Motion Summary Judgment

Cal. Super. - 6th Dist.August 28, 2017

Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/9/2018 5:35 PM Reviewed By: R. Tien Case #17CV315118 Envelope: 2159376 OOOONQCn-bwwr-I MMMNNDDMMHHHHHHHHHr-n OOflCfiO'l-DOONI-‘OKOOOflmm-mer-t C0 \lfifivl . , [H2021 Gary H. Prudian, Esq. SBN 246346 Robert D. Ebin, Esq. SBN 294637 Manning, Leaver, Bruder & Berberich LLP 801 S. Figueroa St., Suite 1150 Los Angeles, California 90017 Tel. (323) 937-4730 Fax (323) 937-6727 Attorneys for Defendant Bolea Motors, Inc. dba Gilroy Toyota SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALAN D. TRAVASSO, CASE NO. 17CV315118 Plaintiff, DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR vs. SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY BOLEA MOTORS, INC. dba GILROY ADJUDICATION; MEMORANDUM OF TOYOTA; FRANK BOLEA, POINTS AND AUTHORITIES Defendants. DATE: January 31, 2019 TIME: 9:00 a.m. PLACE: Department 19 [Filed concurrently with Separate Statement Qf Undisputed Facts, Declaration ofRobert D. Ebz’n; Requestfor Judicial Notice] TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, IF ANY: PLEASE TAKE NOTICE that 0n January 31, 2019 at 9:00 a.m. in Department 19 0fthe Santa Clara County Superior Court, located at 191 N. First Street, San Jose, CA 951 13, Defendant Bolea Motors, Inc. dba Gilroy Toyota (“Gih‘oy Toyota”) will move this Court for an order granting summary judgment in favor 0f Gilroy Toyota and against Plaintiff Alan Travasso. Alternatively, if for any reason summary judgment cannot be afforded, Gilroy Toyota requests that the Court grant Summary Adjudication on the following issues: 1. The undisputed facts establish that Plaintiff failed to provide the mandatory pre-Iitigation notice and opportunity for Gilroy Toyota t0 correct; W1- DEFENDANT BOLEA MOTORS. INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR 1N THE ALTERNATIVE SI IMMARV AD." VDIFATInNr VIEMORANDI lM OF POINTQ AND AUTHORITIES O‘OOOflCfiOT-POJMH MDDp-Ar-Ar-AHr-Ar-Ar-Ar-Ar-tr-l MHOKOOOVQO‘ILODNH 23 24 25 26 27 28 503i {r:I», . .187": 2. The undisputed facts establish that Plaintiffs claims regarding the RAV4 Contract are barred by the statute 0f limitations; 3. The Violation 0f CLRA claim has n0 merit as t0 the RAV4 Contract because the undisputed facts establish that the RAV4 Contract discloses the value of Plaintiff‘s trade-in vehicle; 4. Plaintiff’s claim regarding the Sienna Lease Contract fails because the undisputed facts establish that Plaintiff knew or should have known he was entering into a lease agreement; 5. Plaintiff‘s claims regarding misrepresentation 0f terms in the Sienna Lease Contract fail because the undisputed facts establish that all required disclosures were made; 6. Plaintiffs claim regarding the Sienna Sale Contract fails because the undisputed evidence establishes that the contract was for the purchase of a single vehicle-the Sienna; 7. Plaintiff’s CLRA claim has n0 merit because the undisputed evidence establish that Plaintiff was not damaged. This Motion is further based this Notice; the attached Memorandum of Points and Authorities; the concurrently filed Separate Statement of Undisputed Facts; Declaration of Robert D. Ebin; the Request for Judicial Notice; the pleadings, documents, and records on file with this Court; the oral argument presented at the hearing of this Motion; and on such other evidence as the Court deems fit. DATE: Novemberq , 2018 MANNING, LEAVER, BRUDER & BERBERICH, LLP MW oh RoliertuD. Ebin, Esq., Attorneys for Defendant Bolea Motors, Inc. dba Gilroy Toyota -2- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA‘S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE RHMMARV An.mnlr‘ATlnN: MFMnRANmIM m? PmNTQ ANn AHTI-mmTIITR OKCOOQO‘Ui-PQDMD-t r-Ir-Ir-IHHHH 001$me 17 18 19 20 21 22 23 24 25 26 27 28 00316841 .DOCX TABLE OF CONTENTS I. SUMMARY OF ARGUMENT .......................................................................... 1 II. STATEMENT OF FACTS ......................................................................... 1 III. PROCEDURAL HISTORY ........................................................................ 3 III. SUMMARY JUDGEMENT IS APPROPRIATE ............................................... 4 IV. EACH ALLEGED WRONGFUL ACT, WHETHER SEPARATELY PLEADED, CAN FORM THE BASIS OF A MOTION FOR SUMMARY ADJUDICATION .............. 4 IV. PLAINTIFF’S VIOLATION OF CLRA CLAIM AGAINST GILROY TOYOTA HAS NO MERIT ......................................................................................................... 5 A. Issue #1: The Undisputed Facts Establish That Plaintiff Failed t0 Provide the Mandatory Pre-Litigation Notice and Opportunity for Gilroy Toyota to Correct ......................... 6 i. Plaintiff is requesting damages under Civil Code § 1780 ........................... 6 ii. Plaintiff failed to provide the requisite notice under Civil Code § 1782(a) 6 iii. Plaintiff’s failure to provide notice frustrates the policy behind the CLRA. 7 B. Issue #2: The Undisputed Facts Establish That Plaintiff’s Claims Regarding the RAV4 Contract Are Barred by the Statute of Limitations .............................................. 8 C. Issue #3: The Violation of CLRA Claim Has No Merit as to the RAV4 Contract Because the Undisputed Facts Establish That the RAV4 Contract Discloses the Value of Plaintiff’s Trade-In Vehicle ..................................................................................... 9 D. Issue #4: Plaintiffs Claim Regarding the Sienna Lease Contract Fails Because the Undisputed Facts Establish that Plaintiff Knew or Should Have Known He Was Entering Into a Lease Agreement ............................................................................ 10 E. Issue #5: Plaintiff’s Claims Regarding Misrepresentation of Terms in the Sienna Lease Contract Fail Because the Undisputed Facts Establish That A11 Required Disclosures Were Made ................................................................................................... 1 1 i. Plaintiff’s claims regarding misrepresentation of “down payment figures” is refuted by the terms of the contract itself ........................................... 11 ii. Plaintiff’s factually devoid discovery responses show that he does not possess and cannot reasonably obtain evidence necessary to establish that Gilroy Toyota misrepresented “down payment figures” 0n the contract ................ 12 iii. The Sienna Lease Contract itself refutes Plaintiff‘s claim that Gilroy Toyota -3- DEFENDANT BOLEA MOTORS. INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE EUMMARV ADJIIDH‘ATIDN: MEMORAVDIIM an PnlNTQ AND AHTHORITIFR OOOONGCn-POJMI-I MMDI-tr-tr-tr-tr-tr-lr-Ir-Iv-II-I MHO©OOV®OW4>QJIOH [\J Q) 24 25 26 27 28 misrepresented the “discrepant/undisclosed obligated prior debt balances” on the contract ............................................................................ 12 iv. Plaintiff‘s factually devoid discovery responses show that he does not possess and cannot reasonably obtain evidence necessary t0 establish that Gilroy Toyota misrepresented “discrepant/undisclosed obligated prior debt balances” on the contract ........................................................................ 13 V. The Sienna Lease Contract itself refutes Plaintiffs claim that Gilroy Toyota misrepresented the “rental charges applied” 0n the contract .................. 13 F. Issue #6: Plaintiffs Claims Regarding the Sienna Sale Contract Fails Because the Undisputed Evidence Establishes That the Contract Was For the Purchase of a Single Vehicle - the Sienna ............................................................................... 14 G. Issue #7: Plaintiffs CLRA Claim Has N0 Merit Because The Undisputed Evidence Establishes That Plaintiff was not Damaged ..................................................... 15 V. CONCLUSION .................................................................................... 16 -4- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA'S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE SHMMARV An.mmrATmN- MITMnRANnHM mr PmNTS ANn AHTI-Iannm p-A OKOOOVOUI-bwm “w 1‘ L707] TABLE OF AUTHORITIES CASES Aguilar v. Atlantic Richfield C0. (2001) 25 Cal. 4th 826 ........................................... 4, 12 Benson v. Southern CaliforniaAuto Sales, Inc. (2015) 239 Cal. App. 4th 1198 ........................ 7, 8 Bower v. AT&TMobz'lity (201 1) 196 Cal. App. 4th 1545 ....................................................... 16 Casey v. Proctor (1963) 59 Cal. 2d 97 .......................................................................... 10, 15 Edward Fineman Co. v. Superior Court (1998) 66 Cal. App. 4th 1110 ............................ 5 Guido v. Koopman (1992) 1 Cal. App. 4th 837 .................................................................... 1 1 Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848 .......................... 4, 5 Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal. App. 4th 1042 ................................................................................................................... 10, 14 Massachusetts Mut. Life Ins. C0. v. Sup. Ct. (2002) 97 Cal. App. 4th 1282 .................................. 8 Masterson v. Sine (1968) 68 Cal. 2d 222 ...................................................................... 15 Matters v. Ralphs Grocery Co., 161 Cal. App. 4th 696 ..................................................... 10, 14 Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634 ........................................................ 8, 1 6 Mission Viejo Emergency Medical Associates v. Beta Healt‘hcare Group (201 1) 197 Cal. App. 4th 1146 ........................................................................................................................ 14 Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30 ................................ 6, 7, 8 Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394 .................................. 10 Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 580-81 .............................. 12 V(m Grabe v. Sprint PCS (SD. Cal. 2013) 213 F. Supp. 2d 1285 .............................................. 7 STATUTES Civil Code § 1770 ......................................................................................................... 7 Civil Code § 1780(a) ................................................................................................ 6,15 Civil Code § 1782(3) .................................................................................................. 6,7 Civil Code § 1783 ......................................................................................................... 8 -5- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYO’I‘A’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE RHMMARV AnJlInIrATmN: ermnnANnHM m? PmNTs ANn AUTHORITIES Civil Code § 1784 ......................................................................................................... 6p4 Code 0f Civil Procedure § 437c(b)(1) ............................................................................ 4 Code osz'vil Procedure § 4370(0) ................................................................................. 4 Code ofCivil Procedure § 437c(o)(1) .......................................................................... 12 Code ofCivz'l Procedure § 437c(o)(2) ..................................................................... 4 Code ofCivil Procedure § 437C (p)(2) ................................................................. 4 OKOWNONO'l-PCOM -6- 00316541.DOCX DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE SIIMMARV Anmmr‘ATmN: MFMflRANmIM nF pmNTs ANn AIITHanIES OKOOONOWCH-hCOIQF-A Nwr-‘I-‘r-lr-tI-lI-tr-tr-AHr-A r-IOKOOONOO‘l-bmwr-A 22 23 24 25 26 27 28 (10 «iévhql .DDCI\' MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENTS Plaintiff Alan Travasso’s (“Plaintiff’) claims arise out of three separate transactions with Bolea Motors, Inc. dba Gilroy Toyota (“Gilroy Toyota”) between August 2012 and February 201 6: o Plaintiff's purchase 0f a 2012 Toyota RAV4 0n August 25, 2012: Plaintiff claims that Gilroy Toyota misrepresented the value of his trade-in vehicle; o Plaintiff’s lease 0f a 2015 Toyota Sienna on November 5, 2015: Plaintiff again claims that Gilroy Toyota misrepresented the value 0f his trade-in vehicle, and also claims that the lease contract was misrepresented as a purchase contract; t Plaintiff’spurclmse of the aforementioned 2015 Toyota Sienna on February 12, 2016: Plaintiff claims that this purchase contract was misrepresented as a purchase contract for two separate vehicles - the 201 5 Sienna and a 2016 Scion IA vehicle. However, the undisputed evidence establishes that these claims lack merit. For starters, all of Plaintiffs claims about misrepresentation are belied by the clear and conspicuous disclosures in the respective written contracts. For example, trade-in values are properly disclosed, the nature of the agreement (purchase or lease), and the vehicles being sold/leased are plainly and obviously stated 0n the respective contracts. Additionally, Plaintiffs claims regarding the August 25, 2012 transaction are barred by the statute of limitations. Finally, Plaintiffs sole cause 0f action for violation 0fthe Consumers Legal Remedies Act (“CLRA”) necessarily fails as Plaintiff did not provide Gilroy Toyota with the mandatory pre-litigation notice required under the CLRA. Accordingly, the Court should grant summary judgment in favor of Gilroy Toyota, or in the alternative, summary adjudication. II. STATEMENT OF FACTS Plaintiffpurchased a 2012 Toyota RAV4 motor vehicle (the “RAV4”) from Gilroy Toyota on August 25, 2012 pursuant to the terms 0f a Retail Installment Sale Contract (“RAV4 Contract”). [SSUF# 1, 10, 15, 34]. The RAV4 Contract has an integration clause under the heading 0f “HOW -1- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SI IMMAnv Amllmr‘ATmN- ermnnANnnM mt PmNTS ANn AIITHanIm ._. OkomflmUl-boow 24 25 26 27 28 00 i1 nk-I] . MIC): THIS CONTRACT CAN BE CHANGED” stating that: “This contract contains the entire agreement between you [Plaintiffl and us [Gilroy Toyota] relating to this contract.” [SSUF# 1, 10, 15, 34]. As part of the transaction for the RAV4, Plaintiff traded in a 2011 Subaru Legacy motor vehicle. [SSUF# 16]. The RAV4 Contract states 0n line 6A that the agreed-upon value 0fthe 2011 Subaru Legacy trade-in was $16,000. [SSUF# 17]. The RAV4 Contract also states on line 6B that the lien balance for the 2011 Subaru Legacy was $22,850.70. [SSUF# 18]. In September 2012, Plaintiff received a Contract Correction Notice letter from Toyota Financial Services dated September 6, 201 2 regarding the RAV4 Contract. [SSUF# 11, 30, 37]. Thereafier, 0n November 5, 2015, Plaintiff leased a 201 5 Toyota Sienna motor vehicle (the “Sienna”) from Gilroy Toyota pursuant to the terms of a Motor Vehicle Closed-End Lease Agreement (the “Sienna Lease Contract”). [SSUF# 2, 22, 24, 35]. The Sienna Lease Contract is fully integrated (page 10 0f the Sienna Lease Contract under the heading “LEASE SIGNATURES AND NOTICES”), and at the top of each 0f the ten pages 0fthe Sienna Lease Contract appear the words “MOTOR VEHICLE CLOSED-END LEASE AGREEMENT.” [SSUF# 2, 22, 24, 35]. As part ofthis lease transaction, Plaintiff traded in the RAV4 vehicle. [SSUF# 25]. Section 2 on the first page of the Sienna Lease Contract indicates that the agreed upon value 0f the RAV4 was $12,000.00. [SSUF# 25]. Section 3 of the Sienna Lease Contract discloses that the amount due at lease signing was $1,500. [SSUF# 26]. Section 8 discloses the breakdown ofthe amount due at lease signing as: a. Net Trade-In Allowance $0.00; b. Rebates and Noncash Credits $1,000.00; c. Amount to Be Paid in Cash $500.00. [SSUF #26]. The Sienna Lease Contract also states under subsection f of Section 9 titled “Payment Determination” that Plaintiff was responsible for a “Rent Charge” of $6,016.20. [SSUF# 27]. Thereafter, on February 12, 2016, Plaintiff returned to Gilroy Toyota and agreed t0 purchase the Sienna outright pursuant to the terms of a Retail Installment Sale Contract (the “Sienna Sale Contract”). [SSUF# 3, 32, 36]. The Sienna Sale Contract discloses that Plaintiff was purchasing the Sienna for one lump sum payment of $40,492.00. [SSUF# 3, 32, 36]. The Sienna Sale Contract also has an integration clause under the heading of “HOW THIS CONTRACT CAN BE CHANGED”. -2. DEFENDANT BOLEA MOTORS. INC. dba GILROY TOYOTA'S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE QIVMMARV An.IIInIrATInN: MEMORANm M nr POINTS ANn ArTl-IORITIFQ GP? H OKOOOVOUI-PCOIQ 27 28 1684-1 . DOC}: [SSUF# 3, 32, 36]. Plaintiffprovided Gilroy Toyota with Check Number 510 dated February 12, 2016 made payable to “Gilroy Toyota” in the amount of $40,492. [S SUF# 33]. The check references “VAN PAYOFF” in the memo line in the bottom left corner. [SSUF# 33]. Plaintiff sent a letter dated June 6, 201 7 to Gilroy Toyota regarding the RAV4, the RAV4 Contract, the Sienna, the Sienna Lease Contract, and the Sienna Sale Contract. [SSUF# 4, 19, 28]. The letter does not make any reference to the CLRA. [SSUF# 4, 19, 28]. Thereafter, Plaintiff sent a letter dated July 11, 2017 to Gilroy Toyota regarding the RAV4, the RAV4 Contract, the Sienna, the Sienna Lease Contract, and the Sienna Sale Contract. [SSUF# 5, 20, 29]. The July 11 letter also does not make any reference t0 the CLRA. [SSUF# 5, 20, 29]. Thereafter, Plaintiff filed his original Complaint on August 28, 2017. [SSUF# 13]. He filed his First Amended Complaint (“FAC”) 0n 0r about February 2, 201 8. [SSUF #6]. III. PROCEDURAL HISTORY In his original, Judicial Council Form [PLD-C-OOI] Complaint filed 0n August 28, 2017, Plaintiff stated causes 0f action for “breach of contract - verbal,” “#37, other contractual dispute/contractual fraud,” and “general negligence” against Gilroy Toyota and Frank Bolea. [SSUF# 13]. Gilroy Toyota and Frank Bolea demurred to and moved to strike portions of the Complaint. The Court sustained the demurrer and granted the motion to strike on January 23, 201 8, providing Plaintiff ten days leave to file an amended complaint. Thereafter, Plaintiff filed the operative FAC 0n or about February 2, 2018 against Gilroy Toyota only. [SSUF# 6]. The FAC states an entirely new, and sole, cause of action for Violation 0f the Consumers Legal Remedies Act (“CLRA”) against Gilroy Toyota. Gilroy Toyota demurred t0 and moved t0 strike portions 0f the FAC. The Court overruled Gilroy Toyota’s demurrer to the FAC, but did strike Plaintiff s prayers for injunctive relief, civil penalties, and punitive damages. The Court again provided Plaintiff ten days leave to amend, but Plaintiff did not file an amended pleading. IV. SUMMARY JUDGMENT IS APPROPRIATE Motions for summary judgment “provide courts with a mechanism to cut through the parties’ pleadings in order t0 determine whether, despite, their allegations, trial is in fact necessary t0 resolve -3. DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE QIIMMARV AnJl'mPATInN: MMrlmzANm m m: POINTS ANn AUTHORITIES H OKOOONOWCn-bcom M‘fiu'H l .30 71-1 their dispute.” Aguilar v. Atlantic Richfield C0. (2001) 25 Cal. 4th 826, 843. Thus, summary judgment “shall be granted if all the papers submitted show that there is n0 triable issue as t0 any material fact and that the moving party is entitled t0 judgment as a matter 0f law. Code Civ. Proc. § 437c(c). The moving party faces the initial burden of persuasion that there is n0 triable issue of material fact and that it is entitled to judgment as a matter of law. See Aguilar, 25 Cal. 4th at 850. This burden may be met by way 0f “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters 0f which judicial notice shall or may be taken.” Code Civ. Proc. § 437c(b)(1 ). Once a defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. Id. § 43 7c(p)(2). The plaintiff cannot rely 0n the mere allegations in the pleading, but must “set forth the specific facts showing that a triable issue of material fact exists as to that . . . defense thereto.” Id. If the plaintiff fails to meet that burden with specific, admissible evidence, then summary judgment should be granted. See id. Gilroy Toyota asserts that it is entitled to summary judgment, or in the alternative summary adjudication as t0 Plaintiff s cause of action in Plaintiff’s operative FAC. In so moving, Gilroy Toyota presents its Separate Statement of Undisputed Facts, which evidences that Plaintiff has n0 material facts to support his cause of action against Gilroy Toyota in this lawsuit. IV. EACH ALLEGED WRONGFUL ACT, WHETHER SEPARATELY PLEADED, CAN FORM THE BASIS OF A MOTION FOR SUMMARY ADJUDICATION For purposes of summary adjudication, separate wrongful acts give rise to separate causes of action and the manner 0f pleading is not determinative. Lilienthal & Fowler v. Superior Court (1 993) 12 Cal. App. 4th 1848, 1854. This is consistent with Code ofCivil Procedure § 437C (0)(2) which states in essence that defense motions are proper where “one 0r more elements of the causes of action, even if‘not 5e )al'ulcl aleaclcd, cannot be established.” (emphasis added). In Liliemhal, although two claims were combined in the same cause of action pleaded in the complaint, the court treated them as separate causes 0f action for summary adjudication purposes _4_ DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE RI WIMARV Anlllnlr‘ATlnN: MFMORANDIWI 0F POINTS AND AUTHORITIES H OKOOONQUIAOOM since the two claims represented distinct obligations. As the Lilienthal court stated: “We conclude that the clearly articulated legislative intent 0f [Code of Civil Procedure] Section 437C, subdivision (f), is effectuated by applying the section in the manner which would provide for the determination on the merits of summary adjudication motions involving separate and distinct wrongful acts which are combined in the same cause of action. To rule otherwise would defeat the time and cost saving purposes 0f the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation 0r claim may be summarily defeated by summary adjudication. Accordingly, we hold that under subdivision (f) of section 437C, a party may present a motion for summary adjudication challenging a separate and distinct wrongful acts even though combined with other wrongful acts alleged in the same cause of action.” (emphasis added) 12 Cal. App. 4th 854-855. In Edward Fineman Co. v. Superior Court (1 998) 66 Cal. App. 4th 1110, the court held that even though the plaintiff alleged statutory violations by the defendant bank as to twenty-three (23) separate checks, and included them in each of its three causes of action, the defendant bank was entitled t0 have each check treated as a separate cause of action for purposes of summary adjudication. The court, citing and relying upon the Lilierzthal decision, stated “. . .just because [Plaintiff] has elected t0 aggregate its claims does not forestall [Defendant] from segregating them for purpose of assessing each check to determine if it is barred. . .” Id at 1116. Plaintiff s sole cause of action for Violation of the CLRA alleges multiple separate acts of wrongdoing against Gilroy Toyota related to the RAV4 Contract, the Sienna Lease Contract, and the Sienna Sale Contract. Based on the long-standing legal principle established in Lilienthal and Fineman, this motion for summary judgment, or in the alternative summary adjudication, addresses each individual alleged act of wrongdoing against Gilroy Toyota as a separate cause of action t0 be adjudicated, V. PLAINTIFF’S VIOLATION OF CLRA CLAIM AGAINST GILROY TOYOTA HAS NO MERIT A. Issue #1: The Undisputed Facts Establish That Plaintiff Failed t0 Provide the Mandatory Pre-Litigation Notice and Opportunity for Gilroy Toyota t0 Correct Plaintiff's cause of action for violation of the CLRA is procedurally defective because he -5- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE QIIMMARV An.mnIr‘ATmN- MitmnmwnHM m? PnINTR ANn AIITuanms H OKOOOflOWO‘l-bww 22 23 24 25 26 27 28 OC’J/l ()fllll . DOC}: failed to provide the mandatory pre-litigation notice and opportunity to correct in an attempt to circumvent the statute and deny Gilroy Toyota the opportunity to avail itself of its safe harbor provisions. As Plaintiff did not provide Gilroy Toyota with pre-litigation notice of the alleged violations under the CLRA or an opportunity to offer a correction under Civil Code § 1784, his CLRA claims are fatally defective. i. Plaintiff is requesting damages under Civil Code § 1780 Plaintiff seeks actual damages under Civil Code § 1780(a)(4), [SSUF# 7], thus the notice requirement 0f § 1782(a) is clearly implicated] ii. Plaintiff failed t0 provide the requisite notice under Civil Code § 1782(a) Plaintiff’s demand for actual damages required him to provide notice and an opportunity to correct under Civil Code § 1782(a). The statute requires that: Thirty days or more prior t0 the commencement 0f an action for damages pursuant t0 this title, the consumer shall do the following: (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 ofthe particular alleged Violations 0f Section 1770 . (2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged t0 be in Violation of Section 1770 . Civil Code § 1782(a)(1) and (2). Such notice “shall be in writing and shall be sent by certified or registered mail, return receipt requested to the place where the transaction occurred . . . .” Id. § 1782(a). Compliance with these notice requirements is necessary to state a CLRA claim for damages. See Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30. As articulated by the Court in Outboard Marine Corp: [t]he purpose 0f the notice requirement of section 1782 is to give the manufacturer 0r vendor sufficient notice of alleged defects to permit 1 Plaintiff also sought punitive/civil penalty damages under the CLRA in his FAC as well, but these requests were stricken from the FAC based 0n the Court’s ruling on Gilroy Toyota’s Motion to Strike portions of the FAC. -6- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA'S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE suMMAnv An.mmr‘ATmN- MEMORANmIM m? pnlNTs ANn AHTI-mnrrws p-n Okomflmm-bwm UOBiC‘PQl ‘ JUCX appropriate corrections or replacements. The notice requirement commences the running of certain time constraints upon the manufacturer 0r vendor within which to comply with the corrective provisions. The clear intent 0f the act is to provide and facilitate pre-complaint settlements 0f consumer actions wherever possible and to establish a limited period during which such settlement may be accomplished. This clear purpose may only be accomplished by a literal application of the notice provisions. Outboard Marine Corp, 52 Cal.App.3d at 40-41 [boldface added]. Plaintiff contends in his discovery responses that he fulfilled his statutory notice requirement by providing a June 6, 2017 and a July 11, 2017 letter. [SSUF# 8]. However, these letters d0 not conform to the notice requirements under § 1782(a) because neither 0f them notifies Gilroy Toyota 0f the “particular alleged Violations of Section 1770.” In Von Grabe v. Sprint PCS (SD. Cal. 2013) 213 F. Supp. 2d 1285, 1304, the California District Court found that the plaintiff failed to give proper notice under the CLRA. Prior to the lawsuit being filed, the plaintiff sent a letter to the defendant titled “Notice of Intent to File Lawsuit.” Id. However, the letter made no mention of § 1770. The court found that the plaintiff’s letter did not constitute proper notice under § 1770 because it failed to “identify the particular § 1770 Violations that the plaintiff is alleging and demand that the defendant correct those violations.” Id. Like the plaintiff‘s letter in Von Grabe, neither of Plaintiff s letters refers to any of the twenty-seven enumerated unfair methods of competition/unfair or deceptive acts 0r practices under § 1770, and in fact, neither letter makes any reference at all t0 the CLRA. [SSUF# 4, 5]. Accordingly, the undisputed evidence shows that Plaintiff failed t0 provide the mandatory pre- litigation notice required under Civil Code § 1782(a), and Plaintiff‘s CLRA claim necessarily fails. iii. Plaintiff’s failure t0 provide notice frustrates the policy behind the CLRA The legislature articulated two purposes behind the CLRA: 1) to protect the consumer; and 2) to provide efficient and economical procedures to secure such protection. Benson v. Southern CaliforniaAuzo Sales, Inc. (2015) 239 Cal. App. 4th 1198, 1212. It is neither efficient nor economical t0 engage in protracted litigation and t0 run up attorney fees when an appropriate correction could be offered at the outset. See id. The CLRA notice requirement was added early in the legislative process t0 ensure that “the consumer must give the merchant an opportunity t0 correct -7, DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE RHMMARV AD." lnlf‘ATlnN: MFMORANDHM an PnlNTR AND AUTHORITIFS O‘OOOQ0O‘1-BOJMH MMMMMMNMNr-‘HHHHHHHHH OOflCfiU‘l-POOIQI-‘OKOmNOCfl-wan-l Y‘AJ’SLLO‘] A . '_ his mistake.” Id. at 1206 citing (Assem. Com. on Judiciary, Explanation of Amendments to Assem. Bill No. 292, as amended (1970 Reg. Sess.) May 18, 1970.) In other words, “[t]he clear intent ofthe act is to provide and facilitate precomplaint settlements of consumer actions wherever possible and to establish a limited period during which such settlement may be accomplished.” Outboard Marine Corp, supra, 52 Cal. App. 3d at 40. The legislature intended for the notice requirement as a tool t0 broker early settlement and resolution between the consumer and the seller by giving the seller an opportunity t0 address the consumer’s concerns and/or rectify any wrongs all the while keeping attorney’s fees at a minimum. In the FAC, Plaintiff demands actual damages without providing Gilroy Toyota with the statutorily required notice and an opportunity t0 provide an appropriate correction outside the umbrella 0f litigation. In Benson, the court found specifically that if an appropriate correction was tendered in response to a consumer’s notice, then that consumer cannot maintain a CLRA action for damages, and that consumer’s attorney cannot collect any fees on such an action. Benson, (2015) 239 Cal. App. 4th at 1212. Plaintiffs actions go against the spirit of the law and are a clear attempt to prevent Gilroy Toyota from availing itself 0f the safe harbor provision of the CLRA, and to force Gilroy Toyota to engage in protracted and costly litigation. Such tactics should not be rewarded. B. Issue #2: The Undisputed Facts Establish That Plaintiff’s Claims Regarding the RAV4 Contract Are Barred by the Statute 0f Limitations Plaintiffs CLRA claim as to the RAV4 Contract is barred by the statute of limitations. “Any action brought under the specific provisions 0f [the CLRA] shall be commenced not more than three years from the date 0f the commission 0f such method, act, or practice.” Civil Code § 1783; Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634. The statute 0f limitations runs from the time a reasonable person would have discovered the basis for the claim. Massachusetts Mm. Life Ins. C0. v. Sup. Ct; (2002) 97 Cal. App. 4th 1282, 1295. Plaintiff’s FAC specifically states that Gilroy Toyota made misrepresentations 0n the face of the RAV4 Contract. [SSUF # 9]. In fact, Plaintiffs handwritten interlineations 0n the blown-up portion 0f the RAV4 Contract, attached as Exhibit C to his original Complaint, indicate that Plaintiff" s -3- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE RHMMARV An,“ rnlr‘ATmN- MRMIflnANnHM m? IwnlNTQ ANn AUTHORITIES (TU 3] {1 p-n O‘OOOflotfi-wa 27 28 [$4 l . [DOCK “disputed issues” with the contract occurred immediately at the time of execution, as Gilroy Toyota allegedly failed to credit Plaintiff his Subaru Legacy trade-in vehicle’s value as part of a down payment 0n RAV4 that Plaintiff purchased pursuant t0 the RAV4 Contract. [S SUF# 9]. In his discovery responses, Plaintiff references a September 6, 2012 Contract Correction Notice letter sent from Toyota Financial Services, the lienholder on the RAV4 Contract. [SSUF# 11]. Plaintiff claims in his discovery responses that the Correction Notice document “directly indicates errors and omissions were found within the 8-25-2102 [sic] RaV-4 contract . . . .” [SSUF# 12]. Based on Plaintiff’s allegations, Gilroy Toyota contends that the statute 0f limitations should have started running on August 25, 2012, the date of execution of the RAV4 Contract. [SSUF# 10]. However, based 0n the September 6, 201 2 Correction Notice, the latest date that the statute of limitations should have started running would have been 0n or about September 6, 2012, the date of the Correction Notice. Plaintiff did not file his original Complaint until August 28, 2017 [SSUF# 13], two years after the statute had already ran, and five years after the RAV4 Contract was executed. Accordingly, the undisputed evidence shows that Plaintiff s CLRA claim is time-barred as t0 the RAV4 Contract. C. Issue #3: The Violation 0f CLRA Claim Has No Merit as t0 the RAV4 Contract Because the Undisputed Facts Establish That the RAV4 Contract Discloses the Value 0f Plaintiff’s Trade-In Vehicle The undisputed evidence establishes that the RAV4 Contract disclosed the value 0f Plaintiff’s trade-in vehicle on the face 0f the integrated purchase contract. Plaintiff cannot dispute this undeniable fact, and as such the Court should grant Gilroy Toyota summary adjudication on this issue. In the FAC, Plaintiff makes the vague allegation that Gilroy Toyota misrepresented the terms of the RAV4 Contract. [SSUF# 14]. In discovery, Plaintiff produced self-serving letters from June 6 and July 11, 2017, clarifying that his misrepresentation claim stems from Gilroy Toyota purportedly incorrectly listing the agreed trade-in value of his Subaru Legacy trade-in vehicle on the RAV4 Contract as $0 rather than $16,000. [SSUF# 19, 20]. However, this claim is directly contradicted by -9- DEFENDANT BOLEA MOTORS. INC. dba GILROY TOYOTA'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE QHMMARV An.mnlr‘ATInM MFMhRANm IM m? PmNTQ ANn AIITI-Ianlm )_I OOOOVONO'l-wa 26 27 28 UL131084] ,LIOCI-I the fully integrated RAV4 Contract produced by Plaintiff in discovery, which shows on line 6A that the agreed tradc-in value of the 2011 Subaru Legacy vehicle as “(1.000. [SSUF# 17]. Plaintiff’s argument ignores the fact that the loan payoff on the trade-in vehicle, disclosed as $22,850.70 on Line 6B of the RAV4 Contract, greatly exceeded the agreed-upon trade-in value, resulting in negative equity on the RAV4 Contract. [SSUF# 18]. Accordingly, the undisputed evidence shows that Plaintiff’s CLRA claim fails as to the RAV4 Contract. D. Issue #4: Plaintiff’s Claim Regarding the Sienna Lease Contract Fails Because the Undisputed Facts Establish that Plaintiff Knew 0r Should Have Known He Was Entering Into a Lease Agreement Plaintiff claims in the FAC that Gilroy misrepresented that the November 5, 201 5 Sienna Lease Contract was a purchase contract rather than a lease. [SSUF # 21]. However, this claim is directly refuted by the lease agreement and documents produced by Plaintiff in discovery that clearly show that the agreement was a lease agreement and not a purchase agreement. Responsible consumers protect themselves by reading contracts before signing them. Like all contracting parties, consumers are legally required t0 do so. Casey v. Proctor (1963) 59 Cal. 2d 97, 104-105. “A party cannot avoid the terms of a contract on the ground that he or she failed t0 read it before signing. [Citations.]” Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal. App. 4th 1042, 1049; see also Metters v. Ralphs Grocery C0., 161 Cal. App. 4th 696, 701 [the “general rule” is that “one who signs an instrument which 0n its face is a contract is deemed t0 assent t0 all its terms”]. The California Supreme Court in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 423 expressly stated that “[o]ne party's misrepresentations as to the nature 0r character 0f the writing do not negate the other party‘s apparent manifestation 0f assent, if the second party had “reasonable opportunity to know 0f the character 01' essential terms 0f the proposed contract.” (Rest.2d Contracts, § 163.)” Rosenthal, 14 Cal. 4th at p. 423. Plaintiff does not allege anything of the sort. The words, “MOTOR VEHICLE CLOSED-END LEASE AGREEMENT” appear at the top -10- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE QIIMMARV An.mnlr‘ATmN: MIrMhnANmIM m: PmNTQ ANn AHTHanmS OQOOflOm-PQMH MMMNMr-tr-Ar-Ap-tr-AI-Ai-An-tr-AH LCDIOI-‘OkOOOflOCfl-hoowr-n 25 26 27 28 30316811 . DOC): of each of the ten pages of the Sienna Lease Contract produced by Plaintiff. [SSUF #22]. Plaintiff‘s signature appears no less than four times on the Sienna Lease Contract. [SSUF #22]. In fact, one of those signatures appears under both the heading “LEASE SIGNATURES AND NOTICES” on the tenth page of the lease and language specifically stating that “(1) You have read the entire Lease consisting often pages; (2) You agree to all of the provisions 0fthis Lease; (3) This is a lease . . . .” { SSUF #22]. Whether reliance was justified can be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. Guido v. Koopman (1992) 1 Cal. App. 4th 837, 843. Based 0n the Sienna Lease Contract itself, reasonable minds can come only to the conclusion that Plaintiff knew or reasonably should have known he was entering into a lease for the Sienna when signing the Sienna Lease Contract. Plaintiff cannot claim t0 be a novice car buyer based on the facts alleged in this suit. Furthermore, Plaintiff would have this Court believe that he thought he was buying the Sienna on November 5, 2015 but returned a mere three months later in February 2016 to actually purchase the Sienna, and then waited another 18 months before filing suit against Gilroy Toyota on this issue in August 201 7. This is simply not credible in light 0f the undisputed evidence. Accordingly, the undisputed evidence shows that Plaintiffs violation 0f the CLRA claim against Gilroy Toyota necessarily fails as Plaintiff does not possess and cannot reasonably obtain evidence necessary to establish it, and in fact produced evidence that completely refutes his claim. E. Issue #5: Plaintiff’s Claims Regarding Misrepresentation 0f Terms in the Sienna Lease Contract Fail Because the Undisputed Facts Establish That All Required Disclosures Were Made i. Plaintiff’s claims regarding misrepresentation 0f “down payment figures” is refuted by the terms of the contract itself In the FAC, Plaintiff makes the vague allegation that Gilroy Toyota misrepresented the “down payment figures” 0fthe November 5, 2015 lease contract. [SSUF# 23]. In Plaintiffs June 6 and July 11, 20 1 7 letters, he clarifies that his misrepresentation claim is based on Gilroy Toyota purportedly failing to include the agreed upon cash value of $12,000 for the RAV4, which he traded in as part of -11- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE SUMMARV AmrnIPATInN- MEMORANnHM m7 pmNTS ANn AIITHanmR }_- O©OOfl®UI$OOtO 2o 21 22 23 24 25 26 27 28 U(‘ELEUa l , DUCK the Sienna Lease Contract. [SSUF# 28, 29]. However, this claim is directly contradicted by the Sienna Lease Contract, which states on the first page that “The above Trade-in [the RAV4] has an agreed upon value of $12,000.” [SSUF #25]. Plaintiff again fails to account that the loan payoff for the RAV4 was greater than the agreed value of the vehicle, resulting in negative equity applied t0 the Sienna Lease. Accordingly, the undisputed evidence shows that Plaintiff s Violation of the CLRA claim against Gilroy Toyota necessarily fails. ii. Plaintiff’s factually devoid discovery responses show that he does not possess and cannot reasonably obtain evidence necessary t0 establish that Gilroy Toyota misrepresented “down payment figures” 0n the contract Plaintiff s discovery responses are factually devoid, and do not show that Gilroy Toyota misrepresented the “down payment figures” on the Sienna Lease Contract. A defendant moving for summary judgment need not negate an element 0f the plaintiff’s cause of action; rather, the defendant may simply point out that the plaintiff does not possess and cannot reasonably obtain evidence necessary to establish one or more elements 0f his claim. Code ofCivil Procedure § 437c(o)(1); Aguilar, supra, 25 Cal. 4th at 845, 853. This can be accomplished by showing that the plaintiff‘s discovery responses as to that claim or element are factually devoid. Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 580-81. In fact, Plaintiff was directly asked t0 provide documents t0 support this contention. In response, Plaintiff only references and produces the September 6, 2012 Contract Correction Notice letter sent from Toyota Financial Services as evidence of the purported misrepresentation. [SSUF# 30]. However, this Notice letter was written over three years prior to Plaintiff entering into the Sienna Lease Contract and does not reference 0r relate to the Sienna Lease Contract in any way. [SSUF# 30]. Accordingly, the undisputed evidence shows that Plaintiffs Violation of the CLRA claim against Gilroy Toyota necessarily fails. iii. The Sienna Lease Contract itself refutes Plaintiff’s claim that Gilroy Toyota misrepresented the “discrepant/undisclosed obligated prior debt balances” 0n the contract -12- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE .QIIMMARV Ami Inlr‘ATmNs MITMflnANnI M m? PnINTs ANn AI r-rnnm'rnrs l... OKOOOVOWO'l-DOOIO In the FAC, Plaintiff makes the vague allegation that Gilroy Toyota misrepresented the “discrepant/undisclosed obligated prior debt balances” of the Sienna Lease Contract. [SSUF# 23]. Through discovery, Plaintiff produced the self-serving June 6 and July 11, 2017 letters, which clarify that this misrepresentation claim is also based on Gilroy Toyota purportedly failing t0 include the agreed upon cash value of $12,000 for RAV4 on the Sienna Lease Contract. [SSUF# 28, 29]. However, as discussed above, this claim is directly contradicted by the Sienna Lease Contract itself produced by Plaintiff in discovery, which states 0n the first page that “The above Trade-in has an agreed upon value 0f $12,000.” [SSUF# 25]. Furthermore, the Sienna Lease Contract clearly discloses the amount due at lease signing by Plaintiff was $1,500, which was comprised 0f a $1,000 rebate/noncash credit, a $500 payment to be made in cash, and $0.00 as a net trade-in allowance for the RAV4. [SSUF# 26]. Accordingly, the undisputed evidence shows that Plaintiff s Violation 0f the CLRA claim against Gilroy Toyota necessarily fails. iv. Plaintiff’s factually devoid discovery responses show that he does not possess and cannot reasonably obtain evidence necessary t0 establish that Gilroy Toyota misrepresented “discrepant/undisclosed obligated prior debt balances” on the contract Again, Plaintiffs discovery responses are factually devoid, and do not show that Gilroy Toyota misrepresented the “discrepant/undisclosed obligated prior debt balances” on the Sienna Lease Contract. Plaintiff again was directly asked to provide documents to support this contention, and in response, Plaintiff again only references and produces the September 6, 2012 Contract Correction Notice. [SSUF #30]. As discussed, supra, the Correction Notice was created over three years prior to Plaintiff entering into the Sienna Lease Contract. Accordingly, the undisputed evidence shows that Plaintist violation of the CLRA claim against Gilroy Toyota necessarily fails. v. The Sienna Lease Contract itself refutes Plaintiff’s claim that Gilroy Toyota misrepresented the “rental charges applied” 0n the contract In the FAC, Plaintiff makes another vague allegation that Gilroy Toyota misrepresented the “rental charges applied” 0fthe Sienna Lease Contract. [SSUF# 23]. Plaintiff‘s discovery responses -13- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE SHMMARV An.mnlr‘Ame MFMORANmrM m? PnINTs um AUTHnRITlm W54: H OkOOOflO‘U‘l-POJIQ ‘Wocx clarifying that this purported misrepresentation stems from his previous claim that Gilroy Toyota misrepresented that Sienna Lease Contract was actually a contract for purchase of the Sienna by claiming that “purchases by nature of agreement d0 not include rental charges.” As discussed in greater detail, supra, this claim is directly refuted by the Sienna Lease Contract itself produced by Plaintiff, which on its face (and at the top 0f each 0f the ten pages) states that it is a motor vehicle closed-end lease agreement. [SSUF# 24]. In the June 6, 2017 letter, Plaintiff confirms that he leased the Sienna from Gilroy Toyota on November 5, 2015, and he eventually agreed to purchase it outright on February 12, 2016. [SSUF# 28, 29]. Moreover, the Sienna Lease Contract itself clearly states under Section 9(t) titled “Payment Determination” that Plaintiff was responsible for a “Rent Charge” of $6,016.20. [SSUF# 27]. Accordingly, the undisputed evidence shows that Plaintiff’s violation of the CLRA claim against Gilroy Toyota necessarily fails. F. Issue #6: Plaintiff’s Claim Regarding the Sienna Sale Contract Fails Because the Undisputed Evidence Establishes That the Contract Was For the Purchase 0f a Single Vehicle - the Sienna. Plaintiff contends in the FAC that Gilroy Toyota misrepresented the terms of the February 12, 2016 Sienna Sale Contract. [SSUF# 3 1]. Specifically, Plaintiff contends that the Sienna Sale Contract was also supposed t0 include the purchase of a 2016 Scion IA vehicle for a total payment 0f $40,492.00 for both vehicles. [SSUF# 31]. Not only is such a claim outlandish, but it is also wholly contradicted by the Sienna Sale Contract itself. Furthermore, the claim is refuted by documents produced by Plaintiff in discovery. As discussed above, parties are expected to read what they sign, especially for a major transaction such as an automobile. “A party cannot avoid the terms 0f a contract 0n the ground that she [0r he] failed to read it before signing. [Citations.]” Marin Storage & Trucking, Ina, supra, 89 Cal. App. 4th at 1049; see also Matters, supra, 161 Cal. App. 4th at 701. “Failing t0 read a [contract] is not sufficient reason t0 hold a clear and conspicuous . . . provision unenforceable. To hold otherwise would turn . . . contract . . . law 0n its head. Mission Viejo Emergency Medical Associates v. Bela Healthcare Group (201 1) 197 Cal. App. 4th 1146, 1156. Moreover, a seller is “not required -14- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SHMVIARV ADJUDICATION: MFMnRANnIIM 0F POINTQ AND AIITHORITIFR OkOOOflGU‘I-PQJIQH MNMMNMI-II-II-II-AI-AI-nn-In-Iv-Ir-I Ul-PCDIOI-‘OKOOOQOO'l-bwlofi-l 26 27 28 UU'Jl EE‘JJI l ,DOCI-I to sit beside [consumers] and force them t0 read (and ask if they understand) every provision in [a contract]. Nor are [consumers] permitted t0 accept the benefits under the [contract] while denying the existence 0f inconvenient terms.” Id. In fact, responsible consumers protect themselves by reading contracts before signing them, and like all contracting parties, consumers are legally required t0 d0 so. Casey, supra, 59 Cal. 2d at 104-05. When parties to a written contract have agreed to it as an integration, or a complete and final embodiment of the terms of the agreement, parol or extrinsic evidence cannot be used t0 add 0r vary the terms ofthe agreement. See Masterson v. Sine (1968) 68 Cal. 2d 222, 225. One can 100k to the written instrument itself t0 determine whether such is a complete integration of the agreement. Id. The Sienna Sale Contract clearly states 0n its face that it was only for the purchase 0f the Sienna in exchange for one lump sum payment 0f $40,492.00 from Plaintiff. [SSUF# 32]. The Sienna Sale Contract also contains an integration clause under the heading 0f “HOW THIS CONTRACT CAN BE CHANGED,” confirming that it was the entire agreement between the Plaintiff and Gilroy Toyota. [SSUF# 32]. In this connection, and further refuting Plaintiff s claim, Plaintiff produced a copy of a personal check issued by him to Gilroy Toyota 0n February 12, 2016 for $40,492, the full payment amount listed on the Sienna Sale Contract. [SSUF# 33]. The note section in the lower left corner indicates that the check was for “VAN PAYOFF.” [SSUF# 33]. That Plaintiff presented a check for the full payment amount stated 0n the Sienna Sale Contract, and that the check notes that it is for payment for the Sienna van wholly contradicts Plaintiff‘s claim. Accordingly, the undisputed evidence shows that Plaintiff s Violation of the CLRA claim against Gilroy Toyota necessarily fails. G. Issue #7: Plaintiff’s CLRA Claim Has N0 Merit Because The Undisputed Evidence Establishes That Plaintiffwas not Damaged It is undisputed that Plaintiff has suffered n0 damages as a result of the allegations in his FAC. Civil Code § 1780(a) states, in part: “Any consumer Wm suffers any dunmge as a rexulr ()f'the use 0r employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action” under the CLRA (emphasis added). “[I]n order t0 bring a CLRA action, not only -15- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE RIIMMARV Anjlmlr‘ATInN MITMORANnHM m? POINT: ANn AIrTHanlm H OOOONOWU-POJIO CL, u] 6F,» 1 . [1C)C" must a consumer be exposed to an unlawful practice, but some kind of damage must result.” Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634, 641. An “allegedly unlawful practice under the CLRA” must result “in some kind of tangible increased cost or burden to the consumer” in order t0 state a claim. Id. at 643; see also Bower v. AT&TMobility (201 1) 196 Cal. App. 4th 1545, 1556. Plaintiff admits that he did not sustain any damages as a result 0f his claims in the FAC. Plaintiff purchased and received possession ofthe RAV4 from Gilroy Toyota on August 25, 2012. [SSUF# 34]. He leased and received possession of the Sienna from Gilroy Toyota on November 5, 2015, and later purchased the Sienna on February 12, 2016. [SSUF# 35, 36]. In his responses to discovery, Plaintiff affirms that he does not attribute any personal injury damages, property damages, lost earnings damages, or other damages to his claims in the FAC. [SSUF# 38-41]. Plaintiff only produces the September 6, 2012 Contract Correction Notice letter sent from Toyota Financial Services as purported evidence of his damages. [SSUF# 37]. However, the Notice specifically states that the RAV4 Contract was corrected to show a lower monthly payment amount, a lower finance charge, a lower APR, and a lower total payment compared with the original RAV4 Contract. That Toyota changed the RAV4 Contract to provide Plaintiff with better finance terms simply does not constitute the type of real, cognizable “damage” that is required to state a claim under the CLRA. [SSUF#37} Based 0n these facts, it is undisputed that Plaintiff did not sustain any damages, and therefore Plaintiffs CLRA claim necessarily fails. VL CONCLU$ON Based on the foregoing, the undisputed facts show that Gilroy Toyota is entitled to summary judgment in this matter, 0r in the alternative, summary adjudication as to Plaintiff’s cause of action in the operative FAC. Accordingly, Gilroy Toyota respectfully requests that the Court enter summary judgment in its favor, 0r in the alternative, summary adjudication as to Plaintiff’s cause 0f action in the FAC. -16- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA‘S MOTION FOR SUMMARY JUDGMENT 0R IN THE ALTERNATIVE SUMMARV Anmnlrn'lnN- ermnnANnHM (w pmNTs ANn AIITHanIIrS P4 DATE: Novemberq , 2018 MANNING, LEAVER, BRUDER & BERBERICH, LLP B62: /(, fizz; Robert D. Ebin, Esq., Attorneys for Defendant Bolea Motors, Inc. dba Gilroy Toyota OOOOVO‘CH-POJD MMMHHr-Ir-Ir-tl-Ir-IHHr-t [\DHOKoooflGm-DCDMH l0 00 24 25 26 27 28 -17- UUSlLUJL,DJCX DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE QIIMMARV amnmr‘ATlnN: MltmnnAVnHM (w pnINTS ANn AUTHORITIES OKOOOVCF‘O’I-POOMr-t NNNNNIQIQMHHHHHI-Ii-IHn-Ip-n NONU'l-DOJIOHOKOOOflOm-P-OJIOH 28 00316841 .DOCI-C Proof 0f Service. I, the undersigned, declare and say as follows: I am 18 years of a g or oldgr, employed at the business noted above my signature which is in the county where any ma1 mg hereln stated occurred, and not a party t0 the w1thm actlon. 0n Novem berq ! 201 8 I caused 10 b_e served the document(s) listed below my signature under [he heading "Ducumenfls) Served" by lacmg a copy mf the dacumenfls) (or the onginal, ii’so noted below) in ludividual envelopes for euc 1 01 {fie games listed below my signature under the heading "Pagrties Served" (except for fax-pnly service), 21 dressed to them at their last known addresses in this actlon axuctly as shown (excepting parenthetlcal references to their ca acity), there being U.S. Mail delivery serwce 10 those addresses used for service by maii, and by sea mg sald envelopes, and 0n the same day, as marked with "X," by -- [XI placing each envalope for collection and X I e-mailing each pa ’e ol‘eqch document an_d prqccssing fpr mailing follqwing r_n firm’s t is roof 0f serxflce tot e pm'ugas served at thelr ordinary usmess practlce wnh wine l am last nown c-mml addresses as llsled behw from readily Familiar and under which 0n the. same day a computer located at my business address which StorrespodDQenfe isdgsu placed {err gmgllng i1 _ 11$ reported n0 errors. apostle 1n tla or 11.12113! course o" usmess w1t1 I I depositing each envelo e at a droj box m. ilhigass P0§fglmsfilfilw f: [11'] busmeSb addLESb' Offier facility i!) the City find $132116 ofmy usiness 5 5 p05 -‘= u y p1 p‘ ‘ H addrcss Wltinn the tune and pursuant t0 | _Ldepositing each enveloge intp the U.S._ mail procedures readily familiar to me necessary for Wlt lsl-class postage fuily prepz-ud 21: a mall box delivery [_] by Federal Ex ress 0n the morning 0r collection tacilit in the city and state of my 0f the next business day 01' rj] by courier 0n the business address. " arties Served” lists all parties same day. [use only ifovcrmg 11 orcouricr service and coqnsel servlecj in the within mal‘ter, and their authorized 01' as a supplenmlml resgctwe capacmes. [reqmred for tederal cases. inc uding bankruptcy. among others] é_ ] personal delivery by [_] travelling tp the address shown on the envelope and delivering it there urlng normal business hours or [_] handmg the documents to the person served. l declare under penalty of crjury under the Laws 0f the State of California and the United States that Lhe foregoing is true gm correct am; that this declaration was executed November? 201 8 at my business address. 801 S. Flguerua SL, SL111: 1 150, L05 ngeles, California 9001 7, in the ‘numy ofLos Angeles. . Al Document(s) Served (exact title) DEFENDANT BOLEA MOTORS, INC. dba GILROY TOYOTA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES Parties Served (exact envelope address) Alan D. Travasso 2651 Glenview Dr. Hollister, CA 95023 lhcll':-lvu.\‘w['umilv alumni 1 um} [Plaint'g'fi'in pro per] -18- DEFENDANT BOLEA MOTORS, INC. dba GILROY TOVOTA‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATWE SHMMARV ADJHDN‘ATION: MEMORANDUM 017 POIVTQ AND AUTHORITIES