboards) and the management of their illegal lottery.” Contrary to appellant’s assertions, none of these allegations are contained in the complaint. In his reply brief, appellant for the first time asserts he showed he suffered a loss of money by pleading he was “required to pay for and purchase a large size ‘value meal’ in order to participate in the [Burger King] promotion, ” and he was denied the ability to receive a coupon for free. Points raised for the first time in the reply brief need not be considered, unless good reason is shown for failure to present them before. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 790 [improper and unfair to raise new points on reply]; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.) In any case, these assertions are contradicted by the exhibit incorporated by the complaint, which, as we have discussed, established that no purchase was necessary to play the game and controls over allegations to the contrary.
In his complaint, appellant purports to seek relief on behalf of himself and “the public.” The complaint, however, does not even attempt to comply with any of the requirements of Code of Civil Procedure section 382 governing class actions. Appellant concedes the point by failing to address it at all. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
B. UCL Claim
To state a claim under the UCL, the plaintiff must plead and prove the defendant committed an “unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) Appellant’s UCL claim rests entirely on alleged violations of Penal Code sections 319, 330, 330b and 330c. Because we determine appellant failed to sufficiently show violations of those statutes as a matter of law, there is no basis for appellant’s UCL claim as a matter of law. The trial court therefore properly sustained the demurrer to the complaint.
Appellant has not shown how he might amend his complaint to plead injury in fact. In general, a party seeking to amend a complaint on appeal has the burden of “enumerat[ing] the facts and demonstrat[ing] how those facts establish a cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890; see also Buckland, supra, 155 Cal.App.4th at p. 814.)
DISPOSITION
The judgment is affirmed. Burger King is to recover costs on appeal.
We concur: BIGELOW, P. J., GRIMES, J.