RACEWAY FORD CASES

Appellant’s Petition for Review

Cal.October 28, 2014

$222211 S. C. Case No. IN THE SUPREME COURT Or THE STATE OF CALIFORNIA CARL STONE,efal. /Pr (CRC 8.25(0" We SUPREME COURT Fil ery OCT 2 8 7014 Frank A. MoGuire Clerk Plaintiffs and Petitioners, Vv. RACEWAYFORD,INC. Defendant and Respondent. After Decision by the Court of Appeal Deputy Fourth Appellate District, Division Two (E054517, E056595) (Superior Court of Riverside County, Case No. JCCP 4476, Hon. Dallas Holmes(ret.)) PETITION FOR REVIEW Service on Attorney General and District Attorney Required (Bus. & Prof. Code §$ 17536.5) ROSNER, BARRY & BABBITT, LLP Hallen D. Rosner, SBN 109740 Christopher P. Barry, SBN 179308 Lacee B. Smith, SBN 284168 10085 Carroll Canyon Road, Ste. 100 San Diego, CA 92131 (858) 348-1005 Attorneys for Plaintiffs and Petitioners Carl Stone, ef al. S. C. Case No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CARL STONE,et al. Plaintiffs and Petitioners, Vv. RACEWAYFORD,INC. Defendant and Respondent. After Decision by the Court of Appeal Fourth Appellate District, Division Two (E054517, E056595) (Superior Court of Riverside County, Case No. JCCP 4476, Hon.Dallas Holmes(ret.)) PETITION FOR REVIEW Service on Attorney General and District Attorney Required (Bus. & Prof. Code § 17536.5) ROSNER, BARRY & BABBITT, LLP Hallen D. Rosner, SBN 109740 Christopher P. Barry, SBN 179308 Lacee B. Smith, SBN 284168 10085 Carroll Canyon Road, Ste.100 San Diego, CA 92131 (858) 348-1005 Attorneys for Plaintiffs and Petitioners Carl Stone,ef al. II. III. IV. TABLE OF CONTENTS Page ISSUES FOR REVIEW ....ccccccscscsscscscsssssscsesecssststsvecessevsvsvsussaeacseavaes 1 GROUNDSFOR REVIEW OF THIS OPINION uu... cceecesseseseeeeseess 3 A. Issue 1 — Fraudulent Fees......cccccccsssescssecsssescessseststscesteeees 4 B. Issue 2 — Backdating.........-seees seseeeeesevsaeeeacetaneeateessesssenseses 5 1, Whatis Backdating? seeeeeeseseceeuevssssnecsaeeeatenseseeesessesseeens 5 2. The Opinion Should be Reviewed ..........ccccceeeeeeee 6 RELEVANT FACUTAL AND PROCEDURALHISTORY........... 8 A. Relevant Facts and Background..........ccccccsecsscessesesesssrseseesees 8 1. Issue 1 — Fraudulent Fees.........cccccscessesssesesesseeeees 8 2. Issue 2 — Backdating of Contracts ...........ccccceceeeeee 8 B. Relevant Procedural History ..........ccccccccsssssscsssessesesessscseseees 8 lL, Proceedings in the Trial Court..........ccccesscssesseeeeees 8 2. The Court of Appeal’s Opinion ..........ccceseeeeee 10 a. Issue 1 — Fraudulent Fees 00.0... ccceeeeees 10 b. Issue 2 — Backdating ............ccecceccsesssssseeeeeees 1] DISCUSSION oooccccseeeeeesessessesesesecesseesecsssesscssssesesseevaravaseeers 11 A. Smog-Related Fees ....c.cceccsscssscssssecseessesecscesessvsevscesvevseeevans 11 1. The Court of Appeal’s Opinion on Smog-Related Fees Conflicts with Existing Authority and Rendersthe Automobile Sales Finance Act Meaningless, Requiring This Court’s Intervention..........eeceesseeeesaeeeeeesaeeseeeenees 1] 2. The Court of Appeal’s Opinion Affects Disclosures Madeto Every Californian Who Financesthe Purchase Of an Automobile .......ccccccccseccsscscescestecstetsesseacseees 14 B. Backdating oo.ccccesesescsseecsesescscseeececsssscsusevavsvscseentesarseaes 16 1. The Court of Appeal’s Opinion on Backdating Conflicts with Existing Authority, Requiring This Court’s Intervention .........ccccccccsssesscsssseecsessesseseaseeees 16 2. The Court of Appeal’s Opinion on Backdating Distorts and Misreads Both the Automobile Sales Finance Act and Regulation Z......ccccssssscssesscsssssssssesssesseseeesereares 17 3. The Impact of the Court of Appeal’s Opinion Goes Beyond Car Buyers, But to All Contracts Governed by Regulation Z oo. ccceccsecssesescsscssssesscsesssssvscssesveceecseases 18 V. CONCLUSIONQeccecccecscesesesessesescsesescenssescscscssscatsesssssvansesrearaceaes 20 ~ii- TABLE OF AUTHORITIES Page(s) CALIFORNIA CASES 49er Chevrolet v. New Motor Vehicle Bd. (1978) 84 Cal.App.3d 84... cscssecescessscssescsssacssssevssssccseveveeeeees 13 Cerra v. Blackstone (1985) 172 CalApp.3d 604.0... ccc cssccecescsscssesssecseescsessceveveees 13,14 Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65... cccccccsesssescsssssesesscesessecssesessveststeseeseees 14 Kunert v. Mission Financial Services Corp. (2003) 110 Cal.App.4th 242 oii cccccscescesssscsscssccscescsssssesesvecsecsees 4 Nelson v. Pearson Ford Co. (2010) 186 Cal.App. 4th 983, 994 oocccccsecsccsccssessescsscecssseceeseseeces eceeceecseeeeesseeesecsessussececsessesensesiusuauasucuseusens 2, 3,4, 6, 7,9, 10, 11, 14, 16, 17, 18 Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997 oo cccceccccsccsssssescesscssesesseavencess 12, 13 Shapiro v. Ogle (1972) 28 Cal.App.3d 261, 266 (Same).......c.cceccceceessesesesescesceceseeses 14 Thompsonv. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950 occ cccesesssscesesssscsseeseeseseees 13, 15, 17 FEDERAL CASES Gibson v. LTD, Inc. (4th Cir. 2006) 434 F.3d 275 voc ccccecsccesccssecesscecsscsesececssstecceseeseseess 19 Janikowski v. Lynch Ford, Inc. (7th Cir. 2000) 210 F.3d 765... cccccscccsscescesssessceesccssssccsssssssceeceeesece 19 Mayberry v. Ememessay Inc. (W.D.Va. 2002) 201 F.Supp.2d 687 oo.ccccccccecsesssscescessssssesssecsseeeens 5 -iii- CALIFORNIA STATUTES Civil Code SOCtION 2981 oececccssssccssscesesecsecssscssssessesacsesstvsessscsssessesavacterseceeesees 4 SOCHON 2981.9. cccccscsscssccscssssssssssssevsecsseasseesssesssessssevassssasesecsecseees 7 SOCTION 2982 oo. ccccccccssecssssscsscsecsceevsssecscsessesssscsessessesassassstessetseeececees 18 Section 2982(a) oo... eseccscsssssscsscssscsssesssssesestsessvsveveracesestsavacavsvaesens 4,7 Section 2982(aN(L)(C) ..ccccecccccescsscescsscsscsscescssesscssesesesssesveceeseecses 4,12 Section 2982(a)(4)...cccccccscescssesessssssssecssssvscecesesessssssacsevscsvsvevsceses 4,12 Rules of Court Section 8.500(D)(1) ...ccceccecescccscccssssseseessessecesevesssacesesvessecsesceseeecece. 3 Vehicle Code Section 5901(d) ...cccccsccccsssscesscssrecevssessescessessees ceeeeeeceeseseseeneeeeeensaas 6 FEDERAL STATUTES 12 CFLR. § 226.1 .occccccccccsscsscsssessecesessseacsussssssesstssssessauseessessestecsessessecess 18 12 CAFLR. § 226.18(d)....cccccccsccesecccssccecsccsescecessssesssssscessestestecsesceseesece. 18 12 C.FLR. § 226.20(a) ..occcecccecsesscssccesscsssscscsscssesscssscsecssceseceesceveccescessecee. 19 -iv- PETITION FOR REVIEW To the Honorable Chief Justice and the Associate Justices of the Supreme Court: Plaintiffs and Petitioners, CARL STONE, et al. (collectively “Plaintiffs”) hereby petition this Court for review of the opinion of the Court of Appeal, Fourth Appellate District, Division Two (per Justices Hollenhorst, Ramirez, and Richli), issued on September 16, 2014, partially in their favor, and partially in favor of Defendant/Respondent Raceway Ford, Inc. (See Court of Appeal’s Opinion attached as “Appendix A.”) 1. ISSUES FOR REVIEW This case involves the evisceration of California’s Automobile Sales Finance Act, a statute enacted by the Legislature in 1961 to protect purchasers of automobiles from excessive charges by requiring car dealers to truthfully and accurately disclose to consumersall items of cost in their purchasecontracts. Primarily, this case involves the disclosures on every car bought in this state from a car dealer where the buyer is financing the purchase. Althoughthe specific disclosure in this case dealt with the charge for smog checking a vehicle and obtaining the appropriate certificate from the State, the published Opinion is applicable to every charge listed on a purchase contract. The Opinion creates open season on consumers, and means no contract can ever violate the Automobile Sales Finance Act again. Here, Raceway Ford charged Plaintiffs for work that wasn’t done and certificate that was not obtained. The Court of Appeal held the disclosed costs on Plaintiffs’ contracts were accurate because Raceway Ford accurately disclosed how much they were improperly charging Plaintiffs. Under this line of thinking, every charge on every car contract in California is now accurate if the car buyer signs the contract. Overcharging for the vehicle, charging for products or services not provided, and overstating tax or license fees are now permissible if the buyer signs the contract because, under the Opinion, the buyer agreed to pay the disclosed amountby signing the contract. The Act was meantto protect the unwary and unsophisticated. Every published opinion under the Act has interpreted the Act to provide that protection. Now, the Act no longer protects car buyers, it enables car dealers to engage in massive fraud. Secondarily, this case involves the Court of Appeal expressly disagreeing with its sister Court in the Fourth District on whether the practice of backdatingresults in disclosures that violate the Act. (See Opn., at 23 (“we find good reason to disagree with Nelson [v. Pearson Ford Co. (2010) 186 Cal.App.4th 983]’s analysis, and decline to follow it in some respects.”); Opn., at 24 (“Nelson stretches an already thin thread of authority beyond the breaking point.”); Opn., at 27 (“We conclude that Nelson misreads Krenisky and Rucker, as well as TILA and Regulation Z, when it declares ‘preconsummation interest to be an illegal finance charge.’”); and Opn., at 28 (“We disagree with Nelson’s analysis, and decline to follow it.”).) Again, the Opinion is based on the premisethat if the consumersigned the contract, then the consumeragreed to the terms in the contract, regardless of whether they are hidden or illegal. With the practice of backdating,that results in what was called “payinginterest for a time period that no contract existed.” (Nelson, 186 Cal.App. 4th at 994.) As explained below, backdating is a widespread practice in California and affects a substantial numberofcar buyers. The issues for review in this opinionare: 1. What constitutes a truthful and accurate disclosure to a consumer under the Automobile Sales Finance Act? 2. Does backdating a conditional sale contract for the purchase of an automobile result in undisclosed and illegal finance charges to car buyers in violation of the Automobile Sales Finance Act? This Court should grant review of this Opinion to bring uniformity to this area of law, and to ensure there is a clear statement that the Automobile Sales Finance Act exists to protect consumers, not legalize fraud by car dealers, so that the millions of vehicle sale contracts in California can be properly enforced by the numerous state and federal courts who regularly deal with them. (See C.R.C. 8.500(b)(1).) | Il. GROUNDS FOR REVIEW OF THIS OPINION Review of this Opinion is necessary both to secure uniformity of decision and to settle important questions of law. (C.R.C. 8.500(b)(1).) This opinion: (1) expressly conflicts with numerousstate opinions that hold the Automobile Sales Finance Act requires truthful, honest, and accurate disclosures to consumers aboutall items ofcost; (2) expressly conflicts with Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, on whether the practice of backdating retail installment sale contracts violates the Automobile Sales Finance Act, making it unclear whether consumers with backdated contracts have unenforceable contracts under the Act; and (3) impacts the interpretation and enforcement of millions of California contracts. The petition raises important issues of law regarding the State of California’s Automobile Sales Finance Act and whether it is a consumer- protection statute or a license for car dealers to steal. Because the Opinion in this case conflicts with many governing California cases, it threatens non-uniform treatment of the same contracts in California state and federal courts. There are millions of these contracts, and numerous lawsuits involving their enforcement, making uniformity particularly necessary and helpful in this particular situation. A. Issue 1 — Fraudulent Fees For over 50 years, the Automobile Sales Finance Act, Civil Code § 2981, et seq., has required car dealers to make truthful disclosures to consumers ofall items ofcost in their purchase. The Act specifically lists numerous items of cost which must be disclosed to the consumer. (Civil Code § 2982(a).) Two of those items are the dealer’s charge for smog testing a vehicle and the amount of the state fee for obtaining the appropriate smog certificate. (Civil Code §§ 2982(a)(1)(C) and 2982(a)(4).) In this case, Plaintiffs purchased diesel vehicles not subject to the smog regulations. The dealership did not smog the vehicles and did not obtain smogcertificates, but charged Plaintiffs for both nonetheless. The Court of Appeal’s Opinion held that so long as the amountof the charges disclosed on the contract was accurate, even if improper, the disclosure did not violate the Automobile Sales Finance Act’s disclosure requirements. Again, the Opinion expressly disagrees with Nelson, holding the informational purpose of the Actis satisfied when the dealer tells the buyer the amount of an illegal charge. By extension, the Opinionalso conflicts with every other published opinion under the Act which all interpreted the Act as requiring truthful disclosures. This Court’s intervention is necessary to determine whether the Automobile Sales Finance Act requires truthful disclosures or permits dealers to include illegal and improper charges in contracts under the auspices that the amount of the illegal and improper charge is accurate. A statute designed to “protect purchasers against excessive charges” (Kunert v. Mission Financial Services Corp. (2003) 110 Cal.App.4th 242, 248) does not protect purchasers against excessive charges if dealers can include any charge they wantand then claim the customer agreedto payit by signing the contract. This Opinion conflicts with over 50 years of authority requiring truthful disclosures to consumers. Telling someone exactly how much youstole from them is a truthful disclosure only in the most perverse way. Plaintiffs urge this Court to grant their Petition for Review and restore the protections the Automobile Sales Finance Act is supposed to give car buyersin California. B. Issue 2- Backdating 1. Whatis Backdating? The conditional sale contracts used by California car dealers structure vehicle sale transactions so that the car dealer, as the seller, is also the buyer’s creditor should the buyer which to financethe purchase. (Opn., at 5.) The car dealer includes a clause on the back of the contract which givesit a right to cancelthesale if the dealer cannot assign the contractto a financial institution. In what are often referred to as “yo-yo sales,” the dealer lets the buyer leave the dealership with the car and a contract, onlyto reel the yo-yo back in when the dealer is unable to sell the contract to a financial institution. The dealertells the buyer they will have to enterinto a new contract under terms acceptable to a financial institution if they want to keep the vehicle. (See, e.g., Mayberry v. Ememessay Inc. (W.D.Va. 2002) 201 F.Supp.2d 687, 695 (describing yo-yosales).) Backdating enters the transaction at the time of the second contract. The dealership, not wanting the consumer to realize they can back out of the deal because the dealership has exercisedits right of rescission, has the customer sign a new contract dated the date of the first contract. This creates the impression to the buyer that the deal is still on, was never cancelled, and all the paperwork the customersigned thefirst timeis still in effect and will be carried over with the new contract. As part of the scheme, the dealership has the customer sign an “Acknowledgment of Rewritten Contract” when they are signing the new contract. By its name, this document suggests not a new contract, but a “rewriting”of the original contract. Tucked into this document, however,is an acknowledgment “the original contract has been rescinded (canceled) such that no obligations shall be owed by either party under the original contract.” (Opn., at 5-6.) Thus, the dealer does rescind the first contract and enter into a new and different contract with the buyer, who is misled into thinking they are just “rewriting” the deal, not agreeing anew to purchase the vehicle. It is the time period between the signing of the two contracts that creates the issue in backdating. For example, the buyer signs a contract on the first of the month. The dealership calls the customer a few days later and tells the customer they have to sign a new contract. The customer returns to the dealership on the fifth day of the month and signs a new contract and an Acknowledgment of Rewritten Contract dated the first of the month. If the first contract was rescinded on the fifth of the month, but the second contract is dated the first of the month, then the second contract charges the buyer an interest charge beginning on the first of the month. Since the second contract was not consummateduntil the fifth of the month (see Vehicle Code § 5901(d) [contract consummated when buyer signs contract and takes delivery]), the buyer is paying an interest charge for four days prior to consummation. The question posed in the Opinion and in Nelson, and answered differently between them, is whether that is a legal charge. 2. The Opinion Should be Reviewed The Court of Appeal’s publication of its Opinion in this case created an express conflict in the decisional law ofthis State regarding the legality of backdating conditional sale contracts for the sale of automobiles. The Automobile Sales Finance Act governs the disclosures car dealers must make to consumers in order to create enforceable contracts. In 2010, the Court of Appeal in Ne/son concluded backdating contracts creates anillegal charge of preconsummation interest, which charge is not disclosed on the backdated contract, thereby violating Civil Code Sections 2981.9 and 2982(a) of the Automobile Sales Finance Act. The Court of Appeal’s Opinion, however, expressly disagrees with Nelson, and holds consumers and car dealers can agree the buyer will pay interest for a time period prior to the consummation oftheir purchase. The | Court of Appeal reaches this conclusion by misinterpreting the language of Regulation Z to turn new purchase contracts into refinancings. Whereas the Nelson court concluded backdating creates an illegal finance charge entitling the consumerto rescind their contract, this Opinion finds there is no illegal finance charge, acknowledges backdating may result in a violation of Regulation Z, but holds even if it does there is no remedy for such a violation under the Automobile Sales Finance Act. This Court’s intervention is therefore required to resolve this conflict for litigants and consumers who will be faced with the sameissue in the future, and to provide guidance to lower courts on whether and how backdating violates the Automobile Sales Finance Act. Both California car buyers and California car dealers are entitled to know whether backdating vehicle sale contracts is permissible. Both Nelson and this case involved certified classes of over 1,000 car buyers. (Opn., at 6; Nelson, 186 Cal.App.4th at 996.) Numerous cases involving this practice at other car dealerships across the State remain pending and will benefit from resolution of this express conflict. Accordingly, for all of these reasons, the Court should grant review to resolve the conflicts, bring uniformity to this area of the law, and end the uncertainty that fuels this litigation. Ii. RELEVANT FACUTAL AND PROCEDURAL HISTORY A. Relevant Facts and Background 1. Issue 1 — Fraudulent Fees Plaintiff Randal Kidd purchased a used 2000 Ford F-250 from RacewayFord on August 5, 2003. The F-250 wasa diesel vehicle, which at that point in time in California were not subject to smog-testing. Raceway Ford did not smog test the vehicle, nor did it obtain a certificate of compliance, noncompliance, exemption, or waiver from the State. Nevertheless, on his contract, Raceway Ford charged Mr. Kidd $50 for performing a smog test, and $8.25 for a certificate from the State. The certified class consisted of 48 consumers. 2. Issue 2 — Backdating of Contracts Plaintiffs Carl and Deborah Stone purchased a new 2004 Ford Expedition from Raceway Ford on June 13, 2004. Raceway Ford was unable to assign the contract to a financial institution, and requested the Stones sign a new contract. On June 16, 2004, the Stones returned to Raceway Ford and signed an Acknowledgment of Rewritten Contract rescinding their original contract, and then signed a new contract to purchase the Expedition. The contract signed on June 16, 2004, was dated June 13, 2004, and began to charge interest as of June 13, 2004. The certified class consisted of over 1,000 Raceway Ford customers. B. Relevant Procedural History 1. Proceedings in the Trial Court The trial court certified both a “fraudulent fee” class and a “backdating” class whose claims went to trial in March 2010. The “fraudulent fee” class asserted a claim under the Automobile Sales Finance Act after the trial court denied certification of class claims under the Consumers Legal Remedies Act and Unfair Competition Law. The “backdating” class asserted claims under the Automobile Sales Finance Act, the Consumers Legal Remedies Act, and the Unfair Competition Law. In April 2010, the trial court issued a statement of decision finding Raceway Ford did not violate any of the statutes by backdating contracts. As to the fraudulent smog fee claim, the trial court found Raceway Ford violated the Automobile Sales Finance Act, but had corrected the violation in compliance with the Act and therefore was not liable to the “fraudulent fee” class. (Opn., at 10-11.) Raceway Ford submitted a request for entry of judgment, to which Plaintiffs objected. Plaintiffs requested a hearing on the Statement of the Decision, which the trial court denied. The trial court indicated the Statement of Decision would stand as the decision of the court, but did not sign or enter a judgment. (/d., at 11.) The Nelson opinion was published July 15, 2010, and found backdating violated all three statutes at issue. Raceway Ford submitted another proposed judgment, to whichPlaintiffs again objected. Not wanting to follow Nelson, the trial court stayed the case to see if this Court would rule on a request for depublication of Nelson. On November 17, 2010, this Court denied the request for depublication. Thus, on December 10, 2010, the trial court reluctantly determined it was required to follow Nelson, withdrew its previous statement of decision, stated it was finding in favor of Plaintiffs, and set a hearing to determine the appropriate remedy for the backdating class. (/d., at 12.) Raceway Ford responded by filing a petition for writ of mandate requesting the trial court be ordered to enter judgment in conformance with its original Statement of Decision. On March 22, 2011, the Court of Appeal agreed with Raceway Ford and ordered a peremptory writ of mandate issue directing the trial court to enter judgment in favor of Raceway Ford based solely on the trial court’s failure to act in a timely manner. (/d., at 12-13.) The trial court responded by vacating its December 10, 2010 orderin favor of Plaintiffs and stating it was entering judgment nunc pro tunc to June 10, 2010, in favor of Raceway Ford in accordance with the original Statement of Decision. Again, the trial court failed to actually sign and enter a judgment. (/d.) Plaintiffs filed a motion for new trial, arguing the trial court was bound to follow the published opinion in Ne/son, which wasbinding onall trial courts. Despite having previously acknowledging Nelson was binding on it, the trial court denied Plaintiffs’ motion in defiance of Nelson. Plaintiffs filed a notice of appeal, and the Court of Appeal responded by ordering Plaintiffs to file the signed judgmentin support oftheir appeal. As there was no signed judgment, Plaintiffs appeared ex parte before thetrial court on October 12, 2011, at which timethe trial court finally signed a judgment. (/d.) 2 The Court of Appeal’s Opinion a. Issue 1 — Fraudulent Fees Since its enactment in 1961, courts have interpreted the Automobile Sales Finance Act to require truthful and accurate disclosures of cost. As explained in Nelson, “Unless dealers disclose correct information the disclosure itself is meaningless and the informational purpose of the ASFA is not served.” (Nelson, 186 Cal.App.4th at 1005.) Despite acknowledging that by charging for work it didn’t do and for certificate it didn’t obtain, Raceway Ford did not disclose correct information to its customers, the Court of Appeal nevertheless concluded that because the amounts Raceway Ford charged “were accurately and explicitly stated in writing.” (Opn., at 41.) According to the Court of Appeal, “if the disclosures were made, and are true in the sense of accurately describing the terms of the parties’ agreement,” then the contract complies with the Act. That conclusion directly conflicts with substantial authority interpreting the Act and gives 10 car dealers a license to steal with immunity if the amount being stolen appears in the contract. This statutory interpretation requires the Court’s intervention now to protect the millions of car buyers in California from this gross distortion of the Act. b. Issue 2 — Backdating The Court of Appeal reversed in part and affirmed in part the trial court’s ruling on backdating. Expressly disagreeing with Nelson, the Court of Appeal held backdating does not create an illegal charge of pre- consummation interest. The Court of Appeal ignored the trial court’s refusal to follow the binding opinion in Nelson (Opn., at 3, n. 2), instead hastily jumping into its own analysis and criticism of Nelson. After agreeing with Nelson’s analysis the second contract required new disclosures under the Automobile Sales Finance Act and Regulation Z, the Court of Appeal concluded the second contract was somehowa refinancing and therefore backdating could result in an inaccurate disclosure of the APRin violation of Regulation Z, although there would be no remedy under the Act. The Court of Appeal rejected Ne/son’s conclusion interest charges prior to consummation ofthe contract violate Regulation Z. Since the Court of Appeal expressly rejected and disagreed with Nelson, this Court’s intervention is nownecessary to resolve this conflict on a critical issue to car buyers acrossthe State. IV. DISCUSSION A. Smog-Related Fees 1. The Court of Appeal’s Opinion on Smog-Related Fees Conflicts with Existing Authority and Renders the Automobile Sales Finance Act Meaningless, Requiring This Court’s Intervention The Court of Appeal concluded charging fees for work that wasn’t done andfor a certificate from the State that wasn’t issued did not violate 1] the Automobile Sales Finance Act’s requirement that contracts contain “full disclosure of all items of cost.” (Opn., at 41.) The Automobile Sales Finance Act requires the dealer to disclose “the fee charged by theseller for certifying that the motor vehicle complies with applicable pollution control requirements” and “the amount ofthe state fee for issuance ofa certificate of compliance, noncompliance, exemption, or waiver pursuant to any applicable pollution contro] statute.” (Civil Code §§ 2982(a)(1)(C) and (a)(4).) Rather than interpret the Act’s requirements to mean the dealer actually had to certify the vehicle and obtain a state-issued certificate to charge the consumer, the Court of Appeal concluded the buyer could “agree” to pay these amounts even when not applicable if they were disclosed on the contract. The Court of Appeal labels the costs at issue “accurately described, but erroneously included.” (Opn., at 42.) The Court of Appeal acknowledges that “a primary goal of the ASFA’s disclosure provisions is to ‘protect purchasers against excessive charges ....” (Opn., at 43 (citation omitted).) And the Court of Appeal concedes “the goal of protecting purchasers from excessive charges wasnotinitially achieved.” (Jd.) Despite all that, the Court of Appeal concluded “it does not follow, however, that the ‘informational purpose of the ASFA [was] not served.’” (Jd. (citation omitted).) Instead, according to the Court of Appeal, Plaintiffs “received all the information that the ASFA required them to receive; among other things, they were informed, in writing, how much they were being charged for smog-related fees.” (Opn., at 44.) The Automobile Sales Finance Act “is a consumerprotection law governing the sale of cars in which the buyer finances some,orall, of the car’s purchase price.” (Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997, 1002.) “The act contains detailed disclosure requirements intended to protect the consuming public ....) (Id, at 1005 (citing Legis. 12 Counsel’s Dig., Assem. Bill No. 238 (2011-2012 Reg. Sess.) 9 Stats.2011, Summary Dig., p. 5039).) The “spirit and policy” of the Act is to prevent “fraudulent and deceptive practice(s).” (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 976.) The Act has an “overriding policy of full and fair disclosure [which] presupposes the dealer has honestly disclosed the true value(s) ... as a starting point in the parties’ goodfaith negotiations.” (/d., at 975.) Thus, the Act must be interpreted “consistent with its remedial purpose of protecting consumers from inaccurate andunfair credit practices through full and honest disclosures.”(/d., at 978.) “Requiring a meaningful disclosure of credit terms both protects consumers and enhances fair business competition.” (/d. [citing 15 U.S.C. § 1601(a)].) The Court of Appeal’s interpretation of the smog-related fees not only never achieved the goal of protecting consumers from excessive fees, it conflicts with the authority that the Act (a) has a remedial purpose, (b) protects against inaccurate practices, and (c) requires meaningful disclosures. In analyzing transactions subject to the Automobile Sales Finance Act, courts are supposed to “look to the substance of the transaction and do not allow mere form to dictate the result.” (Thompson, 130 Cal.App.4th at 966 (citations omitted).) “The legislative purpose in enacting the Rees- Levering Act was to provide more comprehensive protection for the unsophisticated motor vehicle consumer.” (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 608 (citing Final Report of the Assembly Interim Committee on Finance and Insurance, 15 Assembly Interim Committee Reports No. 24 (1961) quoted in The Rees-Levering Motor Vehicle Sales and Finance Act, 10 UCLA Law Review (1962) 125, 127); see also 49er Chevrolet v. New Motor Vehicle Bd. (1978) 84 Cal.App.3d 84, 94 (“The various sections ofthe act clearly indicate its consumer protection nature.” (concurring opinion)).) “California courts have often in the past considered, 13 recognized, and declaredillegal, schemes whereby automobile dealers have attempted to evade the provisionsofcontrolling legislation.” (Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 78 (citations omitted).) By allowing full and dishonest charges simply because they were on the contract, the Court of Appeal’s Opinion puts form over substance, and re- writes the Act to permit dealers to evadeits provisionsbytelling customers exactly how muchtheyare illegally charging them. The Court of Appeal’s Opinion departs from the published case law which treats the Act as “designed to protect the unsophisticated, unwary consumer.” (Hernandez, 105 Cal.App.3d at 79; Shapiro v. Ogle (1972) 28 Cal.App.3d 261, 266 (same); Cerra, 72 Cal.App.3d at 608 (same); Nelson, 186 Cal.App.4th at 1004 (same).) In Nelson, the Court of Appeal cautioned that “[uJnless dealers disclose correct information the disclosure itself is meaningless and the informational purpose of the ASFA is not served.” (Nelson, 186 Cal.App.4th at 1005.) Charges for work that did not need to be done and wasnot done, and for a certificate that was not issued, are not correct information. The strong consumerprotection policy underlying the disclosure requirements in the Automobile Sales Finance Act is gutted when dealers can include false, but accurate, charges. This Court should grant Plaintiffs’ request for review and clarify that false charges are inaccurate and actionable under the Automobile Sales Finance Acct. 2. The Court of Appeal’s Opinion Affects Disclosures Made to Every Californian Who Finances the Purchase of an Automobile The Court of Appeal’s Opinion on the disclosure of smog-related fees allows car dealers to engage in massive fraud. Car dealers can now include amounts for any charge they want on the contract, regardless of whetherthe chargeis legitimate. If the dealer can sneak the charge past the buyer, then the charge is legal and an accurate disclosure based on the 14 Court of Appeal’s Opinion. If a dealer wants to collect $3,000 in sales tax even though only $1,000 in tax is due, all it needs to dois put down $3,000 on the contract and hope the customer doesn’t realize the number is too high. With millions of vehicles being sold in California every year, every Californian who finances the purchase of their vehicle is now fair game to deceptive and fraudulent charges by car dealers. The Thompson Court of Appeal cautioned against such an approach: Thefact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. Thereis no duty resting upon a citizen to suspect the honesty of those with whom he [or she] transacts business. Laws are madeto protectthe trusting as well as the suspicious. [T]he rule of caveat emptor should not berelied upon to reward fraud and deception. (Thompson, 130 Cal.App.4th at 976 (citations omitted).) Here, the Court of Appeal blamed the consumerfor not knowing the dealership cheated them and signing a contract with improper chargesinit. (Opn., at 44, n. 24.) The Court of Appeal’s Opinion imposes a duty on every California car buyer to scrupulously review every charge on their contract, lest they be held responsible for false and fraudulent charges that appear in the contract. Such a duty turns this consumerprotection statute into a fraud enablingstatute and requires this Court’s intervention to protect all California consumers. 15 B. Backdating 1. The Court of Appeal’s Opinion on Backdating Conflicts with Existing Authority, Requiring This Court’s Intervention The Court of Appeal’s distaste for Nelson is not masked in any way. (See Opn., at 23 (“we find good reason to disagree with Nelson’s analysis, and decline to follow it in some respects.”); Opn., at 24 (“Nelson stretches . an already thin thread of authority beyond the breaking point.”); Opn., at 27 (“We conclude that Nelson misreads Krenisky and Rucker, as well as TILA and Regulation Z, when it declares ‘preconsummation interest to be an illegal finance charge.’”); and Opn., at 28 (“We disagree with Nelson’s analysis, and decline to follow it.”).) The Nelson court started from the premise that “The California Legislature enacted the ASFA in 1961 with an operative date of January 1, 1962, to increase protection for the unsophisticated motor vehicle consumer and provide additional incentives to dealers to comply with the law. (Nelson, 186 Cal.App.4th at 999.) First, the Nelson court concluded the dealership violated Regulation Z by calculating the APR from the date the consumer took possession of the car rather than the date of consummation. That resulted in the disclosed APR falling outside Regulation Z’s permissible tolerances. (/d., at 1001.) As explained by the Ne/son court, the dealership’s “act of backdating the second contract resulted in Nelson paying a finance charge before consummation of the contract. Accordingly, the backdating of the second contract caused Nelson to pay interest on a contract that did not exist. We consider this preconsummation interest to be an illegal finance charge.” (d., at 1003.) The Court of Appeal here started down the same path as Ne/son, but then abruptly turned courses. First, the Court of Appeal agreed “the date the 16 second or subsequent contract was signed would normally be the appropriate date to use as the beginning of the term for purposes of calculating the APR of the second or subsequent contract’s credit transaction, under the method required by Regulation Z.” (Opn., at 20.) The Court of Appealthen discussed “refinancing” under Regulation Z, concluding “a second or subsequent contract entered into between Raceway and a customer regarding the same vehicle would generally be considered a ‘refinancing,’ triggering a requirement for new disclosures.” (Opn., at 22.) Next, the Court of Appeal read Regulation Z to allow “interest on consumercredit contracts to be calculated as accruing from a date prior to consummation of the contract, if the parties agree among themselves to such a calculation.” (Opn., at 23-24.) As such, according to the Court of Appeal, “plaintiffs’ backdated contracts did not cause them to pay a finance charge when no contract existed, as Nelson would haveit.” (Opn., at 26.) Accordingly, this Court’s review is required now to determine whether backdating creates an illegal charge of preconsummation interest and parties to a consumercredit transaction can agree to the imposition of a finance charge prior to the date of consummation. 2. The Court of Appeal’s Opinion on Backdating Distorts and Misreads Both the Automobile Sales Finance Act and Regulation Z The Automobile Sales Finance Act governs the disclosure ofall items of cost, and such disclosures are mandatory. (Thompson, 130 Cal.App.4th at 966 (citations omitted).) When a customer purchases a vehicle under a conditional sale contract and finances the purchase, a finance charge applies from the date of consummation to the end of the contract. Regulation Z requires the finance charge to be disclosed in closed- end credit transactions, such as a fixed term contract to purchase an 17 automobile. (12 C.F.R. § 226.18(d).) The Automobile Sales Finance Act requires a contract to include all the disclosures required by Regulation Z, so therefore the finance charge must be disclosed under California law as well. (See Civil Code § 2982.) As noted above, the Court of Appeal here held “nothing in Regulation Z forbids interest on consumercredit contracts to be calculated as accruing from a date prior to consummationofthe contract, if the parties agree among themselves to such a calculation.” (Opn., at 23-24.) Even if this were true, clearly were such an agreement madebythe parties, it would include interest for a time period prior to the consummation ofthe contract, what Nelson refers to as preconsummation interest. This preconsummation interest is a distinct and calculable amount that does not exist in any contract but a backdated contract. (See Nelson, 186 Cal.App.4th at 996 (stating preconsummation interest in Nelson’s contract was $19.53).) It is an amount that is not present in a contract where the finance charge is calculated from the date of consummation. Since the Automobile Sales Finance Act requires “full disclosure of all items of cost,” (Nelson, 186 Cal.App.4th at 999-1000), and preconsummationinterest is an item ofcost, it must be disclosed under the Act. The Court of Appeal’s Opinion completely ignores this element of backdating and whether it complies with the Act. 3. The Impact of the Court of Appeal’s Opinion Goes Beyond Car Buyers, But to All Contracts Governed by Regulation Z While California’s Automobile Sales Finance Act only applies to conditional sale contracts for the purchase of motor vehicles, Regulation Z (and the federal Truth in Lending Act) applies to all consumer credit transactions. (12 C.F.R. § 226.1.) Thus, while the Court of Appeal’s analysis and application of the Automobile Sales Finance Act and 18 Regulation Z apply to the vehicle sale contracts at issue in this case,its analysis and interpretation of Regulation Z applies to all consumers who enter into credit transactions. Regulation Z defines a “refinancing” as when an existing obligation is satisfied and replaced by a new obligation undertaken by the same consumer. (12 C.F.R. § 226.20(a).) Most people associated “refinancing” with their home, when they get a new loan to pay off an existing loan. Here, the car buyers and Raceway Ford were cancelling the existing obligation under the first contract. The second contract did not satisfy the first contract, it replaced it as a new and independent contract. The second contracts signed by Raceway Ford’s customers were not “refinancings” as defined by Regulation Z. The obligation for new disclosures arose because the second contracts were new and independentcontracts. (Opn., at 19-20 (citing Gibson v. LTD, Inc. (4th Cir. 2006) 434 F.3d 275 and Janikowski v. Lynch Ford, Inc. (7th Cir. 2000) 210 F.3d 765).) When the Court of Appeal concluded the Automobile Sales Finance Act could only be violated by backdating if the “second or subsequent contracts with Raceway constitute ‘refinancings’ (as that term is defined in Regulation Z) and disclose APRs that are outside the margin of error allowed by Regulation Z,” (Opn., at 39), it distorted and misinterpreted Regulation Z’s requirements of when new disclosures are required. New disclosures were required in every backdated contract because they were new contracts with new credit terms, not because they might have been “refinancings.” Since Regulation Z applies to all consumer credit transactions, the Court of Appeal’s interpretation that new contracts only require new disclosures if they are refinancings is not limited to vehicle sale contracts. This Court should grant review nowto clarify the application of Regulation Z not only to vehicle contracts, but to all consumer credit contracts in California. 19 V. CONCLUSION Based upon the foregoing, Plaintiffs respectfully request this Court grant this Petition for Review. DATE:October 27, 2014 Respectfully submitted, ROSNER, BARRY & BABBITT, LLP Lacee B. Smith, Esq. Attorneysfor Plaintiffs and Petitioners CARL STONE,etal. 20 CERTIFICATE OF COMPLIANCE PURSUANTTO THE CALIFORNIA RULES OF COURT, RULE8.504(d)(1) Pursuantto the California Rules of Court, Rule 8.504(d), I certify the foregoing petition is proportionally spaced - is at least one and a half spaced- has a typefaceof 13 points, and based upon the word countfeature of the computer program usedto preparethis brief (Microsoft Word 2010), contains 5,741 words. DATE:October 27, 2014 Jaw Suh Lacee B. Smith, Esq. 21 APPENDIX A CERTIFIED FOR PUBLICATION IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO SEP 16 2014 | COURT OF APPEAL FOURTH DISTRICT E054517, E056595 RACEWAY FORD CASES, (Super.Ct.No. JCCP4476) OPINION APPEALfrom the Superior Court of Riverside County. Dallas Holmes, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuantto art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, with directions. Rosner, Barry & Babbitt and Hallen D. Rosner, Christopher P. Barry and Angela J. Smith for Plaintiffs and Appellants Carl Stoneet al. Callahan, Thompson, Sherman & Caudill and Kellie S. Christianson for Defendant and Respondent RacewayFord,Inc. I. INTRODUCTION Plaintiffs, appellants, and cross-respondents (plaintiffs) are consumers who purchased vehicles from defendant, respondent, and cross-appellant Raceway Ford (Raceway), an automobile dealership. Plaintiffs alleged numerous causes of action based on laws proscribing certain acts against consumers, unfair competition, and deceptive | business practices, bringing both individual claims and claims on behalf of two certified classes.. The trial court, after-a bench trial, entered-judgment in favor of Raceway-and against plaintiffs on all causes of action, except that a single plaintiff was granted rescission on a single cause ofaction. Separately, the trial court awarded attorneys’ fees and costs to Racewayin the amount of $1,503,084.50. In these appeals, which we ordered consolidated for ora] argument and decision, plaintiffs challenge the trial court’s judgmenton the merits (case No. E054517) and fee order (case No. E056595); Raceway has cross-appealed regarding one aspectofthe trial court’s fee order. With respect to the trial court’s decision on the merits (case No. E054517), plaintiffs contend that, as a matter of law, Raceway’s previous practice of “backdating” second or subsequent contracts for sale of a vehicle to the original date of sale violates the Automobile Sales Finance Act, also knownas the Rees-Levering Motor Vehicle Sales and Finance Act (ASFA) (Civ. Code,! § 2981 et seq.), the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), and the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.). Plaintiffs ask that we reverse the trial court’s judgmentin favor of Racewayand againstthe certified class of plaintiffs who entered into backdated second or subsequent contracts with Raceway, and order entry ofjudgmentin favor of plaintiffs. We agree that the practice of backdating could have resulted in inaccurate ' Further undesignated statutory referencesare to the Civil Code unless otherwise indicated. 2 Plaintiffs also seek reviewofthetrial court’s denial of their motion for a new trial and motion to vacate and enter different judgment pursuant to Code ofCivil Procedure section 663. Thetrial court’s denial of these posttrial motions, however, raises [footnote continued on next page] disclosures to class members, thereby violating the ASFA,at least in some cases. On the present record, however, we decline to order entry ofjudgmentin favorof the plaintiff class. Weinstead reversethe trial court’s judgment in favor of Raceway with respectto plaintiffs’ backdating claims, and remand for further proceedings. Plaintiffs also appeal the judgment in favor of Raceway with respect to the claims of a secondcertified class, consisting of Raceway customers who purchased used diesel vehicles from Raceway and who were charged fees for smog checks and smog certifications that were only properly applicable to purchases of gasoline vehicles. Plaintiffs argue that Racewayfailed to plead and establish a valid defense to liability ‘under the ASFA with respect to these fees, and that the class is entitled to judgmentinits favor and the remedyofrescission, notwithstanding refunds paid by Raceway. We affirm the trial court’s judgment with respect to plaintiffs’ smog fee claims. Additionally, plaintiffs appeal the judgment in favor of Racewayon certain individual plaintiffs’ claims that Raceway violated the ASFAbyfailing to provide them with copies of their credit applications. Plaintiffs challenge the trial court’s finding that these plaintiffs did not meet their burden of proving a violation. Plaintiffs’ evidence in support of these claims does not compel a decisionin their favor, so weaffirm the trial court’s ruling. [footnote continuedfrom previous page] no substantive legal issues that are not either resolved or mooted by our ruling with respect to the trial court’s judgment on the merits. Wereject plaintiffs’ contention, raised at oral argument, that we either must or should considerthe propriety of the denial of their posttrial motions first. We therefore do not discuss these motions further. Finally, plaintiffs appeal the judgment in favor of Racewaywith respect to claims under-the UCLandthe: CLRA: broughtby-plaintiff- Francisco Salcedo in-his individual capacity. The trial court found in favor of Mr. Salcedo on his claimoffraud, and granted him the remedyofrescission, though it declined to award any punitive damages. Plaintiffs contend that the judgment in Mr. Salcedo’s favor on his fraud claim—which Raceway has not appealed—establishes.as a matter of law that he should also have judgmententeredin his favor on his UCL and CLRA claims. Weagree, and reverse, remanding the matter to the trial court for entry ofjudgment in favor of Mr. Salcedo on the UCL and CLRA claimshe brought in his individual capacity, and for consideration as to whether he should be awarded any additional remedies, beyond those already awarded to him based on his common law fraud cause of action. Thebasis for the trial court’s award of fees to Racewayis in part undermined by ourpartial reversal of the judgment. Wetherefore need not and do not address the merits of the parties’ arguments in the appeal and cross-appeal of the fee award, but instead vacate the trial court’s fee award, and remandthe issue ofattorneyfees and costs for reconsideration following final adjudication of the remainderofthe case. I]. FACTUAL BACKGROUND Plaintiffs’ most recent amended complaint, the second amended complaint (SAC), alleges 18 causesof action, including claims on behalf of several separate classes, and other claims on behalfof certain individual plaintiffs. The claims at issue in the present appeal fal] into four categories; we describe belowthe background facts relevant to each of these categories. A. Backdating Claims For someof its customers, Raceway acts not only as seller of a vehicle, but also as creditor, by extending financing for the sale. Generally, Raceway then attempts to assign the finance contract to a commercial lender. Sometimes, after the contract for the sale and financing has been signed and the customerhas taken delivery of the vehicle, Racewayhaslater entered into a second or subsequent contract with the customerfor the same vehicle. This occurred on some occasions when commercial lenders were unwilling to accept assignmentofthe contract on the terms Racewayhad agreed to with its customer; in that case, Raceway could contact the customer and request to renegotiate the termsofthe sale and financing.? Alternatively, a customer couldinitiate a renegotiation with Raceway, for example, because he or she had regrets abouttheinitial terms. Plaintiffs’ backdating claims arise from the circumstancethat, prior to late 2004,it was Raceway’s practice to date second or subsequent contracts negotiated with customers using the date of the initial contract. A customer who agreedto enter into a second or | subsequent contract with Raceway would sign not only a new purchasecontract, dated to the initial date of sale, but also an “Acknowledgement of Rescinded Contract”or ‘Acknowledgement of Rewritten Contract,” which also was backdated to the date as the original contract. The acknowledgements state that the original contract has been 3 Alternatively, in such circumstances, Raceway may chooseto continue to act as creditor, accepting payments from the customerdirectly for the term of the financing, or, as will be discussed in more detail below, Raceway maychooseto rescindthe sale, exercising the unilateral rescission rights it holds under the terms of the contracts. t a “rescinded (canceled) such that no obligations shall be owed byeither party under the original contract.” Thetrial court certified a class, referred to as “Class One”or the “Backdating Class”by the parties, consisting of “[a]ll persons who, since January 12, 2001, (1) purchased a vehicle from Raceway Ford, for personal use, (2) on a later date rescindedtheir original purchase contract, and (3) signed a subsequent or second contract for the purchase of the samevehicle, which contract was dated the date ofthe original purchase contract and involved financing at an annual percentage rate greater than 0.00%.” There are, accordingto plaintiffs, approximately 1100 members of Class One, Attrial, Class One asserted claims under the ASFA, CLRA, and UCL based on the practice of backdating described above. The trial court found in favor of Racewayonall claims; its reasoning in support ofthis ruling will be discussed below. B. Smog Fee Claims Raceway concedesthat it erroneously charged someofits customers who purchased used diesel vehicles certain fees related to performing a smog check and obtaining state smog certification that should only have been charged to purchasers of used gasoline-powered vehicles, These charges were explicitly disclosed in the contracts that the customerssigned; the problem is that the fees should not have been charged at all, and neither Racewaynor the customers involved caught the errorat the time of the transaction. Plaintiffs have not disputed that each of these customers has, during the pendency ofthis litigation, received two checks from Raceway,the first of which refunded the fees themselves, and the second of which represented an amount Raceway calculated to represent any finance charges the customers mayhave incurred on thefees. Thetrial court certified a class, referred to by the parties as “Class Two”or the “Smog Fee Class,”consisting of “[a]ll persons except for Robert Loverso4 who, since January 12, 2001, purchased a diesel vehicle from Raceway Ford for personal use and were charged a smog fee and a smogcertification fee.” There are, accordingto plaintiffs, 48 membersof Class Two. Attrial, Class Twoasserted only a claim under the ASFA.5 Thetrial court entered judgment in favor of Raceway, finding that Raceway’s actions constituted a “bona fide error corrected with full refunds plus interest within a reasonable time under the Automobile Sales Finance Act,” and holding that “Racewayis not legally required to do more to correct”its errors. Plaintiffs contend that Class Twois entitled to judgmentin its favor under the ASFA and the remedyofrescission. C. Credit Application Claims Certain individual plaintiffs,° some of whomtestified at trial, claimed that Raceway failed to provide them with copies of their credit applications, in violation of the ASFA. Raceway contended that it did provide them copies, and presented evidence at trial of its policy and practice to give every customer a copyof anycredit application 4 Robert Loverso wasinitially a named class memberbut, as pleaded in the SAC, he entered into a separate settlement agreement with Raceway. > Though Class Twoalsoalleged a claim under the UCLin the SAC,thetrial court only certified Class Two with respect to its claim under the ASFA. © Specifically, plaintiffs Carl Stone, Deborah Stone, Francisco Salcedo, Anselmo Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott, Martha Ott, Eldridge Johnson, Randal Kidd, Macon Pollard, Ozetta Pollard, and Suzanna Moreno. ~ ] submitted by a customer. Thetrial court ruled in favor of Raceway, finding plaintiffs had not-met.their-burden. of proof, and noting-there was “competent-but-conflicting-evidence presented on both sides” as to whetherplaintiffs were provided copies oftheir credit applications in conjunction with their initial contracts with Raceway, and “no credit applications were neededor required”with respectto anysecond or subsequent contracts. D. Individual Claims of Francisco Salcedo Plaintiff Francisco Salcedo is a Raceway customer whoinitially purchased and took delivery of a new pickup truck, a 2004 Ford. Hetestified that a representative of Raceway subsequently called him and told himthat he neededto bring the vehicle back, because he did not qualify for financing.. Mr. Salcedo returned the vehicle to the dealership. Whenhe did so, he asked if he could get back his trade-in; he was told that he could not. He wastold that instead he had to choose analternative vehicle from several presented by Racewaythat he would be qualified to purchase; he selected a used 2001 Chevrolet pickup truck, signing a new purchase contract for the second vehicle. Raceway wasacting within its contractual rights to require Mr. Salcedo to return the 2004 Ford. Underthe terms ofits contracts, Raceway holds a unilateral right of rescission for a period of 10 days afler a sale, which may be exercised if Raceway is unable to verify a customer’s credit and assign the contract.’? Under the termsofits 7 A buyer signing a Raceway contract agrees “that it may take a few days for [Raceway] to verify your credit and assign the contract,” and agrees that “if [Raceway] is unable to assign the contract to any one ofthe financial institutions with whom [Raceway] regularly does business under an assignment acceptable to [Raceway], [Raceway] may rescind (cancel) the contract.” contractual rescission rights, however, once Racewayelects to rescind a contract and receives the vehicle from the customer, Raceway must return “all consideration received by [Raceway], including any trade-in vehicle.” That is not what Raceway did in the case of Mr. Salcedo, Thetrial court ruled that Mr. Salcedo hadsatisfied his burden of proof for his fraud claim,finding him to be “a credible witness when he testified that he was told by Raceway’s authorized representative uponhis return after the customary telephonecall that he could not refuse to sign a second contract and unwindthe transaction because they could notreturn his trade-in since they didn’t know whereit was.” Raceway has not challengedthis ruling on appeal. Thetrial court’s statement of decision does not specifically address two other claims asserted by Mr. Salcedoin his individual capacity,8 based on the samefacts, namely, claims under the UCL and the CLRA. Thetrial court’s judgment, entered on October 12, 2011, provides no elucidation, because it does no more than adopt and attach the statement of decision. Similarly, in considering the issue of attorney fees, the trial court explicitly reduced the award in favor of Raceway by an amountintended to reflect Raceway’s unsuccessful defense of Mr. Salcedo’s fraud claim, but makes no mention of Mr. Salcedo’s individual UCL or CLRAclaims. Mr. Salcedo is not amongthe individual 8 Mr. Salcedois also a namedrepresentative of Class One. After Mr. Salcedo’s initial contract for the 2001 Chevrolet, he waslater invited back to enter into a replacement contract with respect to that same vehicle, on terms that would lowerhis monthly payment. Both Mr. Salcedo’s initial contract for the 2001 Chevrolet (his second contract with Raceway) and his subsequent contract for the same vehicle (his third contract with Raceway) are dated June 11, 2004. plaintiffs held jointly and severally liable for the fees awarded to Raceway as prevailing party; even though-he was a named-memberof Class-One, in addition to asserting individual claims, Nevertheless, the parties and the trial court all appear to have understood thetrial court to have rendered a decision in favor of Raceway on all claimsasserted byplaintiffs at trial, with the sole exception of Mr. Salcedo’s fraud claim. Wetherefore will proceed with our analysis of the case on the understanding that the court intended to enter judgmentin favor of Raceway and against Mr. Salcedo on his UCL and CLRA claims, (See Jn re Marriage ofRichardson (2002) 102 Cal.App.4th 941, 949 [‘“ Where an ambiguity exists, the court may examine theentire record to determine the judgment’s scope and effect.’”].) I. PROCEDURAL BACKGROUND Plaintiffs’ initial complaint in this matter was filed on October 29, 2004. The SAC wasfiled on July 21, 2008. A bench trial on claims remaining in the case was held in from March 3, 2010, through March 9, 2010. The posttrial procedural history ofthis case is an object lesson on the importance of California Rules of Court, rule 3.1590(/), which provides the time within which,if a written judgmentis required after a court trial, the trial court must sign andfile the judgment.’ Also, even though manyofthe details are not strictly relevant to our ° California Rules of Court, rule 3.1590(/) provides that where a written judgment is required, “the court must sign andfile the judgment within 50 daysafterthe [footnote continued an next page] 10 disposition of these appeals, the posttrial procedural history is useful for understanding the current posture of the case. Wewill, therefore, describe it at some length. On March 30, 2010,thetrial court issued its tentative decision on the merits. On April 16, 2010, the trial court issued a statementof decision, identical in substanceto the tentative decision, and finding in favor of Raceway onall causesof action except that a single plaintiff—Mr. Salcedo—wasgranted rescission on a single cause of action. On April 29, 2010, Raceway filed a request for entry ofjudgment, including a proposed judgment. On May3, 2010, and May5, 2010,plaintiffs filed objections to the request for entry ofjudgmentand statement of decision, respectively, and requested a hearing under California Rules of Court, rule 3.1590(k). On May 13, 2010,the trial court issued a minute order denying the requested hearing, overruling the objections, and orderingthat the statement of decision would stand asthe decision of the court. No judgment, however, was signed and entered by the court. On June 9, 2010, Racewayfiled a second request for entry ofjudgment, including a revised proposed judgment. On June 15, 2010,the trial court denied plaintiffs’ motion for leaveto file a third amended complaint to conform to proof adduced attrial. Thetrial court also denied an oral requestbyplaintiffs for a stay of proceedings until after the Fourth District, Division One Court of Appeal issued a ruling on a similar action. The trial court directed counsel to submit a joint proposed judgmentto the court. [footnote continuedfrom previous page] announcement or service of the tentative decision, whicheverislater, or, if a hearing was held under [rule 3.1590(k)], within 10 days after the hearing.” 1] The parties did not submit a joint proposed judgmentprior to the issuance of Nelson v:-Pearson Ford-Co: (2010).186 Cal.App.4th 983-(Nelson):-by. the Fourth. District, Division One Court of Appeal on July 15, 2010. In Nelson, as in this case, plaintiffs asserted (among other things) class claims based on backdating of second or subsequent vehicle contracts by a dealership, allegedly in violation of the ASFA, UCL, and CLRA. (Nelson, supra,at D. 994.) The Nelson court reached a decision contrary to that rendered by the trial court in its statement of decision in this action, finding the dealership’s backdated contracts violated the ASFA, UCL, and CLRA. (Nelson, at pp. 1005, 1014, 1023.) The Nelson court’s decision, and the reasoning underlyingit, will be discussedat length below. On July 29, 2010, Racewayfiled a third request for entry ofjudgment, including a newly revised proposed judgment. Plaintiffs opposed the entry ofjudgment based upon the Ne/son ruling. On September 29, 2010, the trial court continued the hearing on the motion for entry ofjudgment for 45 days to allowthe Supreme Court to rule on the possible depublication of Nelson. On December10, 2010,the trial court determined that it had no choice but to follow the binding precedent of an appellate court and orderedits previous statement of decision withdrawn,stated that it was nowfinding for the plaintiffs under Ne/son, and set a hearing for January 28, 2011, to determine the proper remedy. Racewayfiled a petition for writ of mandate in this court on December 23, 2010, arguing that the trial court should be required to enter judgment in conformity withits April 16, 2010, statement of decision. We agreed, and on March 22, 2011, in an unpublished opinion, we ordered that a peremptorywrit of mandate issue, directing the 12 trial court to vacate the December 10, 2010, order that vacated its April 16, 2010, | statement of decision, and to enter a judgmentnuncpro tunc to June 10, 2010, in conformity with the April 16, 2010, statement of decision. (Raceway Ford, Inc. v. Superior Court (Mar. 22, 2011, E052543)[nonpub.opn.].) On June 27, 2011, the trial court issued a minute order vacating its December 10, 2010, order and stating that it was entering judgment nunc pro tuncto June 10, 2010,in conformity with its April 16, 2010, statement of decision. Despite this minute order announcing judgment, however, no judgment was signed andfiled by thetrial court. On July 13, 2011, plaintiffs filed a motion for new trial and a motion to vacate and enter a different judgment, treating the trial court’s June 27, 2011, minute order as a judgment. On August 19, 2011, the trial court issued a minute order denying the motions. On September 7, 2011, plaintiffs filed the notice of appeal for case No. E054517, purporting to appeal from the June 27, 201 1, minute order, as well as the denial of their motion for new trial and motion to vacate and enter a new judgment. On October 6, 2011, this court issued an order directing plaintiffs to file the signed judgment in support of their Notice of Appeal. They were unable to do so immediately, because the trial court had never signed and entered a judgment. The trial court entered a signed judgment on October 12, 2011, after an ex parte application on that date by appellants, requesting that it do so. Plaintiffs submitted the signed judgmentto this court on October 14, 2011, and on October 26, 2011, we issued an order construing plaintiffs’ appeal to have been taken from the signed judgment entered bythe trial court on October 12, 2011. 13 On June 8, 2012,the trial court filed an order granting fees and costs to Raceway (fee. order)... Plaintiffs appealed the fee order (case. No. E056595)...On July. 5, 2012, we ordered that case No. E054517 and case No. E056595 be consolidated for oral argument and decision. On July 9, 2012, Racewayfiled its cross-appeal of the fee order in case No. E056595, IV. DISCUSSION A. Standard of Review “The most fundamental rule of appellate review is that a judgmentis presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance. [Citations}” (City ofSanta Maria v. Adam (2012) 211 Cal.App.4th 266, 286 (City ofSanta Maria).) ““In general, in reviewing a judgment based upon a statement of decision following a benchtrial, “any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination ofthe trial court decision. [Citations.]” [Citation.] In a substantial evidence challenge to a judgment, the appellate court will “considerall of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]” [Citation.] We may not reweigh the evidence and are boundbythetrial court’s credibility determinations. [Citations.] Moreover,findings of fact are liberally construed to support the judgment. [Citation.]’” (Cuiellette v. City ofLos Angeles (2011) 194 Cal.App.4th 757, 765 (Cuiellette), quoting Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) When a party challenges on appeala 14 ruling that it failed to carry a burden ofproof, the substantial evidence standard is inappropriate, and “‘the question for a reviewing court becomes whetherthe evidence compels a finding in favor of the appellant as a matter of law. [Citations.]’” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465- 466 (Sonic).) “*Questions of statutory interpretation, and the applicability of a statutory standard to undisputed facts, present questions of law, which we review de novo. [Citation.]’” (Cutellette, supra, 194 Cal.App.4th at p. 765, quoting Jenkins v. County ofRiverside (2006) 138 Cal.App.4th 593, 604.) B. Backdating Claims Plaintiffs contend that Raceway’s previous practice of backdating second or subsequent contracts to the date of the original sale violates the ASFA by: (1) causing the annua] percentage rate (APR) disclosed in second or subsequentcontracts to be inaccurate; (2) purporting to require customers to payan “illegal finance charge”for the period prior to the consummation oftheir second or subsequent contracts; and (3) violating the “single document”rule (§ 2981.9) and the itemized disclosure requirements of the ASFA (§ 2982, subd. (a)). They argue that Class Oneis entitled, as a matter of law, to the remedyof rescission for Raceway’s violations of the ASFA. Plaintiffs further contend that the backdating also violated the UCL and the CLRA, and that they are entitled to judgmentin their favor on those claimsas well. For the reasons stated below, wereverse the trial court’s judgmentin favor of Raceway.on the backdating claims, but.decline.to.order.that judgment be.entered.in. favor of plaintiffs, instead remanding for further proceedings. 1. Claims Under the ASFA “Broadly speaking, [the ASFA] is a consumer protection law governing the sale of cars in whichthe buyer finances some,orall, of the car’s purchase. [Citations.]” (Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997, 1002.) The ASFA was enacted “to increase protection for the unsophisticated motor vehicle consumer and provide additional incentives to dealers to comply with the law. [Citations.]” (Nelson, supra, 186 Cal.App.4th at p. 999.) The ASFA requires that a car dealer make certain disclosures to a buyer who finances someorall of a car’s purchase, including the specific disclosures enumerated in section 2982, subdivision (a). In addition,the first, unlettered paragraph of section 2982 | requires that the car dealer also makeall disclosures required by the federal Regulation Z (12 C.F.R. § 226.1 et seq. (2014)), whether or not Regulation Z applies to the transaction.!® (§ 2982.) Amongthe itemsthat a lender must disclose under TILA and ‘Regulation Z that are not specifically enumerated in section 2982, subdivision (a), is the APR ofthe loan. (15 U.S.C. § 1638(a)(4); 12 C.F.R. § 226.18(e) (2014).) Regulation Z defines APR as “a measureof the cost of credit, expressed as a yearlyrate,” and provides the methods by which the APR maybecalculated. (12 C.F.R. § 226.22(a)(1) (2014); 12 10 Regulation Z is a regulation issued bythe Federal Reserve Board to implement the Truth In Lending Act (TILA, 15 U.S.C. § 1601 et seq.). (See Civ. Code, § 2981(m).) 16 C.F.R. § 226, appen. J. (2014).) ““APR’ ... differs from the general definition of interest rate becauseit considers, by definition, a broader range of finance charges when determining the total cost of credit as a yearly rate.” (Smith v. Anderson (4th Cir. 1986) 801 F.2d 661, 663.) In a closed-end credit transaction!! such as the car loansat issue in this case, the APRis a function of the finance charge, the amountfinanced, and the term of the transaction. (See generally 12 C.F.R. § 226, appen. J. (2014).) Calculating the APR of a transaction using an earlier date as the beginning of the term yields a lower APR than a later date, assuming noneofthe othervariables, including the end ofthe term, is changed. (See, e.g., Nelson, supra, 186 Cal.App.4th at p. 1001 [calculating APR oftransaction at issue using October 2 as beginningofterm yielded result of 21 percent; using October 8 yielded result of 21.23 percent].) Regulation Z provides that “[t]he term of the transaction begins on the date ofits consummation, except that if the finance chargeor any portion ofit is earned beginning '! TILA and Regulation Z imposedifferent disclosure requirements depending on whether the loan at issue is an “open-end credit” transaction or a “closed-end credit” transaction, Open-end credit includes “credit-card credit and revolving credit more broadly.” (Benion v. Bank One, Dayton, N.A. (7th Cir. 1998) 144 F.3d 1056, 1057: see 12 CF-R. § 226.2(a)(20) (2014).) Closed-end credit, by contrast, “means consumer credit other than ‘open-end credit.’” (12 C.F.R. § 226.2(a)(10) (2014); see also McAnaney v. Astoria Fin. Corp. (E.D.N.Y. Sept. 12, 2007) No. 04-CV-1101, 2007 U.S. Dist. LEXIS 67552, *20 [“‘A ‘closed-end credit’ transaction is one where ‘the finance charge is divided into the term of the loan and incorporated into time payments,’ and includes a completed loan like a mortgage or a car loan. [Citations.]”].) 17 on a later date, the term begins on the later date.”!?_ (12 C.F.R. § 226, appen. J(b)(2) (2014).). Consummation is defined as “the time.that.a consumer becomescontractually... obligated on a credit transaction.” (12 C.F.R. § 226.2(a)(13) (2014).) When a consumer “becomes contractually obligated on a credit transaction” (ibid.) is determined, in turn, by state law. (Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(1) (2014) [“State law governs. When a contractual obligation on the consumer’s part is created is a matter to be determined under applicable law; Regulation Z does not make this determination... .”].) In California, a vehicle sale is “deemed completed and consummated whenthe purchaser of the vehicle has paid the purchaseprice,or, in lieu thereof, has signed a purchase contractor security agreement, and has taken physical possession or delivery of the vehicle.” (Veh. Code, § 5901, subd. (d).) Importantly, however, it is not the consumer’s obligation to the sale of the vehicle that is relevant to determining the term of a credit transaction under Regulation Z. As noted, “consummation”in the meaning of Regulation Z refers to when the consumer becomes“contractually obligated on a credit transaction” (12 C.F.R. § 226.2(a)(13), italics added),)—that is, when the consumer “becomeslegally obligated to accept a particular credit arrangement.” (Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014), italics added.) A 12 A previous version of Regulation Z permitted the APR to be calculated using a term of the transaction beginning on any date when a finance charge begins to accrue underthe terms of a credit agreement, implicitly including dates prior to consummation. (12 C.F.R. § 226.40(b)(2) (1 982) [“The term of the transaction begins on the date ofits consummation, except that if the finance charge or anyportion ofit is earned beginning on someother date, the term begins on that other date... .’’].) 18 consumer’s contractual obligation to the sale may or may not coincide exactly with his obligation to a particular credit arrangement, and the two obligations are analytically separate under Regulation Z, no matter whether they coincide or not. (Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014);see also,e.g., Bragg v. Bill Heard Chevrolet, Inc. (11th Cir. 2004) 374 F.3d 1060, 1066 [consummation occurs not whentitle passes or whenbilateral contract is formed, but rather when consumer becomesobligated on the credit agreement].) Federal authority applying Regulation Z supports the proposition that, where a consumerenters into a second contract with a dealership relating to a vehicle sale, the date of “consummation”of the credit transaction associated with the second contract is generally the date of the second contract. In Gibson v. LTD, Inc. (4th Cir. 2006) 434 F.3d 275, for example, the Fourth Circuit considered a second contract for sale of the same vehicle, entered into one week after thefirst, after financing could not be obtained under the original terms. (/d. at p. 286.) Noting that the second contract contemplated an increased down payment, and therefore a changed finance charge, the court found the second contract “consummated a new finance arrangement,” requiring newdisclosuresto be made under Regulation Z before its consummation. (Gibson, supra, at p. 286.) Similarly, in Janikowski v. Lynch Ford, Inc. (7th Cir. 2000) 210 F.3d 765 (Janikowski), the Seventh Circuit analyzed two contracts between an automobile dealership and a consumer regarding the same vehicle, entered into one dayapart, after financing could not be approved on the original terms. (/d. at p. 767 & fn. 3.) The Janikowski court treated the two contracts as separate legal obligations, noting that the consumer was 19 under no obligation to purchase the vehicle on credit terms other than those described in the first contract-unti] the-second-contract was signed: --(/d: at767; fn: 3.) Thus, the trial court erred when it looked to Vehicle Code section 5901, and concludedthat “[a] rewritten contract does not generate a new consummation date under either federal or state law, . . .” commenting that “nostatute or casetells us that [the original] consummation does not continue in effect while the buyer keeps the car and the contract is rewritten... .” This reasoning inappropriately muddles together consummation of the sale with consummationofthe credit transaction. (See Official staff interpretations, 12 C.F.R. § 226, supp. I, subpt. A(2)(a)(13)(2) (2014).) There is no question that, when customers in Class Onefirst signed a contract with Raceway and took delivery of their vehicles, a sale was consummated in the meaning of Vehicle Code section 5901. And the customersalso then becamelegally committed to a particular credit transaction. They did not becomelegally obligated to the terms ofthe credit transaction embodied in their second or subsequent contract with Raceway, however, until that second or subsequent contract was signed. (See, e.g., Janikowski, supra, 210 F.3d at p. 767 & fn. 3.) Thus, the date the second or subsequent contract was signed would normally be the appropriate date to use as the beginning ofthe term for purposes of calculating the APR ofthe second or subsequent contract’s credit transaction, under the method required by Regulation Z, That was not Raceway’s practice: instead, the APR ofa second or subsequent contract would be calculated using the same dates as the initial contract. 20 Nevertheless, judgment in favor ofplaintiffs is not necessarily appropriatein all cases of backdating by Raceway. Regulation Z contemplates certain circumstances where a secondor subsequentcontract between a buyerand seller doesnottrigger any requirement for further disclosures, including with respect to APR. Asa general rule, where “an existing obligation” subject to Regulation Z “is satisfied and replaced by anew obligation undertaken by the same consumer,”it is considered to be a “refinancing,””!3 (12 C.F.R. § 226.20(a) (2014).) “A refinancing is a new transaction requiring new disclosures to the consumer.” (/bid.; see also official staff interpretations, 12 C.F.R. § 226, supp.I, subpt. C(20)(a) (2014) [“A refinancing is a new transaction requiring a complete new set of disclosures.”].) This general rule, however, is subject to five explicit exceptions, wherein an existing obligation is replaced by a new obligation undertaken by the same consumer, but the transaction nevertheless“shall not be treated as a refinancing.” (12 C.F.R. § 226.20(a)(1)-(5).) At least one of these exceptionsis potentially relevant in this case: “A reduction in the annual percentage rate with a corresponding change in the paymentschedule.” (12 C.F.R. § 226.20, subd. (a)(2).) The official staff interpretations of Regulation Z explain that “[a] corresponding changein the payment schedule to implement a lower annual percentage rate would be a shortening of '3 Racewayspills a substantial amountof ink arguing that the backdated second and subsequent contracts should be considered “lawful novations” under California law. The matter at issue, however, is not whether it was “lawful” for the parties to enter into the second or subsequentcontracts, or even howbest generally to characterize those new contracts under California law. Rather, it is whether the disclosures that were included in the second and subsequent contracts complied with the requirements of the RegulationZ, as incorporated into the ASFA. California law on “novations”is simplynot pertinentto that issue. 21 the maturity, or a reduction in the payment amountor the number of payments of an obligation.” (Official staff-interpretations, 12:C.F.R. §-226; supp: ly subptyC(20)(a)(2)~ (2014); see also Krenisky v. Rollins Protective Services Co. (2d Cir. 1984) 728 F.2d 64, 66-67 (Krenisky)[The protections extended to consumers against creditor overreaching are not compromised by non-disclosure of unilateral reductions in credit terms.”].) Thus, a second or subsequent contract entered into between Raceway and a customer regarding the same vehicle would generally be considered a “refinancing,” triggering a requirement for new disclosures. But if the second contract is identical to the first, except that the APRis reduced with a corresponding change in the payment schedule, there would be no “refinancing” in the meaning of Regulation Z, and no new disclosures would be required at all with respect to the terms of the newcontract. In addition, Regulation Z allows for a small margin of error with respect to calculation of the APR. A disclosed APR is “considered accurate” under Regulation Z if it is “not more than 1/8 of 1 percentage point above or below”the rate determined utilizing the authorized methods. (12 C.F.R. § 226.22(a)(2) (2014).) Thus, a secondor. subsequent contract that is backdated only a short period of time could conceivablyfall within the margin of error allowed by Regulation Z, even though the disclosed APR was calculated using a date earlier than the date the contract was signed. Several of the allegedly backdated contracts introduced into the record below were apparently backdated by no more than one day.!4 Moreover, we disagree with plaintiffs’ assertion that backdating imposed an “illegal finance charge” on consumers, even with respect to the second or subsequent contracts that are refinancings, and whichfall outside of the marginof error allowed by Regulation Z. Plaintiffs’ notion, adopted from Nelson, is that any finance charge accruing with respect to a second or subsequentcontract prior to the consummation date of that contract constitutes an “illegal finance charge”in the form of “preconsummation interest.” (See Nelson, supra, 186 Cal.App.4th at p. 1003.) While wetypically follow the decisions of other appellate districts or divisions, those decisions are not binding on us, and we follow them only if we lack goodreasonto disagree. (People v. Gipson (2013) 213 Cal.App.4th 1523, 1529.) As discussed below, wefind good reason to - disagree with Ne/son’s analysis, and decline to follow it in somerespects. The purpose of Regulation Z is to “promote the informed use of consumercredit by requiring disclosures aboutits terms and cost.” (12 C.F.R. § 226.1(b) (2014).) Nevertheless, with exceptions not relevant here, Regulation Z “does not generally govern charges for consumercredit.” (12 C.F.R. § 226.1(b) (2014).) Morespecifically, nothing in Regulation Z forbids interest on consumercredit contracts to be calculated as accruing 14 Indeed, it may be that noneofthe class members can showthat the disclosed APRdiffered materially from the APR as determined utilizing the authorized methods. We acknowledge Raceway’s contention at oral argumentto that effect, but we cannot decide that issue on the present record as a matter of law. Rather, it is a question offact that should be decided bythetrial court in the first instance. from a date prior to consummationofthe contract, if the parties agree among themselves to.such.a calculation.. As noted above, the current version-ofRegulation Z.requires that the “term of the transaction”usedfor purposes ofcalculating and disclosing APR must be no earlier than the date of consummation. (See 12 C.F.R. § 226, appen. J(b)(2) (2014).) It does not follow from this requirement regarding how the APR must be calculated and disclosed to the consumerthat there is any substantive limitation on the date from which interest may be calculated in the contract generally, such that “preconsummation interest” is an “illegal finance charge,”’.as Nelson would haveit. (See Nelson, supra, 186 Cal.App.4th at p. 1003.) In concluding otherwise, Nelson stretches an already thin thread ofauthority beyond the breaking point. Nelson cites Krenisky, supra, 728 F.2d at p. 67, fn. 3, and Rucker v. Sheehy Alexandria, Inc. (E.D. Va. 2002) 228 F.Supp.2d 711, 717 (RuckerJ) for the proposition that “[s]everal courts have decided that accrual dates prior to the date of consummation are prohibited.” (Nelson, supra, 186 Cal.App.4th at p. 998.) We willset aside the circumstancethat the footnote in Krenisky is dictum from a Second Circuit Court of Appeals opinion issued thirty years ago, and that this dictum had been followed in that time period precisely twice before Nelson, once in RuckerJ, and again by the same federal district court in Virginia, as part of the same case. (See RuckerI, supra, at p. 717; Rucker v. Sheehy Alexandria, Inc. (E.D. Va. 2003) 244 F.Supp.2d 618, 623 (Rucker II or, 24 collectively with Rucker I, Rucker).!5) Even these cases cited in Nelson do not support the conclusion that “preconsummationinterest” is an “illegal finance charge.” (Nelson, supra, at p. 1003.) The cited footnote in Krenisky discusses the term “accrual date” as “employed for the purposeof calculating the annual percentagerate,” not as employed for any purposerelated to a finance charge. (Krenisky, supra, 728 F.2d at p. 67, fn. 3.) Similarly, in Rucker J, the court explicitly acknowledgesthat “[s]ophisticated parties can choose monthly paymentrates and schedules which reflect the imposition of an agreed upon retroactive interest rate, provided the disclosed APRis calculated according to the regulations.” (RuckerI, supra, at p. 718, fn. 10.) Indeed, the Rucker court rejects the plaintiff's request for actual damages as measured by the amount of preconsummation interest, reasoning that, among other things, “[a]lthough the APR was not properly calculated and disclosed, [plaintiff] has not shown that the amountor timing of her payments itself violated TILA or was otherwise illegal.” (Rucker I, supra, at p. 720, fn. 16.) In RuckerI, the district court makes the point that preconsummation interest is not itself illegal or improperjust as directly as in Rucker J. The court notes that Krenisky “held that Regulation Z precludes the use of an earlier effective date when calculating an APR,” (RuckerI, supra, 244 F.Supp.2d at p. 623, italics added), but “TILA and Regulation Z do notset limits on what effective terms the parties may agree to; they merely dictate the manner in which the termsofthe credit transaction must be disclosed.” 15 RuckerLis an order denying a motionto reconsider the memorandum opinion that 1s Rucker I. 25 (/d. at pp. 625-626). Thus, in the Ruckercase, the parties “could have agreed to a -payment-schedule which-reflects.the retroactive imposition of the-agreed upon...» rate. starting on April 3 [the date to which the contract at issue was backdated]; all that TILA requires is that the disclosed APR onthe [contract] be calculated pursuantto the consummation date of April 13, not the agreed upon effective date of April 3.” (/d. at pp. 625-626.) In addition,at least one court has explicitly rejected the notion, which underpins Nelson’s analysis, that a backdated contract results in liability “preconsummation.” In Nigh v. Koons Buick Pontiac GMC, Inc. (Nigh) the Fourth Circuit considered the argumentthat, with respect to a contract entered. into.on March 5, but backdated to February 25, disclosures made on March 5 were untimely. (Nigh v. Koons Buick Pontiac GMC, Inc. (4th Cir. 2003) 319 F.3d 119, 129, revd. on other grounds sub nom. Koons Buick Pontiac GMC, Inc. v. Nigh (2004) 543 U.S. 50.) The Nigh court rejected the argument, remarking that, “though superficially clever, [it] is without merit.” (Nigh, supra, at p. 129.) Though the plaintiff “was liable for monies calculated from February 25 on, he did not become liable for, those monies until March 5, by which point he had received the material disclosures.” (/bid.) Here, similarly, plaintiffs’ backdated contracts did not cause them to pay a finance charge when no contract existed, as Nelson would have it. (Cf. Nelson, supra, 186 Cal.App.4th at p. 1003.) Plaintiffs only became liable for finance charges pursuant to their second or subsequent contract with Raceway once those contracts were signed, evenif their payments were calculated using a starting date prior to consummation. 26 We conclude that Ne/son misreads Krenisky and Rucker, as well as TILA and | Regulation Z, when it declares “preconsummationinterest to be an illegal finance charge.” (See Nelson, supra, 186 Cal.App.4th at p. 1003.) In sum, the trial court erred by ruling categorically in favor of Raceway with respect to the claims of the backdating class under the ASFA. The date the second or subsequent contracts of the membersofthe backdating class were “consummated”—as that term is used in Regulation Z and incorporated into the ASFA, and insofar asit relates to the financial arrangement embodied therein (as opposedto the sale of the vehicle)—is the date those contracts were signed. New disclosures may have been required with respect to those second or subsequent contracts, if they constituted a refinancing in the meaning of Regulation Z. And since the disclosed APR in the second or subsequent contracts was calculated using a different date as the beginning of the term—namely,the date of the correspondinginitial contract—the disclosures may have fallen outside the margin of error allowed by Regulation Z, and thereby violated the ASFA. As such, the trial court’s judgment in Raceway’s favor on plaintiffs’ ASFA claims based on backdating must be reversed. Nevertheless, we will not order that judgment be entered instead in favor of Class One, as plaintiffs have requested. We reject plaintiffs’ contention thatany interest calculated from prior 1o the actual date of signing of the backdated contracts constitutes an illegal finance charge. The only potential violation shownby plaintiffs is an inaccurately calculated APR, which would violate Regulation Z and, by virtue of Regulation Z’s incorporation by reference into the unlettered first paragraph ofsection 2 ~] 2982, would violate the ASFA. But although the disclosed APR on second or subsequent contracts of some class.:members may-have.fallen.outside the margin. oferror allowed by. Regulation Z, that may not besoforall class members. It is also possible that the only change between some class members’ initial contract and their second or subsequent contract was a lowering of the APR. Such a second or subsequent contract would not be a “refinancing”in the meaning of Regulation Z, and no additional disclosures beyond those relating to the first contract would be required. We therefore remandto thetrial court to determine in thefirst instance how best to adjudicate the case given the potentially differing circumstances of the various members of the backdatingclass,asit is currently defined,'® and to conduct any necessary further proceedings. 2. Remediesfor Violation ofASFA Assumingthat at least some members of the backdating class can show that their backdated second or subsequent contract with Racewayis a refinancing in the meaning of Regulation Z, and the APR disclosed in that contract fell outside of the margin oferror allowed byRegulation Z,thetrial court will have to determine what remedy,if any,is appropriate under the ASFA. Plaintiffs have argued that the damages should be awarded in accordance with Nelson by treating the contracts as unenforceable and ordering the remedies of rescission and restitution. We disagree with Ne/son’s analysis, and decline to follow it. 16 Amongotherthings,the trial court will have to determine whetherclass resolution ofplaintiffs’ backdating claims remains appropriate, and if so what measures—perhaps redefinition of the class, or formation of subclasses, for example— maybe neededto facilitate adjudication of the claims. 28 The Legislature added the reference to Regulation Z to section 2982 in 1981, simultaneously amending sections 2983 and 2983.1 regarding the enforceability of contracts governed by the ASFA. (Stats. 1981, ch. 1075, p. 4125, § 14, operative Oct.1, 1982; Stats. 1981, ch. 1075, pp. 4132-4133, §§ 18, 19, operative Oct. 1, 1982.) It did not specify, however, that a failure to comply with Regulation Z would also render the contract unenforceable. Under section 2983, only violations of section 2981.9, or subdivisions(a), (j), or (k) of section.2982 make the contract unenforceable: there is no mention of the incorporation of Regulation Z in the first, unlettered paragraph of section 2982. (§ 2983; see also § 2982.) As Nelson correctly notes, “(t]he language of these statutes is clear that only the violation of specific disclosure requirements renders the contract unenforceable.” (Nelson, supra, 186 Cal.App.4th at p. 1001.) As noted, Nelson finds backdated contracts between a dealership and buyer to violate section 2981.9 and subdivision (a) of section 2982, thereby rendering the contracts unenforceable under section 2983. (Nelson, supra, 186 Cal.App.4th at p. 1002.) Here we part ways with the analysis of our sister court: we find neither subdivision (a) of section 2982 nor section 2981.9 applicable. !7 First, subdivision (a) of section 2982: This subdivision lists various specific disclosures that must be included in a contract subject to the ASFA and labeled '7 Subdivisions(j) and (k) are the other provisions of section 2982, violation of which would render a contract unenforceable under section 2983. Nelson explicitly finds subdivision (j) not to apply to the dealership’s backdated contracts. (Nelson, supra, 186 Cal.App.4th at p. 1005.) No party in Ne/son, or here, has argued that subdivision (k) could apply. We agree with Ne/son regarding subdivision (j), and plaintiffs have not argued that we should do otherwise. 29 “itemization of the amount financed.” (§ 2982, subd.(a).) APR is not one of the items included-in-subdivision-(a);-as-noted, the-requirement-to disclose APR-is-included.in-the ASFA by meansofthe reference to Regulation Z in the unlettered first paragraph of section 2982. The natural conclusion, therefore, is that subdivision (a) of section 2982 is inapplicable to the alleged defect in Raceway’s backdated contracts, namely, inaccurate disclosure of APR. In reaching a contrary conclusion, Ne/son relies on the notion, which werejected above, that any interest accruing from before the consummation date of the contract is an “illegal charge.” (Nelson, supra, 186 Cal.App.4th at p. 1002.) In addition, Nelson cites Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950 (Thompson) as authority for the proposition that, even though “preconsummationinterest is not listed as a required disclosure” in section 2982, subdivision (a), the failure to separately disclose that amount nevertheless violates that subdivision. (Nelson, supra, at p. 1002.) We disagree, however, that Thompsonis fairly read to support that proposition. In Thompson, the court considered the effect of a dealership’s inclusion of “over- allowances”on trade-in vehicles. (Thompson, supra, 130 Cal.App.4th at p. 963.) “Over- allowance”refers to the difference betweenthe trade-in vehicle’s value as stated in the contract and the dealer’s evaluation of the vehicle’s value. (/d. at p. 980.) In Thompson, the dealer used over-allowancesto “manipulate numbers”to increase the likelihood the buyer would be approved for financing by third-party lenders evaluating the transaction. (Ud. at pp. 973, 977, 979-980 & fn. 21.) The Thompson court reaches the unsurprising conclusion that the use of “phantom” numbers to make a buyer appear creditworthy,r | 5 30 thereby defrauding not only lenders, but also buyers (who end up paying increased sales tax and license fees on inflated cash price amounts, and whoalso becomeobligated to pay for loans they may not otherwise have qualified for and may not beable to afford) violates the ASFA and constitutes an unfair business practice. (Thompson, supra, at pp. 961, 978-979.) The “over-allowances”at issue in Thompsonare distinguishable, however, from the inaccurately disclosed APRsat issue in Nelson and (potentially) the case at bar. The over-allowances in Thompsonrendered false other information disclosed the contracts, including the cash price of the vehicle being purchased, the value ofthe traded in vehicle, and the total downpayment—disclosures explicitly required by subdivision (a) of section 2982. (Thompson, supra, 130 Cal.App.4th at p. 979 [noting that including over- allowancesresulted in inaccurate disclosures]; see § 2982, subds. (a)(1)(A), (a)(6)(C), and (a)(6)(G).) In contrast, an APR calculated improperly in a backdated contract does not result in the propagation of inaccurate numbers throughoutthe rest of the contract. The APRis not used in deriving any information to be disclosed pursuant to subdivision (a) of section 2982. In other words, Raceway’s backdated contracts not only containall the disclosures required by subdivision (a) of section 2982, those disclosures are accurate in all respects. If anything in the contracts’ disclosures is inaccurate,it is the APR, and, as noted, APR is not one of the required disclosures listed in subdivision (a) of section 2982. We conclude, therefore, that the backdated Raceway contracts are not rendered unenforceable because of any violation of that subdivision. 3] Turning nowto section 2981.9: This section of the ASFA contains, among other things,-the “single document-rule,”requiring that.“‘all of the agreements ofthe buyer.and..... seller with respect to the total cost and the terms of payment for the motor vehicle” be contained “in a single document.” (§ 2981.9; see Nelson, supra, 186 Cal.App.4that p. 1004.) The purpose of the single documentrule is to facilitate the consumer’s review of the parties’ agreement by forbidding the potentially confusing practice of making disclosures by reference to information contained only in documents other than the contractitself. (See 92 Ops.Cal.Atty.Gen. 97, *6, 7 (2009) [“the purposeofthe single documentrule [is] the facilitation of the consumer’s review ofall of the parties’ agreements before the consumersigns the sale or lease contract, so that the consumerhas complete and accurate information.”].) The single document rule is, at bottom, a technical rule about document format——a reading buttressed by the circumstance thatit appears in a sentence dictating what font size maybe used in the contract. (§ 2981.9 [“Every conditional sale contract subject to this chapter shall be in writing and, ifprinted, shall be printed in type no smaller than 6-point, and shall contain in a single documentall of the agreements of the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle, including any promissory notes or any other evidences of indebtedness.” (Italics added.)].) It is questionable whether a formatting rule should have any applicability to alleged inaccuracies in the substance of the document. Nelson holds that a backdated second contract for a vehicle, similar to those at issue In this case, violates the single documentrule because such a document does not contain “all of the agreements of the buyer and seller with respect to the total cost and 32 the terms of payment for the motor vehicle.’” (Nelson, supra, 186 Cal.App.4th at p. 1004.) The Nelson court observes that a reviewer presented with an original contract and a backdated second contract would not be ableto tell, on the basis of the documents alone, whichis the operative contract, the date the operative second contract was actually consummated, or whether the buyer had paid a finance charge with respect to a period of time prior to consummation, (/did.) It rejects the argument that the second contract contains all the required information, because the consummation date, which is ‘‘an essential fact in calculating an accurate APR,” does not appear on the face of that contract, and the APR disclosed therein is inaccurate, so the “disclosure itselfis meaningless and the informational purpose of the ASFAis not served.” (/bid.) Weare not persuaded, because Ne/son’s reasoning is flawed in multiple respects. First, we have already rejected Ne/son’s erroneous conclusions regarding ‘“preconsummation” finance charges. Second, the purpose of the single documentrule is to facilitate the consumer’s review ofthe parties’ agreements, not review by a third party. (See 92 Ops.Cal.Atty.Gen., supra, at pp. *6-7.) A buyer signing even a backdated contract may be presumed to knowthe date that they are signing it.!8 Third, there is no specific requirement in the ASPAthatall information necessary to calculate the APR be disclosed to the buyer: section 2982—-via the incorporation of Regulation Z in the first unlettered paragraph—requires only that the APRitself be disclosed. (See § 2982; 15 '8 To be sure, it does not necessarily follow that the buyer knowsthe import of the contract’s signing date with respect to determination of the APR, under Regulation Z. (See Nelson, supra, 186 Cal.App.4th at p. 1004.) But a consumer whosigns a non- backdated contract would not necessarily have anybetter understanding. 33 U.S.C. § 1638, subd. (a)(4); 12 C.F_R. § 226.18(e) (2014).) Fourth, Nelson’s interpretation-of the single.document-rule renders a-portion-ofsection 2983 superfluous, specifically, the reference to the disclosure requirements listed in subdivision (a) of section 2982. (See § 2983, subd. (a) [violation of any provision of § 2982, subd. (a), renders contract unenforceable]; People v. Isaac (2014) 224 Cal.App.4th 143, 148 (“Statutory interpretations rendering ‘“any part of a statute superfluousare to be avoided.”” [Citation.]”].) Ifa contract containing an inaccurate disclosure necessarily violated the single document rule, as Ne/son suggests—in addition to whatever provision requires the disclosurein the first instance—any provisions regarding specific disclosure requirements included in section 2983 would have nosignificance, because the contract would be unenforceable anyway for violating the single documentrule, Moreover, Ne/son’s interpretation of the single documentrule stretches a rule that on its face deals with format of a contract into a rule governing the accuracy of the substanceofthe disclosures contained in the contract, while citing no authority in support of that expansive interpretation. (See Ne/son, supra, 186 Cal.App.4th at pp. 1004-1005.) The only case cited in Nelson's discussion of the single documentrule is Rucker J. (Nelson, supra, at p. 1004.) But the portions of Rucker / cited therein consist of language cherry-picked fromdiscussions ofpolicy reasons underlying Regulation Z, and policy concerns raised by“the combination ofspot delivery contracts and the industry practice of backdating documentsto the original delivery date” and “yo-yo” sales schemes. (RuckerI, supra, 228 F.Supp.2d at pp. 717-719.) Nothinglike the single documentrule is discussed anywhere in Rucker. La d t s In short, we concludethatsection 2981.9 is not implicated by the potentially inaccurate disclosures of APR caused by Raceway’s backdating of second or subsequent contracts. The single documentrule governs the format ofthe contract, not its substance, and wereject Ne/son’s interpretation to the contrary as unpersuasive. Having decided that neither section 2981.9 nor subdivision (a) of section 2982is violated by the inaccurate APR disclosures potentially at issue in this case, and therefore the contracts are not rendered unenforceable by section 2983, the question remains what remedy maybeavailableto plaintiffs. It is not apparent that the ASFA provides any remedyat all. (See Nelson, supra, 186 Cal.App.4th at pp. 1001-1002 [we cannot say that the failure to afford a remedy[for a violation of Regulation Z] resulted from a legislative oversight.”’].) The ASFA does not provide for statutory damages, and onits face provides for recovery of actual damagesonly for specific violations, not applicable here. (See, e.g., § 2983, subd. (b) [buyer entitled to actual damages sustained for violations of § 2982, subd. (a)(2) or (5)]; § 2983.1, subd. (e)].) In any case,the only evidence of purported actual damages submitted by plaintiffs consisted of evidence they paid “preconsummation interest.” We concluded above that “preconsummation interest” is neither illegal nor improper under Regulation Z, so “preconsummationinterest” does not constitute damages.!9 '9 Rucker J states that, absent a showing thata plaintiff not only read the disclosuresat issue, but also “would have negotiated further or shopped around forbetter credit terms had the APR been properly presented,” and further would have obtained better credit terms, a plaintiff cannot recover actual damages for inaccurate APR disclosures under TILA. (Rucker I, supra, 228 F.Supp.2d at p. 720.) But we need not, [footnote continued on next page] 35 Furthermore,plaintiffs (unlike the plaintiff in Rucker) asserted no claim under TILA, so. the.statutory damages. available under federal law for violations of the APR disclosure requirement governed by Regulation Z are unavailable to plaintiffs here. (See Rucker I, supra, 228 F.Supp.2d at p. 720 {discussing 15 U.S.C. § 1640, providing statutory damagesfor violation of APR disclosure requirementset at twice the amount of the finance charge in connection withthe transaction, bounded by a statutory minimum of $100 and a statutory maximum of $1,000].) Nevertheless, plaintiffs did bring claims under other provisions of California law besides ASFA. Wetherefore turn now to Class One’s CLRA and UCLclaims. 3. CLRA Claims The CLRA lists various proscribed “unfair methods of competition and unfair or deceptive acts or practices.” (§ 1770, subd. (a).) On appeal, plaintiffs argue, based on Nelson, that Class Oneis entitled to judgment in its favor on its CLRA claims because the backdated contracts at issue fall within the ambit of section 1770, subdivision (a)(14): “Representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.”2 (§ 1770, subd. {footnote continuedfrom previous page] and do not decide here whether a similar standard should apply under the ASFA: absent a showing of damages,it is not necessary to determine whether those damages were proximately caused bythe alleged violation. 20 The SAC makesreference to other provisions of section 1770, subdivision (a), besides subdivision (a)(14). Nevertheless, plaintiffs have made no argument on appeal based on these other subdivisions. As such, we need not, and do not, consider their applicability, because any claims based thereon are waived. (See Paulus v. Bob Lynch {footnote continued on next page] 36 (a)(14).) We disagree, and affirm the trial court’s judgment in Raceway’s favor on Class One’s CLRA claims. In Nelson, the court concluded that a dealership violates section 1770, subdivision (a) by entering into backdated second contracts that disclose inaccurate APRs because, by doing so, the dealership represents that it has the “legal right to collect finance charges effective [the date of the original contract], an obligation prohibited by Regulation Z.” (Nelson, supra, 186 Cal.App.4th at p. 1023.) As noted above, however, we disagree with Nelson’s conclusion “preconsummation interest” constitutes an “obligation prohibited by Regulation Z.” (/bid.) Regulation Z governs how APRisto be calculated and disclosed to the consumer;it does not prohibit the parties from contracting for interest to be calculated from a date prior to the consummation ofthe contract. As such, plaintiffs’ assertion they “were obligated to pay a finance charge they were not obligated to pay”is incorrect. Nor do the contracts at issue involve an obligation that is “prohibited by law.” (See § 1770, subd. (a)(14).) We therefore affirm the trial court’s judgment in favor of Raceway with respect to Class One’s claims under the CLRA, and need not consider what remedies might be available to plaintiffs under the CLRA. 4. UCL Claims The UCL “borrows”violations of other laws andtreats them as “unlawful... business act[s] or practice[s]” that the UCL makes independently actionable. (Bus. & [footnote continuedfrom previous page] Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [failure to raise an issue in opening brief and support it by argumentor citation to authority waives the issue].) 37 Prof. Code § 17200; see Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.(1999) 20.Cal.4th.163, 180.). “After the 2004 amendment of.the-UCL by. Proposition 64, a private person hasstanding to sue only if he or she ‘“has suffered injury in fact and has lost moneyor property as a result of [such] unfair competition.” | [Citation.]” (Nelson, supra, 186 Cal.App.4th at p. 1013.) “In the context of a class action, only the class representatives must meet Proposition 64’s standing requirements of actual injury and causation. [Citation.]” (/bid.) Assumingthat at least some members of Class One can showthat their second or subsequent contracts with Raceway were refinancings, requiring new disclosures, and the disclosed APRfell outside the margin of error allowed by Regulation Z, then there would be little question Raceway committed an “unlawful ... business act or practice” in the meaning of the UCL. (Bus. & Prof. Code § 17200.) Nevertheless, Class One’s UCL claims falter on the requirement that they demonstrate standing, as required by Proposition 64, Plaintiffs, following Nelson, contend that they have standing to bring UCLclaims, based on their payment of “preconsummation interest.” (See Nelson, supra, 186 Cal.App.4th at p. 1014.) Again, however, we reject Ne/son’s conclusion that “preconsummation interest”is illegal or prohibited, so such payments do not constitute an injury. Plaintiffs have not proposed anyother theory whereby Class One suffered an injury in fact resulting from the backdated contracts at issue, let alone any theory of causation. Wetherefore affirm the trial court’s judgment in favor of Raceway on Class One’s UCLclaimsonthe basis thatplaintiffs have not demonstrated standing fortheir UCLclaims, and we need not consider what remedies might be available to plaintiffs under the UCL. 5. Conclusion It is possible that Raceway violated the ASFA with respect to at least some members of Class One, namely, those whose second or subsequent contracts with Raceway constitute “refinancings”(as that term is defined in Regulation Z) and disclose APRs that are outside of the margin oferror allowed by Regulation Z. If so, however, contra Nelson, that does not render the contracts unenforceable, because neither section 2981.9 nor subdivision (a) of section 2982 is implicated by such inaccurately disclosed APRs. The ASFA—unlike TILA—does not provide for statutory remedies, and plaintiffs’ only theory of actual damages presentedin the litigation relies on Nelson’s analysis of “preconsummation interest” that we have rejected. Plaintiffs’ claims under the CLRA and the UCL, which might otherwise provide additional remedies besides those authorized by the ASFA,fail because plaintiffs have not demonstrated Raceway engaged in any ofthe acts proscribed by the CLRA, nor shownstanding to bring a UCL claim. Thus, even if Class One (or some subsection thereof) is able to demonstrate a verdict in its favor on its ASFA claimsis appropriate, only a symbolic judgment unaccompanied by any specific remedy would be available in these circumstances. It is worth noting here, however, that further adjudication ofthe merits of Class One’s ASFAclaimsis not necessarily an idle exercise, even if no substantial monetary or other remedyis available to plaintiffs. The trial court previously awarded attorney fees and costs in the amount of $1,503,084.50 to Racewayas the prevailing party underthe 9ta ASFA. (See § 2983.4 [“Reasonable attorney’s fees and costs shall be awardedto the prevailing. party im-any.action.on.a-contract.....,.subject.to.the.provisions.ofthis. chapter... .”].) A judgmentin favorof plaintiffs—even a symbolic judgment unaccompanied by an award of monetary damages or other remedy—would necessarily alter the trial court’s “prevailing party” analysis. C. Smog Fee Claims Amongthe items that the subdivision (a) of section 2982 requires to be disclosed are “[t]he fee charged bythe seller for certifying that the motor vehicle complies with applicable pollution control requirements,” and “[t]he amount of the state fee for issuance of a certificate of compliance, noncompliance, exemption, or waiver pursuant to any applicable pollution control statute.” (§ 2982, subds. (a)(1)(C) & (a)(4).) The members of Class Two were charged such fees as a result of a computer error, even though, as purchasers of used diesel vehicles, no smog check was performed by Racewayon their vehicles, nor was anystate fee for smogcertification necessary.*! Plaintiffs contend that 21 Since January 1, 2010, diesel vehicles meeting certain requirements have been required to undergo smog inspections and obtain smogcertification similar to those required of gasoline vehicles. (Health & Safety Code § 44011, subd. (a)(8), added by Stats. 2007, ch. 739, § 3, operative Jan. 1, 2010.) During the time period at issue in this case, however, such requirements were imposed only on gasoline vehicles, and Raceway agrees the smog-related fees should not have been charged. Plaintiffs suggest the cynical view that the “computer error” could have been “‘just a schemeto see how manyillegal charges can be slipped into deals before someone catches on,” but the trial court made the factual finding that there was no such scheme, only a “bona fide error.” We have no cause to disturb that finding. 40 the erroneous charges resulted in Raceway violating subdivision (a) of section 2982.22 Thetrial court entered judgment in favor of Raceway, apparently agreeing that the ASFA had been violated, but concluding that Raceway had cured the violation: “Racewayis not legally required to do more to correct its erroneouscollection of smog fees.... The court findsit to have been a bonafide error corrected with full refundsplusinterest within a reasonable time under the Automobile Sales Finance Act.” We agree with the trial court’s result, but not its reasoning: Wefind no violation of the ASFA by Raceway with respect to Class Two. The ASFArequires “full disclosureof all items of cost,” including the items specifically enumerated in subdivision (a) of section 2982. (Thompson, supra, 130 Cal.App.4th at p. 966; § 2982, subd. (a).) Plaintiffs argue that Racewayviolated this requirementby failing to “accurately disclose the amount due from the class members” with respect to smog fees. This is not quite true, however, if by “amount due” is meant “the amount due pursuant to the transaction agreed to by the parties.” There are no hidden, undisclosed costs in the contracts entered into by the members of Class Two; the amounts charged for smog-related fees were accurately and explicitly stated in writing, 22 Plaintiffs further argue in their reply brief that Racewayalso violated the single documentrule codified in section 2981.9 by charging the smog-related fees to the members of Class Two. This argument was waived, however, by plaintiffs’ failure to raise it in their opening brief. (Badie v. Bank ofAmerica (1998) 67 Cal.App.4th 779, 784-785 [When an appellantfails to raise a point, or asserts it but fails to support it with reasoned argument andcitations to authority, we treat the point as waived.”].) In any case, the argumentis without merit, for the same reasons as discussed abovein relation to application of the single documentrule to backdated contracts disclosing an inaccurately calculated APR. 4) and the terms of the deal, including the smog fees, were accepted by the customers when they-signed.their contracts...The-only-purported-“inaccuracy””-is. that, the-parties.agree, if they had more closely considered the provisions regarding smog-related fees at the time ofthe transaction, the contract they agreed to enter into would have been different. The question we must answeris whether section 2982 governsthis sort of circumstance. We concludeit does not. Like the single documentrule, discussed above, section 2982 governs the “formalities” of contracts, not their substance. (See § 2982 [entitled “Formalities of conditional sale contracts”].) Subdivsion (a) of section 2982 requires a comprehensive “itemization of the amount financed,” with specific disclosures that must be made in the contract. (§ 2982, subd. (a).) Ifthe disclosures are made, and are true in the sense of accurately describing the terms of the parties’ agreement, then the contract comports with the requirements for the “formalities” of conditional sale contracts. The authority cited by plaintiffs does not require the conclusion that Raceway violated the ASFA because of the charges accurately described, but erroneously included in the contracts between Raceway and the members of Class Two. Authority addressing contracts that do not accurately describe the parties’ agreementis not on point here. In Nelson, for example, the improperly calculated APR figure disclosed in the contracts at issue provided false information about the transaction—specifically, the cost of credit expressed as a yearly rate—to the consumer.” (Nelson, supra, 186 Cal.App.4th at p. 23 As discussed above with respect to Class One. we agree with Nelsonthat disclosure of an inaccurate APR violates section 2982, though wedisagree about [footnote continued on next page] 42 1005.) In Bratia v. Caruso Car Co. (1958) 166 Cal.App.2d 661, the contract at issue recited that the consumerhad paid a cash down payment, but in fact only a promissory note for the amount of the down payment had been executed. (/d. at pp. 664-665.) Most egregiously, the disclosures in Thompson, incorporating “phantom” numbers designed to mislead potential lenders, among others, did not come close to describing the true transaction between dealer and buyer. (Thompson, supra, 130 Cal.App.4th at p. 961.) In contrast, the contracts between Raceway and the membersof Class Two accurately disclose the economics of the transaction agreed to by theparties in all respects. To besure, a primary goal of the ASFA’s disclosure provisionsis to “protect purchasers against excessive charges... .” (Kunert v. Mission Financial Services Corp. (2003) 110 Cal.App.4th 242, 248 (Kunert).) The ASFA attempts to achieve that goal in a specific manner, namely, “by requiring full disclosure of all items of cost.” (Kunert, supra, at p. 248.) Here, despite full disclosure ofall items of cost, the members of Class Two were charged fees that the parties now agree should not have been charged, so the goal of protecting purchasers from excessive charges was notinitially achieved. It does not follow, however, that the “informational purpose of the ASFA [was] not served.” (Nelson, supra, 186 Cal.App.4th at p. 1005.) We disagree that a contract can disclose accurately every dollar that is part of a transaction agreed to bythe parties, and nevertheless constitute a violation of ASFA disclosure provisions. The members of Class [footnote continuedfrom previous page] precisely which part ofthe statute is implicated, and therefore what remedyis available for the violation. 43 Tworeceived al] the information that the ASFA required them to receive; among other things, they-were informed,-in-writingy how-much-they-were-being-charged for smog- related fees. Theyjust did not act onthat information byverifying that all of the listed charges were appropriate prior to signing.*4 Our conclusion—that section 2982, subdivision (a) is not violated in the circumstancesofthis case, so the trial court’s judgment in Raceway’s favor with respect to the claims of Class Two should be affirmed—doesnot leave other vehicle buyers who are charged inappropriate fees by dealerships without redress. It seems likely that one or another provision of California statutory or common law would provide such consumers a remedy—albeit perhapsnot the rescission and restitution sought by plaintiffs under the ASFA—especiallyif, unlike Raceway, the dealership at issue was not forthcoming with payment of refunds, or had charged inappropriate fees with fraudulent intent. Class Two, however, asserts only a claim underthe ASFA: plaintiffs did not appealthe trial court’s denial ofclass certification for Class Two’s UCLclaims, and did not assert any claims under other legal or equitable theories. We neednot consider here, therefore, what other claims might have been brought onthese, or similar, facts. In addition, because we conclude plaintiffs failed to demonstrate any violation of the ASFA with respect to Class 24 This is not to say that blame for the improper charges should be placed on the consumer. Of course, Racewayerred by charging inappropriate fees, and that error is ultimately Raceway’s responsibility. Nevertheless, both Raceway and the membersof Class Two missed an opportunity to catch theerrors in the first instance, by carefully reviewing all items of cost listed in the contract prior to signing. And the question of whether Racewaywasin the wrong for charging the fees is a separate question from whether the ASFA’s disclosure provisions were violated. 44 Two, we need not considerthe parties’ arguments with respect to whether Raceway successfully cured anyviolation. D. Credit Application Claims It is undisputed that Raceway had a policy ofproviding each customer a copy of any credit application made during the course of negotiations, as required by the ASFA. (See § 2981.9.) Certain individualplaintiffs, however, assert that this policy was not implemented in their case—that they did not receive copies of their credit applications from Raceway. Thetrial court ruled in favor of Raceway on the issue. On appeal, plaintiffs contend that Raceway’s evidence of a policy or practice is insufficient as a matter of law to overcomethe “transaction-specific testimony”of the individual plaintiffs whotestified that they did not receive copies of their credit applications. They additionally contend—somewhat half-heartedly—thatthe trial court’s decision was “based on an incorrect legal basis.” We disagree with both of these contentions. The ASFArequires that, prior to delivery of a vehicle to a buyer pursuant to a contract subject to that chapter, the seller must provide the buyer certain documents, including a copy of “any credit statement whichthe seller has required or requested the buyer to sign and which heorshe has signed during the contract negotiations.” (§ 2981.9.) The trial court ruled that plaintiffs “failed to meet their burden of proof” with respect to their claim that Raceway had violated this provision of the ASFA, explaining that “no credit applications were needed or required with the second contract, and there was competent but conflicting evidence presented on both sides ofthe issue as to whether copies were provided with the first contract.” 4$ Plaintiffs’ argument regarding the “legal standard” applied by thetrial court is quickly. dispatched... Plaintiffs.assert that “[t]o the extentthe.trial.court.based its.decision on whethera credit application was required solely for the second contract, the decision was based on an erroneouslegal standard.” This argument, however, only knocks down a straw man: the trial court applied no such standard. Thetrial court made the (undisputed) factual finding that consumers whoenteredinto second or subsequent contracts with Raceway were not required to submit new credit applications, so there could have been no violation of section 2981.9 with respect to those contracts.25 Thetrial court further foundplaintiffs failed to establish any violation of section 2981.9 with respect to plaintiffs’ initial contracts with Raceway. As noted, Raceway presented testimony establishing it hada policy and practice to provide each customer.a copy of any credit application. Suchtestimonyis circumstantial evidence supporting the conclusion that, in any given instance, the customerdid in fact receive a copy. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 (Hasson) [“the fact that evidence is ‘circumstantial’ does not mean thatit cannot be ‘substantial’”].) Thetrial court acknowledgedthat plaintiffs submitted competent evidence to the contrary, but found plaintiffs did not prove their case by a preponderanceofthe evidence. Plaintiffs contend the “transaction-specific’” testimonyofindividualplaintiffs that the policy was not followed in their particular cases should have been given controlling *5 To the extentthe trial court’s languagein its Statement of Decision may be viewed as ambiguous, we here resolve that ambiguity in favorofaffirmance. (City of Santa Maria, supra, 211 Cal.App.4th at 286.) 46 weight. We disagree. It is hornbook Jaw that a trier of fact is “entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony. [Citations.]” (Hasson, supra, 19 Cal.3d at p. 548; see also CACI No.202 [“Asfar as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind.”].)The trial court was entitled as the trier of > oefact in this case to give whatever weight it chose to plaintiffs’ “transaction-specific” testimony—including noneat all—and we will not reweigh the evidence here. (See Cuiellette, supra, 194 Cal.App.4th at p. 765.) Plaintiffs’ evidence does not compel a conclusion in their favor as a matter of law, so the trial court’s finding that they did not meet their burden of proof with regard to the alleged violations of section 2981.9 will be affirmed. (See Sonic, supra, 196 Cal.App.4th at pp. 465-466.) E. Individual Claims of Francisco Salcedo Asnoted,the trial court found Raceway liable for common law fraud with respect to Mr. Salcedo, because it misrepresented that he “could not refuse to sign a second contract and unwindthe transaction,” when Raceway was unable to assignhisinitial contract for purchase of a vehicle. Mr. Salcedo also asserted individual claims under the UCL and CLRA,based on the same fraudulent misrepresentations by Raceway. Thetrial court never explicitly ruled on Mr. Salcedo’s UCL and CLRA claims, although the parties and the court apparently understood the court’s judgment on those claims to be in favor of Raceway. Plaintiffs contend that, as a matter of law, the samefacts that established judgment should be entered in Mr. Salcedo’s favor on his common law fraud 47 claim also establish a violation of the UCL and CLRA,soheis entitled to judgmentin his favor-on- those claims;-as-well...We-agree. Both the UCL and the CRLAprovide remedies in addition to other remedies or procedures under California Law. (See Bus. & Prof. Code, § 17205 [UCL is “cumulative ... to the remedies or penalties available underall other lawsofthis state”); Civ. Code, § 1752 [CRLA remedies “are not exclusive,” but rather “in addition to any other procedures or remedies for any violation or conduct provided for in any other law”].). It is uncontroversial that a business practice that meets the standard for liability for common law fraud would also suffice to establish liability under the “unlawful” or “fraudulent” prongs.of the UCL (evenif the converse may notbe true). (See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 [allegations of actual deception, reasonable reliance, and damage are unnecessary for UCL claim]; id. at pp. 209-210 [Bus. & Prof. Code, § 17200 “is not restricted to deceptive or fraudulent conduct but extends to any unlawful business practice’’|.) Similarly, Raceway’s false representation to Mr. Salcedo that he wasobligated to purchase an alternative vehicle, and could not unwindthe transaction, violates the CRLA’s prohibition on “[rjepresentingthat a transaction ... involves... obligations which it does not have or involve, or whichare prohibited by law.” (Civ. Code, § 1770, subd. (a)(1 4). Indeed, though Racewayneverexplicitly concedes the point, neither does it offer any argument whythe elements of Mr. Salcedo’s individual UCL and CLRA claims might not have been established, even though he did prove commonlawfraud. Instead, A8 Raceway’s responseis, in essence, that Mr. Salcedois not entitled to any further remedies, since he was already granted rescission. The issue of remedies, however,is a separate question from whether Mr. Salcedois entitled to judgmentin his favor. Nevertheless, it is not implausible that Mr. Salcedo should not be awarded any additional remedies. He already has been awarded damagesin the form of rescission and restitution, and the trial court has already determinedthat he is not entitled to punitive damages. The UCL provides only injunctive, restitutionary and related relief. (Bus. & Prof. Code, § 17203.) The CRLA provides for a broader range of remedies, but prior to trial plaintiffs stipulated that they brought their CRLAclaims“for injunctive reliefonly.” (Original italics.) Moreover, it seems unlikely that injunctive relief would be appropriate, given that the record is devoid of any evidence of similar misrepresentations to other customers, or any other indication that the misrepresentations to Mr. Salcedo were anything other than a one-time event. In any case, the issue of remedies is one that should be decided by thetrial court in the first instance. Here,it is not apparent from the record that the trial court ever considered whether Mr. Salcedo might be entitled to any additional remedies, based on his individual UCL and CLRAclaims, over and above those awarded for his common law fraud claim. On remand,the trial court should enter judgment in Mr. Salcedo’s favor on his individual UCL and CLRA claims, and determine—explicitly, and on the record— what remedy, if any, Mr. Salcedo should be awarded with respect to those claims. Mr. Salcedo also should be treated as the prevailing party not only with respect to his fraud 49 claim, but also his individual UCL and CLRA claims, for purposes of determining any award of attorney.fees.and.costs. F. Fee Order Our ruling here with respect to plaintiffs’ appeal of the judgment below undermines the basis for the trial court’s award of fees to Raceway, namely, the proposition that Raceway prevailed on all claims asserted by plaintiffs except for Mr. Salcedo’s fraud claim. As such, we need notaddressthe merits of the argumentsraised by the parties in plaintiffs’ appeal and Raceway’s cross-appeal of the fee order: the fee order must be vacated, and the issue of attorney fees and costs remanded for reconsideration following final adjudication ofall claims. V. DISPOSITION In case No. E054517, the judgment belowis affirmed in part and reversed in part as follows: ~ With respect to Class One’s causeofaction for violation of the ASFA,the judgmentis reversed, and the matter remandedto thetrial court for any further proceedings necessary to determine whether the members of Class One, or some subsection thereof, can establish a violation of the ASFA under the law as explicated in this opinion. - With respect to Class One’s UCL and CLRA causesof action, the judgmentis affirmed, ~ With respect to Class Two’s claims under the ASFA,the judgmentis affirmed. a n > - With respect to the claimsofplaintiffs Carl Stone, Deborah Stone, Francisco Salcedo, Anselmo Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott, MarthaOtt, Eldridge Johnson, Randal Kidd, Macon Pollard, Ozetta Pollard, and Suzanna Moreno under the ASFA in their individual capacities regarding their credit applications, the judgmentis affirmed. - With respect to the causes of action asserted by plaintiff Francisco Salcedo under the UCL and the CLRA in his individual capacity, the judgmentis reversed; the trial court is directed to enter judgment in favor of Mr. Salcedo on those causes of action, and to determine what additional remedies, if any, other than those he has already been awarded with respect to his cause of action for common law fraud, he should receive. - The judgmentis affirmed in all other respects. In case No. E056595,the tria] court’s fee order is vacated, and the matter of an award ofattorney fees and costs remanded for determination bythetrial court, after final adjudication ofall claims. The parties shall each bear their own costs on appeal. CERTIFIED FOR PUBLICATION HOLLENHORST We concur: RAMIREZ PJ, RICHLI PROOF OF SERVICE (Sections 1013a, 2015.5 C.C.P.) RACEWAYFORD CASES Court ofAppeal, State ofCalifornia, Fourth Appellate District, Division Two Case No.: E056595 Riverside Superior Court Case No.: JCCP4476 I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action. My business address is: 10085 Carroll Canyon Road, Suite 100, San Diego, California 92131. On October27, 2014, I served the foregoing document(s) described as: PETITION FOR REVIEW on the interested parties in this action at San Diego, California: [X] BY OVERNIGHT DELIVERY:I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses below. I caused such envelope or package to be deposited in a regularly utilized drop box of the overnight delivery carrier. [X] BY U.S. MAIL: I enclosed the documents in a sealed envelopeor package addressed to the personsat the addresses listed on the attachedlist and: (1)[ ] deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) [X] placed the envelopefor collection and mailing, following our ordinary business practices. I am readily familiar with the business’s practice for collecting and processing correspondence for mailing. Under that practice, on the same day that correspondenceis placedfor collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage thereon fully prepaid, at San Diego, California. Iam aware that on motionofthe party served,serviceis presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X] (STATE) declare under penalty ofperjury under the lawsofthe State of California that the aboveis true and correct. Executed on October 27, 2014, at San Diego, California. an AK 4 Lisa M.Tyler ) Raceway Ford Cases RACEWAYFORD CASES Court ofAppeal, State of California, Fourth Appellate District, Division Two Case No.: E056595 Riverside Superior Court Case No.: JCCP4476 SERVICE LIST OF INTERESTED PARTIES VIA OVERNIGHTDELIVERY Kellie S. Christianson, Esq. [1] Copy . ATKINSON, ANDELSON, LOYA, RUDD & ROMO 20 Pacifica, Suite 400 Irvine, California 92618 Attorneys for Defendant RACEWAY FORD,INC. VIA OVERNIGHTDELIVERY MichaelS. Geller, Esq. [1] Copy LAW OFFICE OF MICHAEL GELLER, INC. 1130 Palmyrita Avenue, Suite 330A Riverside, CA 92507 Attorney for Defendant RACEWAY FORD,INC. VIA US MAIL ONLY 4TH DISTRICT COURT OF APPEAL [1] Copy Division 2 3389 Twelfth Street Riverside, CA 92501 VIA US MAIL ONLY SUPERIOR COURT OF CALIFORNIA [1] Copy County of Riverside 4050 Main Street Riverside, CA 92501 VIA US MAIL ONLY OFFICE OF THE DISTRICT ATTORNEY [1] Copy Riverside County 3960 Orange Street Riverside, CA 92501 Service Pursuant to Business & Professions Code § 17209 -2- VIA US MAIL ONLY Appellate Coordinator [1] Copy OFFICE OF THE ATTORNEY GENERAL Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 Service Pursuant to Business & Professions Code § 17209