Preview
nag
Scott R. Kaufman, SBN 190129
fanaa
Kevin Faulk, SBN 224711
WN
California Lemon Lawyers
1400 Coleman Ave., Suite F-21
Santa Clara, California 95050
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Telephone: (408) 727-8882
Facsimile :(408) 727-8883 MAR 1 2 2007
F&F
Attorney for HEMMER, Plaintiff
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THE SUPERIOR COURT
CLERK OE pus
By 7 Deputy
ND
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE ALAMEDA
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THOMAS HEMMER, an individual, Case Number HG05214517
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95050
Plaintiff,
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573-9888
VS. SUPPLEMENTAL TRIAL BRIEF
NO
me
CALIFORNIA
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SUBURBAN AUTO BROKERS, INC., a
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a
LEMON
corporation, AFZAL AKBAR, an
(408)
AVE,,
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individual, KEITH AKBAR, an individual,
—
PLATTE RIVER INSURANCE
COLEMAN
TELEPHONE:
ran
CLARA,
CALIFORNIA
COMPANY, and Does One through Ten,
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—
1400
Defendants.
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SANTA
ay
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AND RELATED CROSS-COMPLAINT
—"
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—
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Defendants Waive Any and All Defenses Not Timely Brought.
F§|§
No
Suburban’s alleges non-compliance with Civil Code §1782 for the very first time
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in its trial brief. Suburban failed to raise the alleged non-compliance as an affirmative
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defense in its answer to the initial complaint, in its answer to the first amended complaint,
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No
in its answer to Hemmer’s cross complaint, and did not raise the issue in its answer to the
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second amended complaint. Suburban also failed to make any dispositive motions
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raising the issue as an affirmative defense. Now, on the eve of trial, defense raises this
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issue for the first time, in itstrial brief, and in doing so, waives the defense.
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SUPPLEMENTAL TRIAL BRIEF
@ @
1 Suburban states that Hemmer’s alleged failure to fully comply with Civil Code
2 | §1782 constitutes a missing “essential element” of his CLRA claim. Suburban offers no
3 || mandatory authority for that proposition. In fact, non-compliance with Civil Code §1782
4 || is clearly is an affirmative defense Suburban has waived for failure to timely raise.
5 The Consumer Legal Remedies Act statutory scheme breaks down into four parts
6 || as follows: (1) Civil Code §§ 1750-1756, General Provisions; (2) Civil Code §§ 1760-
7 || 1761, Construction and Definitions; (3) Civil Code § 1770, Deceptive Practices; and (4)
g || Civil Code §§ 1780-1784, Remedies and Procedures. Defense argument on Civil Code §
9 || 1782, comes from CLRA’s “Remedies and Procedures” prong. Neither a remedy nor a
10 || Procedure is part of making a prima facie case under any statute. Therefore, Suburban’s
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f ; 2 a notice argument, if itis to fly, must be brought as an affirmative defense.
Zi i < rm) The Outboard Marine case cited in defense counsel’s trial brief isthe only
. 5 E B mandatory authority in California that comes close to being on point. It also goes into
: : f $ 14 depth on the topic of waiver. The case states “unless otherwise provided by law, any
, z o i 4s person may waive the advantage of a law intended for his benefit. Civil Code § 3513.
Z 3 : : 16 Waiver is the voluntary relinquishment of a known right. [Bohlert v. Spartan Insurance
2 : : a UW Company (1969) 3 Cal.App. 3d 113, 118, 83 Cal-Rptr. 515; Outboard Marine at p. 41.]
S = 18 Outboard Marine goes on to state, “To constitute a waiver, itis essential that there
be an existing right, benefit, or advantage, a knowledge, actual or constructive, of its
” existence, and an actual intention to relinquish it ‘or conduct so inconsistent with the
“8 intent to enforce the right in question as to induce a reasonable belief that it has been
21 relinquished.’” Suburban conducted itself in a manner inconsistent with the intent to
22 enforce this alleged right. Suburban failed to raise the alleged non-compliance issue until
23 the eve of trial, appearing to challenge the action on itsmerits all along. Suburban’s
24 strategy induced more than reasonable belief that the (alleged) right was relinquished.
25
26 || Hemmer’s Notice Was Not Deficient.
27
2g || Civil Code §1782(d) Specifically Allows Hemmer To Bring This Action Without The
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SUPPLEMENTAL TRIAL BRIEF
Complained Of Civil Code §1782(a) Notice:
—
NY
Civil Code §1782 states in pertinent part:
BW
(a) “Thirty days or more prior to the commencement of an
action for ‘damages’ pursuant to this title, the consumer
Se
shall do the following...” (Emphasis added.)
A
(d) “An action for injunctive relief brought under the specific
ND
provisions of Section 1770 may be commenced without
compliance with subdivision (a).” (Emphasis added.)
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Civil Code § 1780 states in pertinent part:
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(a) Any consumer who suffers any damage as a result of the
So
—
use or employment by any person of a method, act, or practice
LAWYERS
95050
be
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declared to be unlawful by Section 1770 may bring an action against
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that person to recover or obtain any of the following:
573-9888
NO
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CALIFORNIA
(2) An order enjoining the methods, acts, or practices.
SUITE
(3) Restitution of property.
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(408)
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(4) Punitive damages.
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(5) Any other relief that the court deems proper.
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COLEMAN
TELEPHONE:
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CLARA,
CALIFORNIA
(d) The court shall award court costs and attorney's fees to a
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prevailing plaintiff in litigation filed pursuant to this section.
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17 (Emphasis added.)
SANTA
18
19 Suburban’s trial brief cites a non-published Federal case, a non-binding
50 authority, Turunen v. Elite Auto Body for the proposition that Hemmer’s Civil Code
1 § 1782 notice was deficient. Suburban failed to supply a copy of the unpublished
9 decision. The only prohibition stated in Civil Code § 1782(a) with regard to the 30 day
waiting period for bringing an action is against bringing an action for “damages.”
*° Counsel for ALL defendants argues in his trial brief that “Civil Code §1782 requires that
“a in order to commence ‘an action’ under its provisions, that the consumer must, 30 or
2 more days prior to the commencement of the action, notify the person alleged to have
26 committed a violation of the Act.”
27 The clear language of the statute states that “Thirty days or more prior to the
28
commencement of ‘an action for damages’ ... Outboard Marine states, “Plaintiff had
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SUPPLEMENTAL TRIAL BRIEF
failed to demonstrate compliance with the 30-day letter, a mandatory prerequisite to
—
‘damage actions’ under [the CLRA.” (Id. at 41.) Ifthe court finds it appropriate,
NO
plaintiff herein will gladly waive any CLRA action for ‘damages.’ Plaintiff expressly
WY
does NOT waive any CLRA action for other remedies, such as injunction, restitution,
BP
punitive damages, actual attorney’s fees and costs, reasonably incurred and any other
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relief that the court deems proper.
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Restitution recaptures the direct gain obtained by defendant in order to prevent
unjust enrichment. Restitution is based upon the measure of defendant’s benefit, not
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plaintiffs losses or damages. Where money or an interest was acquired by means of an
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unfair or improper practice, restitution involves a return to plaintiff of what defendant
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gained in the transaction. A party seeking restitution, Hemmer, in this case, must also
LAWYERS
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return any benefit (the vehicle) that it’s received. Rest.2d, Contracts, § 376, com. a, §
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573-9888
NO
CALIFORNIA
384, com. a.) California Federal Bank v. Matreyek (1992) 8 Cal. App.4th 125, 10
SUITE
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WHO
LEMON
Cal.Rptr.2d 58. The purpose of restitution is for deterrence of future violations and to
(408)
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foreclose retention by the violator, in this case, Suburban, of its ill-gotten gains. Fletcher
GCOLEMAN
TELEPHONE:
OH
CLARA,
CALIFORNIA
y. Security Pacific National Bank (1979) 23 Cal.3d 442, 153 Cal.Rptr. 28, 591 P.2d 51.
DH
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1400
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Suburban had Notice and Failed to Remedy its Violations:
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“The purpose of the notice requirement of Civil Code §1782 is to give the
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manufacturer or vendor notice of alleged defects to permit appropriate corrections or
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DTD
replacements. The notice requirement commences the running of certain time constraints
FP
KN
upon the manufacturer or vendor within which to comply with the corrective provisions.
NYO
HN
The clear intent of the act is to provide and facilitate pre-complaint settlements of
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consumer actions wherever possible and to establish a limited period during which such
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settlement may be accomplished.” (Outboard Marine, supra, 52 Cal.App.3d at pp. 40-
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41.)
ND
There is no dispute that a Civil Code §1782 demand letter was sent certified mail,
WN
NY
by plaintiff and received by defendant, Suburban, in a timely fashion, more than 30 days
NO
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NH
prior to filing and/or serving the initial complaint. There is also no dispute that the
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SUPPLEMENTAL TRIAL BRIEF
demand letter informed Suburban of the CLRA violations complained of, including but
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not limited to, the problems with the broken shifter, gas tank door, improper Vehicle
NY
License fees, failed promise to buy back the vehicle, unauthorized repair attempt, and an
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improper charge for the unauthorized repair attempt. Some time before and after the
FP
CLRA letter was received by Suburban itwas well aware of the conflict. After receiving
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the letter Suburban unilaterally imposed storage fees on Hemmer, absent any contractual
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or statutory authority to do so.
NN
If Suburban appropriately corrected, repaired, replaced, or remedied the goods
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within 30 days of receipt of the notice, or agreed to do so within a reasonable time, no
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individual action “for damages” could be maintained under the CLRA. (Civil Code
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§1782(b).) If Suburban appropriately rectified, no “damages” may be awarded under
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CLRA. (Civil Code § 1784.) Accordingly, regardless of Hemmer's compliance with the
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notice and demand requirement, Suburban could have asserted a defense to a “damage
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action” if it appropriately rectified under the statutory provisions. Here, Suburban fails to
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present any evidence of rectification. Long before Suburban received the Civil Code
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COLEMAN
TELEPHONE:
NH
CLARA,
CALIFORNIA
§1782 demand, itdrew a line in the sand. Suburban converted the vehicle, taking
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Hemmer’s DMV supplied license plates off the vehicle and placing its own plates on it.
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Suburban held the vehicle hostage, for monies from Hemmer it was not entitled to.
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Civil Code §1760 provides that the CLRA “shall be liberally construed and
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applied to promote its underlying purposes, which are to protect consumers against unfair
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and deceptive business practices and to provide efficient and economical procedures to
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secure such protection.” Since Suburban had actual notice and no intention of rectifying,
NO
HN
this court should rule consistent with the statute’s underlying purposes.
HO
WD
Both Cases Cited by Counsel are Easily Distinguished:
FP
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ON
NH
Turunen is easily distinguishable, as it deals with the issue of 1782 notice at the
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summary judgment stage. Defendant asserts its rights early and does so as a defense.
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NAN
NO
Further, it is anon-published and non-binding authority case. Additionally, the court in
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NO
Turunen failed to accurately read and cite Civil Code §1782 as requiring the notice for an
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SUPPLEMENTAL TRIAL BRIEF
“action” as opposed to an “action for damages.” In the instant case, Suburban waits until
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the eve of trial in its trial brief to wrongly propose via non-binding authority, that the
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alleged shortfall in notice fails to meet plaintiff's prima facie showing of a CLRA
WOW
violation. The defendant in Turunen did not sit on its hands just to make a last minute
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challenge, as defendants have done here. By waiting until literally the 12” hour,
OO
Suburban waives its defense.
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How the letter in Outboard Marine failed to comply with §1782 is unclear from
NHN
the opinion, but the opinion suggests that the letter was simply untimely, as the court
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remarked that “[t]he statutory language requires a demand letter be sent 30 days or more
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prior to commencement of the action. The October 11 letter was sent several months after
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the complaint was filed.” (Id. At pp. 39-40.)
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In the instant case, the letter was sent and received in a timely fashion. The
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letter was more than sufficient to put Suburban on notice and to allow for meaningful
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settlement opportunities. Suburban waited too long to object and wants to benefit from
(408)
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that behavior.
COLEMAN
TELEPHONE:
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CLARA,
CALIFORNIA
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1400
Defendant’s Cross-Complaint is Without Merit.
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Defendants cross-complained against Plaintiff, asking for damages for his alleged
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failure to abide by their alleged verbal agreement to pay one half of repair costs to the
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subject vehicle. They further seek to recover storage fees for the vehicle and for the care
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shown to it.
KF
KN
However, there is no actual agreement between Plaintiff and Defendants for
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Plaintiff to pay these amounts. When Plaintiff originally returned the vehicle to
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Suburban, he did so in response to its representation through Keith Akbar that Suburban
BP
NH
was going to buy the vehicle back. After Suburban used these false pretenses to obtain
ON
NY
the vehicle, they took itto Dublin Auto Center to be repaired. They then told Plaintiff
DO
NO
that they were not going to repurchase the vehicle, and that he would have to pay one half
SN
NO
of the repair to get his car back. At this time, Suburban, via Afzal Akbar, represented this
oOo
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SUPPLEMENTAL TRIAL BRIEF
amount to be $585. Plaintiff, not seeing any other way out of the situation, agreed to do
this. Once the vehicle was repaired, Suburban, via Afzal Akbar, increased the amount
NY
demanded from Plaintiff, almost doubling it to $1,100.
WO
Plaintiff only made this agreement with Defendants because of their fraudulent
F&F
misrepresentations and violations of the Consumer Legal Remedies Act. This agreement
WH
is therefore not enforceable against Plaintiff. Further, even were this agreement
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enforceable, itwould only be enforceable in the amount actually agreed to, $585, not the
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amount subsequently demanded.
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Defendants further request Plaintiff be ordered to pay for storage of the vehicle.
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Defendants claim that Plaintiff is liable by quantum meruit. However, Defendants must
OC
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evidence that they actually performed valuable services for Plaintiff in order to recover
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573-9888
that amount. This is clearly not the case. First, the facts will show that Defendants had
NO
CALIFORNIA
Suite
converted the vehicle and refused to turn it over to Plaintiff, not that they were storing it.
WO
LEMON
(408)
AVE.,
Second, the facts will show that when Plaintiff finally recovered the vehicle, it had been
FBP
COLEMAN
so poorly cared for that he had to pay over $1,000.00 to restore itto working order.
TELEPHONE:
WH
CLARA,
CALIFORNIA
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Finally, regardless of what evidence is offered to support this claim, it was not brought in
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Defendants’ pleadings and istherefore barred from consideration now.
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Finally, Defendants request recovery for their costs and attorney’s fees. However,
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they cite no authority giving them the right to recover costs and attorney’s fees. Even if
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Defendants had cited it, California Civil Code §1717 is inapplicable to this case, as suit
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has not been brought for breach of a contract containing an attorney’s fees clause.
§&§
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In conclusion, Defendants, due to their fraudulent misrepresentations, violations of
NY
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the Consumer Legal Remedies Act, and failure to properly care for the vehicle, should
WHO
KH
not recover anything from Plaintiff.
FP
DN
OO
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Nn
NY
NY
NO
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NO
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1 Conclusion
2 Defendants’ attempts to argue that they are not subject to claims under the CLRA
3 || are incorrect. First, they have waived their arguments by not previously bringing them.
4 || Second, they are relying on incorrect interpretations of the relevant cases. Third, they are
5 || attempting to obscure the fact that they had actual notice. Defendant’s claims for
6 || damages are equally lacking in merit. First, the agreement they allege was obtained
7 || through fraud and coercion. Second, the agreement was for an amount different from that
8 || which they claim. Third, their claim at quantum meruit fails because they did not render
9 || avaluable service. Finally, their claim for costs and attorney’s fees is not supported by
2 10 || contractual or statutory right.
: 2 x || ( —
Docket No. 46) omissions and/or misrepresentations.
(See, e.g., Compl. § § 54-57.) In her
CHESNEY, J. opposition, however, Turunen
*1 Before the Court is the motion, filed on clarifies that her First Count is based
behalf of defendants Elite Auto Body & solely on the express statement that
Collision Center, Charles DeVincenzi, Sr., her vehicle's frame was not damaged
and Charles DeVincenzi, Jr., (collectively, and the implied statement that Elite
“Elite”), for summary adjudication pursuant was registered with the BAR. (See
to Rule 56 of the Federal Rules of Civil Pl.’s Opp., filed March 11, 2005, at
6:19-21.)
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Not Reported in F.Supp.2 @ Page 2
Not Reported in sump 2@, WL 851024 (N.D.Cal.)
(Cite as: Not Reported in F.Supp.2d)
of her argument. The purpose of the
*] 2. Elite is not entitled to summary Magnuson-Moss Warranty Act, on which
adjudication as to Turunen's Third Count, this claim is based, is not to enforce state
alleging violations of the Magnuson-Moss licensing laws, but rather to establish
Warranty Act, to the extent such claim is nationwide standards for consumer product
based on the allegation that Elite's written warranties. See Motor Vehicle Mfrs. Ass'n v.
warranty does not fully and conspicuously Abrams, 899 F.2d 1315, 1323-24 (nd
disclose all of the information required in a Cir.1990) (quoting legislative history
written warranty. See 16 C.F.R. § 701.3(a) observing “provisions contained in the Act
(setting forth information that “shall clearly will, among other things, promote greater
and conspicuously” be disclosed in written consumer understanding of product
warranty). For example, as Turunen points warranties [and] assist the consumer in the
out, the written warranty does not disclose a enforcement of his warranty”), cert. denied,
“step-by-step explanation of the procedure 499 U.S. 912, 111 S.Ct. 1122. 113 L.Ed.2d
which the consumer should follow in order 230 (1991). Moreover, it isundisputed Elite
to obtain performance of any warranty obtained a license from the BAR in
obligation.” See 16 C.F.R. § 701.3(a)(5). September 2002, shortly after Turunen
reported possible defects, and Turunen
*1 3. Elite is entitled to summary provides no excuse for her failure thereafter
adjudication as to Turunen's Third Count, to to afford Elite the opportunity to comply
the extent the claim is based on the with its warranty, nor does she offer
allegation that Elite breached the terms of its evidence that at any time she had the subject
written warranty. Turunen, for the reasons defects repaired elsewhere.
stated in Elite's papers, has failed to offer
sufficient evidence to support a finding that *2 4, Elite is entitled to summary
Turunen provided Elite a “reasonable adjudication as to Turunen's Sixth Count,
number of attempts” to remedy any alleged alleging Elite, in violation of § § 1770(a)(5)
defects in Elite's work. See 50 U.S.C. § and 1770(a)(7) of the California Civil Code,
2304(a)(4) (providing warrantor is in breach misrepresented ithad properly repaired the
of written warranty if product contains subject vehicle, for the reason Turunen
defect “after a reasonable number of failed to comply with the requirements of §
attempts by the warrantor to remedy”); see, 1782. Although Turunen did provide Elite
e.g., Plagens v. National RV Holdings, Inc., with notice of her allegation that Elite was in
328 F.Supp.2d_ 1068, 1076 (D.Ariz.2004) violation of § § 1770(a)(5) and 1770(a\(7),
(holding where plaintiff failed to offer as required by § 1782(a)(1),~™ that notice
sufficient evidence to support finding did not “deniand that [Elite] correct, repair,
defendant warrantor had “reasonable replace, or otherwise rectify the goods or
opportunity to correct” defects, defendant services” she claimed in the notice as
entitled to summary judgment as to deficient, as required by § 1782(a)(2). (See
plaintiffs claim for breach of written McDanel Decl., filed March 11, 2005, Ex.
warranty). Although Turunen asserts she C.) Rather, Turunen demanded that Elite
should be excused from having to afford purchase her vehicle and provide her with
Elite the opportunity to remedy defects, on remedies other than correction or repair of
the ground Elite was not licensed by the defects. (See id) The Court finds
BAR, Turunen cites no authority in support unpersuasive Turunen's argument that such
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Not Reported in F.Supp.2 @ Page 3
Not Reported in F.Supp.2d, 2005 WL 851024 (N.D.Cal.)
(Cite as: NotReported in F.Supp.2d)
demands suffice. See Outboard Marine denied.
Corp. v. Superior Court, 52 Cal.App.3d 30,
40, 124 Cal.Rptr. 852 (1975) (holding *2 This order terminates Docket No. 46.
“purpose of the notice requirement of
section 1782 is to give the [defendant] *2 IT IS SO ORDERED.
sufficient notice of the alleged defects to
permit appropriate corrections or N.D.Cal.,2005.
replacements”). Turunen v. Elite Auto Body & Collision
Center
Not Reported in F.Supp.2d, 2005 WL
FN3. Turunen, in her opposition to 851024 (N.D.Cal.)
Elite's motion, alleges for the first
time that Elite violated subsections Briefs and Other Related Documents (Back
of § 1770 in addition to § § to top)
1770(a\(5) and 1770(a)(7). Such
claims, not alleged in the complaint, * 3:03cv04862 (Docket) (Oct. 30, 2003)
are not before the Court. Further, any
motion to amend to include such END OF DOCUMENT
additional claims would be futile
because Turunen's pre-filing notice
did not refer to any violations of §
1770 other than § § 1770(a)(5) and
1770(a)(7). See Cal. Civil Code §
1782(a)(1) (requiring plaintiff, prior
to commencing action, to notify
defendant of “particular alleged
violations of Section 1770”).
CONCLUSION
*2 For the reasons stated above, Elite's
motion for summary adjudication is hereby
GRANTED in part and DENIED in part, as
follows:
*2 1. Elite is entitled to summary
adjudication as to Turunen's First and Sixth
Causes of Action.
*2 2. Elite is entitled to summary
adjudication as to Turunen's Third Cause of
Action, to the extent it is based on the claim
that Elite breached its written warranty.
*2 3. In all other respects, the motion is
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Preview
nag Scott R. Kaufman, SBN 190129 fanaa Kevin Faulk, SBN 224711 WN California Lemon Lawyers 1400 Coleman Ave., Suite F-21 Santa Clara, California 95050 W Telephone: (408) 727-8882 Facsimile :(408) 727-8883 MAR 1 2 2007 F&F Attorney for HEMMER, Plaintiff un THE SUPERIOR COURT CLERK OE pus By 7 Deputy ND SUPERIOR COURT OF THE STATE OF CALIFORNIA Aa FOR THE ALAMEDA oO THOMAS HEMMER, an individual, Case Number HG05214517 C — LAWYERS 95050 Plaintiff, ay KF F-21 573-9888 VS. SUPPLEMENTAL TRIAL BRIEF NO me CALIFORNIA SUITE SUBURBAN AUTO BROKERS, INC., a WH a LEMON corporation, AFZAL AKBAR, an (408) AVE,, SF individual, KEITH AKBAR, an individual, — PLATTE RIVER INSURANCE COLEMAN TELEPHONE: ran CLARA, CALIFORNIA COMPANY, and Does One through Ten, NHN — 1400 Defendants. AIT SANTA ay DH AND RELATED CROSS-COMPLAINT —" OO — DOD N Defendants Waive Any and All Defenses Not Timely Brought. F§|§ No Suburban’s alleges non-compliance with Civil Code §1782 for the very first time NYO N in its trial brief. Suburban failed to raise the alleged non-compliance as an affirmative WO N defense in its answer to the initial complaint, in its answer to the first amended complaint, F&F No in its answer to Hemmer’s cross complaint, and did not raise the issue in its answer to the OH nN second amended complaint. Suburban also failed to make any dispositive motions NWN N raising the issue as an affirmative defense. Now, on the eve of trial, defense raises this SN N issue for the first time, in itstrial brief, and in doing so, waives the defense. ao N -l- SUPPLEMENTAL TRIAL BRIEF @ @ 1 Suburban states that Hemmer’s alleged failure to fully comply with Civil Code 2 | §1782 constitutes a missing “essential element” of his CLRA claim. Suburban offers no 3 || mandatory authority for that proposition. In fact, non-compliance with Civil Code §1782 4 || is clearly is an affirmative defense Suburban has waived for failure to timely raise. 5 The Consumer Legal Remedies Act statutory scheme breaks down into four parts 6 || as follows: (1) Civil Code §§ 1750-1756, General Provisions; (2) Civil Code §§ 1760- 7 || 1761, Construction and Definitions; (3) Civil Code § 1770, Deceptive Practices; and (4) g || Civil Code §§ 1780-1784, Remedies and Procedures. Defense argument on Civil Code § 9 || 1782, comes from CLRA’s “Remedies and Procedures” prong. Neither a remedy nor a 10 || Procedure is part of making a prima facie case under any statute. Therefore, Suburban’s n f ; 2 a notice argument, if itis to fly, must be brought as an affirmative defense. Zi i < rm) The Outboard Marine case cited in defense counsel’s trial brief isthe only . 5 E B mandatory authority in California that comes close to being on point. It also goes into : : f $ 14 depth on the topic of waiver. The case states “unless otherwise provided by law, any , z o i 4s person may waive the advantage of a law intended for his benefit. Civil Code § 3513. Z 3 : : 16 Waiver is the voluntary relinquishment of a known right. [Bohlert v. Spartan Insurance 2 : : a UW Company (1969) 3 Cal.App. 3d 113, 118, 83 Cal-Rptr. 515; Outboard Marine at p. 41.] S = 18 Outboard Marine goes on to state, “To constitute a waiver, itis essential that there be an existing right, benefit, or advantage, a knowledge, actual or constructive, of its ” existence, and an actual intention to relinquish it ‘or conduct so inconsistent with the “8 intent to enforce the right in question as to induce a reasonable belief that it has been 21 relinquished.’” Suburban conducted itself in a manner inconsistent with the intent to 22 enforce this alleged right. Suburban failed to raise the alleged non-compliance issue until 23 the eve of trial, appearing to challenge the action on itsmerits all along. Suburban’s 24 strategy induced more than reasonable belief that the (alleged) right was relinquished. 25 26 || Hemmer’s Notice Was Not Deficient. 27 2g || Civil Code §1782(d) Specifically Allows Hemmer To Bring This Action Without The -2- SUPPLEMENTAL TRIAL BRIEF Complained Of Civil Code §1782(a) Notice: — NY Civil Code §1782 states in pertinent part: BW (a) “Thirty days or more prior to the commencement of an action for ‘damages’ pursuant to this title, the consumer Se shall do the following...” (Emphasis added.) A (d) “An action for injunctive relief brought under the specific ND provisions of Section 1770 may be commenced without compliance with subdivision (a).” (Emphasis added.) ee Civil Code § 1780 states in pertinent part: o (a) Any consumer who suffers any damage as a result of the So — use or employment by any person of a method, act, or practice LAWYERS 95050 be ee declared to be unlawful by Section 1770 may bring an action against F-21 that person to recover or obtain any of the following: 573-9888 NO e CALIFORNIA (2) An order enjoining the methods, acts, or practices. SUITE (3) Restitution of property. iy lo LEMON (408) AVE., (4) Punitive damages. oe (5) Any other relief that the court deems proper. nA COLEMAN TELEPHONE: me CLARA, CALIFORNIA (d) The court shall award court costs and attorney's fees to a a" N prevailing plaintiff in litigation filed pursuant to this section. 1400 17 (Emphasis added.) SANTA 18 19 Suburban’s trial brief cites a non-published Federal case, a non-binding 50 authority, Turunen v. Elite Auto Body for the proposition that Hemmer’s Civil Code 1 § 1782 notice was deficient. Suburban failed to supply a copy of the unpublished 9 decision. The only prohibition stated in Civil Code § 1782(a) with regard to the 30 day waiting period for bringing an action is against bringing an action for “damages.” *° Counsel for ALL defendants argues in his trial brief that “Civil Code §1782 requires that “a in order to commence ‘an action’ under its provisions, that the consumer must, 30 or 2 more days prior to the commencement of the action, notify the person alleged to have 26 committed a violation of the Act.” 27 The clear language of the statute states that “Thirty days or more prior to the 28 commencement of ‘an action for damages’ ... Outboard Marine states, “Plaintiff had -3- SUPPLEMENTAL TRIAL BRIEF failed to demonstrate compliance with the 30-day letter, a mandatory prerequisite to — ‘damage actions’ under [the CLRA.” (Id. at 41.) Ifthe court finds it appropriate, NO plaintiff herein will gladly waive any CLRA action for ‘damages.’ Plaintiff expressly WY does NOT waive any CLRA action for other remedies, such as injunction, restitution, BP punitive damages, actual attorney’s fees and costs, reasonably incurred and any other OH relief that the court deems proper. NN Restitution recaptures the direct gain obtained by defendant in order to prevent unjust enrichment. Restitution is based upon the measure of defendant’s benefit, not Om plaintiffs losses or damages. Where money or an interest was acquired by means of an oO unfair or improper practice, restitution involves a return to plaintiff of what defendant ee OC gained in the transaction. A party seeking restitution, Hemmer, in this case, must also LAWYERS 95050 KF eee return any benefit (the vehicle) that it’s received. Rest.2d, Contracts, § 376, com. a, § F-21 573-9888 NO CALIFORNIA 384, com. a.) California Federal Bank v. Matreyek (1992) 8 Cal. App.4th 125, 10 SUITE ee WHO LEMON Cal.Rptr.2d 58. The purpose of restitution is for deterrence of future violations and to (408) AVE., BP ROR foreclose retention by the violator, in this case, Suburban, of its ill-gotten gains. Fletcher GCOLEMAN TELEPHONE: OH CLARA, CALIFORNIA y. Security Pacific National Bank (1979) 23 Cal.3d 442, 153 Cal.Rptr. 28, 591 P.2d 51. DH Ry 1400 SANTA RO NT Suburban had Notice and Failed to Remedy its Violations: OH “The purpose of the notice requirement of Civil Code §1782 is to give the OBO manufacturer or vendor notice of alleged defects to permit appropriate corrections or KOR DTD replacements. The notice requirement commences the running of certain time constraints FP KN upon the manufacturer or vendor within which to comply with the corrective provisions. NYO HN The clear intent of the act is to provide and facilitate pre-complaint settlements of WO HN consumer actions wherever possible and to establish a limited period during which such FP NY settlement may be accomplished.” (Outboard Marine, supra, 52 Cal.App.3d at pp. 40- WO NHN 41.) ND There is no dispute that a Civil Code §1782 demand letter was sent certified mail, WN NY by plaintiff and received by defendant, Suburban, in a timely fashion, more than 30 days NO ao NH prior to filing and/or serving the initial complaint. There is also no dispute that the -4. SUPPLEMENTAL TRIAL BRIEF demand letter informed Suburban of the CLRA violations complained of, including but eH not limited to, the problems with the broken shifter, gas tank door, improper Vehicle NY License fees, failed promise to buy back the vehicle, unauthorized repair attempt, and an WO improper charge for the unauthorized repair attempt. Some time before and after the FP CLRA letter was received by Suburban itwas well aware of the conflict. After receiving OH the letter Suburban unilaterally imposed storage fees on Hemmer, absent any contractual DWN or statutory authority to do so. NN If Suburban appropriately corrected, repaired, replaced, or remedied the goods Oo within 30 days of receipt of the notice, or agreed to do so within a reasonable time, no o individual action “for damages” could be maintained under the CLRA. (Civil Code OC §1782(b).) If Suburban appropriately rectified, no “damages” may be awarded under LAWYERS 95050 KF CLRA. (Civil Code § 1784.) Accordingly, regardless of Hemmer's compliance with the F-214 573-9888 NO CALIFORNIA om notice and demand requirement, Suburban could have asserted a defense to a “damage SUITE WO LEMON action” if it appropriately rectified under the statutory provisions. Here, Suburban fails to (408) AVE ., BP present any evidence of rectification. Long before Suburban received the Civil Code mR COLEMAN TELEPHONE: NH CLARA, CALIFORNIA §1782 demand, itdrew a line in the sand. Suburban converted the vehicle, taking DB Hemmer’s DMV supplied license plates off the vehicle and placing its own plates on it. 1400 SANTA HN Suburban held the vehicle hostage, for monies from Hemmer it was not entitled to. RRR OW Civil Code §1760 provides that the CLRA “shall be liberally construed and OO applied to promote its underlying purposes, which are to protect consumers against unfair DD KR and deceptive business practices and to provide efficient and economical procedures to KY KN secure such protection.” Since Suburban had actual notice and no intention of rectifying, NO HN this court should rule consistent with the statute’s underlying purposes. HO WD Both Cases Cited by Counsel are Easily Distinguished: FP NHN ON NH Turunen is easily distinguishable, as it deals with the issue of 1782 notice at the WN summary judgment stage. Defendant asserts its rights early and does so as a defense. WN NAN NO Further, it is anon-published and non-binding authority case. Additionally, the court in oa NO Turunen failed to accurately read and cite Civil Code §1782 as requiring the notice for an -5- SUPPLEMENTAL TRIAL BRIEF “action” as opposed to an “action for damages.” In the instant case, Suburban waits until ke the eve of trial in its trial brief to wrongly propose via non-binding authority, that the NO alleged shortfall in notice fails to meet plaintiff's prima facie showing of a CLRA WOW violation. The defendant in Turunen did not sit on its hands just to make a last minute He challenge, as defendants have done here. By waiting until literally the 12” hour, OO Suburban waives its defense. HD How the letter in Outboard Marine failed to comply with §1782 is unclear from NHN the opinion, but the opinion suggests that the letter was simply untimely, as the court ee remarked that “[t]he statutory language requires a demand letter be sent 30 days or more oO prior to commencement of the action. The October 11 letter was sent several months after OC the complaint was filed.” (Id. At pp. 39-40.) LAWYERS 95050 fF In the instant case, the letter was sent and received in a timely fashion. The F-21 573-9888 NP RR CALIFORNIA SUITE letter was more than sufficient to put Suburban on notice and to allow for meaningful WH LEMON eee settlement opportunities. Suburban waited too long to object and wants to benefit from (408) AVE., BP that behavior. COLEMAN TELEPHONE: nN CLARA, CALIFORNIA RR DB 1400 Defendant’s Cross-Complaint is Without Merit. SANTA SI Rw Defendants cross-complained against Plaintiff, asking for damages for his alleged Oo failure to abide by their alleged verbal agreement to pay one half of repair costs to the OO wR subject vehicle. They further seek to recover storage fees for the vehicle and for the care DOD KH shown to it. KF KN However, there is no actual agreement between Plaintiff and Defendants for NYO WN Plaintiff to pay these amounts. When Plaintiff originally returned the vehicle to BD NY Suburban, he did so in response to its representation through Keith Akbar that Suburban BP NH was going to buy the vehicle back. After Suburban used these false pretenses to obtain ON NY the vehicle, they took itto Dublin Auto Center to be repaired. They then told Plaintiff DO NO that they were not going to repurchase the vehicle, and that he would have to pay one half SN NO of the repair to get his car back. At this time, Suburban, via Afzal Akbar, represented this oOo Oo -6- SUPPLEMENTAL TRIAL BRIEF amount to be $585. Plaintiff, not seeing any other way out of the situation, agreed to do this. Once the vehicle was repaired, Suburban, via Afzal Akbar, increased the amount NY demanded from Plaintiff, almost doubling it to $1,100. WO Plaintiff only made this agreement with Defendants because of their fraudulent F&F misrepresentations and violations of the Consumer Legal Remedies Act. This agreement WH is therefore not enforceable against Plaintiff. Further, even were this agreement HD enforceable, itwould only be enforceable in the amount actually agreed to, $585, not the YN amount subsequently demanded. wea Defendants further request Plaintiff be ordered to pay for storage of the vehicle. o Defendants claim that Plaintiff is liable by quantum meruit. However, Defendants must OC mt LAWYERS 95050 evidence that they actually performed valuable services for Plaintiff in order to recover FF F-21 573-9888 that amount. This is clearly not the case. First, the facts will show that Defendants had NO CALIFORNIA Suite converted the vehicle and refused to turn it over to Plaintiff, not that they were storing it. WO LEMON (408) AVE., Second, the facts will show that when Plaintiff finally recovered the vehicle, it had been FBP COLEMAN so poorly cared for that he had to pay over $1,000.00 to restore itto working order. TELEPHONE: WH CLARA, CALIFORNIA Rm Finally, regardless of what evidence is offered to support this claim, it was not brought in WB 1400 SANTA Defendants’ pleadings and istherefore barred from consideration now. YQ Finally, Defendants request recovery for their costs and attorney’s fees. However, DH wm they cite no authority giving them the right to recover costs and attorney’s fees. Even if OO RB Defendants had cited it, California Civil Code §1717 is inapplicable to this case, as suit OD has not been brought for breach of a contract containing an attorney’s fees clause. §&§ KR In conclusion, Defendants, due to their fraudulent misrepresentations, violations of NY KN the Consumer Legal Remedies Act, and failure to properly care for the vehicle, should WHO KH not recover anything from Plaintiff. FP DN OO HN Nn NY NY NO Oo NO -7- SUPPLEMENTAL TRIAL BRIEF 1 Conclusion 2 Defendants’ attempts to argue that they are not subject to claims under the CLRA 3 || are incorrect. First, they have waived their arguments by not previously bringing them. 4 || Second, they are relying on incorrect interpretations of the relevant cases. Third, they are 5 || attempting to obscure the fact that they had actual notice. Defendant’s claims for 6 || damages are equally lacking in merit. First, the agreement they allege was obtained 7 || through fraud and coercion. Second, the agreement was for an amount different from that 8 || which they claim. Third, their claim at quantum meruit fails because they did not render 9 || avaluable service. Finally, their claim for costs and attorney’s fees is not supported by 2 10 || contractual or statutory right. : 2 x || ( — Docket No. 46) omissions and/or misrepresentations. (See, e.g., Compl. § § 54-57.) In her CHESNEY, J. opposition, however, Turunen *1 Before the Court is the motion, filed on clarifies that her First Count is based behalf of defendants Elite Auto Body & solely on the express statement that Collision Center, Charles DeVincenzi, Sr., her vehicle's frame was not damaged and Charles DeVincenzi, Jr., (collectively, and the implied statement that Elite “Elite”), for summary adjudication pursuant was registered with the BAR. (See to Rule 56 of the Federal Rules of Civil Pl.’s Opp., filed March 11, 2005, at 6:19-21.) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in F.Supp.2 @ Page 2 Not Reported in sump 2@, WL 851024 (N.D.Cal.) (Cite as: Not Reported in F.Supp.2d) of her argument. The purpose of the *] 2. Elite is not entitled to summary Magnuson-Moss Warranty Act, on which adjudication as to Turunen's Third Count, this claim is based, is not to enforce state alleging violations of the Magnuson-Moss licensing laws, but rather to establish Warranty Act, to the extent such claim is nationwide standards for consumer product based on the allegation that Elite's written warranties. See Motor Vehicle Mfrs. Ass'n v. warranty does not fully and conspicuously Abrams, 899 F.2d 1315, 1323-24 (nd disclose all of the information required in a Cir.1990) (quoting legislative history written warranty. See 16 C.F.R. § 701.3(a) observing “provisions contained in the Act (setting forth information that “shall clearly will, among other things, promote greater and conspicuously” be disclosed in written consumer understanding of product warranty). For example, as Turunen points warranties [and] assist the consumer in the out, the written warranty does not disclose a enforcement of his warranty”), cert. denied, “step-by-step explanation of the procedure 499 U.S. 912, 111 S.Ct. 1122. 113 L.Ed.2d which the consumer should follow in order 230 (1991). Moreover, it isundisputed Elite to obtain performance of any warranty obtained a license from the BAR in obligation.” See 16 C.F.R. § 701.3(a)(5). September 2002, shortly after Turunen reported possible defects, and Turunen *1 3. Elite is entitled to summary provides no excuse for her failure thereafter adjudication as to Turunen's Third Count, to to afford Elite the opportunity to comply the extent the claim is based on the with its warranty, nor does she offer allegation that Elite breached the terms of its evidence that at any time she had the subject written warranty. Turunen, for the reasons defects repaired elsewhere. stated in Elite's papers, has failed to offer sufficient evidence to support a finding that *2 4, Elite is entitled to summary Turunen provided Elite a “reasonable adjudication as to Turunen's Sixth Count, number of attempts” to remedy any alleged alleging Elite, in violation of § § 1770(a)(5) defects in Elite's work. See 50 U.S.C. § and 1770(a)(7) of the California Civil Code, 2304(a)(4) (providing warrantor is in breach misrepresented ithad properly repaired the of written warranty if product contains subject vehicle, for the reason Turunen defect “after a reasonable number of failed to comply with the requirements of § attempts by the warrantor to remedy”); see, 1782. Although Turunen did provide Elite e.g., Plagens v. National RV Holdings, Inc., with notice of her allegation that Elite was in 328 F.Supp.2d_ 1068, 1076 (D.Ariz.2004) violation of § § 1770(a)(5) and 1770(a\(7), (holding where plaintiff failed to offer as required by § 1782(a)(1),~™ that notice sufficient evidence to support finding did not “deniand that [Elite] correct, repair, defendant warrantor had “reasonable replace, or otherwise rectify the goods or opportunity to correct” defects, defendant services” she claimed in the notice as entitled to summary judgment as to deficient, as required by § 1782(a)(2). (See plaintiffs claim for breach of written McDanel Decl., filed March 11, 2005, Ex. warranty). Although Turunen asserts she C.) Rather, Turunen demanded that Elite should be excused from having to afford purchase her vehicle and provide her with Elite the opportunity to remedy defects, on remedies other than correction or repair of the ground Elite was not licensed by the defects. (See id) The Court finds BAR, Turunen cites no authority in support unpersuasive Turunen's argument that such © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in F.Supp.2 @ Page 3 Not Reported in F.Supp.2d, 2005 WL 851024 (N.D.Cal.) (Cite as: NotReported in F.Supp.2d) demands suffice. See Outboard Marine denied. Corp. v. Superior Court, 52 Cal.App.3d 30, 40, 124 Cal.Rptr. 852 (1975) (holding *2 This order terminates Docket No. 46. “purpose of the notice requirement of section 1782 is to give the [defendant] *2 IT IS SO ORDERED. sufficient notice of the alleged defects to permit appropriate corrections or N.D.Cal.,2005. replacements”). Turunen v. Elite Auto Body & Collision Center Not Reported in F.Supp.2d, 2005 WL FN3. Turunen, in her opposition to 851024 (N.D.Cal.) Elite's motion, alleges for the first time that Elite violated subsections Briefs and Other Related Documents (Back of § 1770 in addition to § § to top) 1770(a\(5) and 1770(a)(7). Such claims, not alleged in the complaint, * 3:03cv04862 (Docket) (Oct. 30, 2003) are not before the Court. Further, any motion to amend to include such END OF DOCUMENT additional claims would be futile because Turunen's pre-filing notice did not refer to any violations of § 1770 other than § § 1770(a)(5) and 1770(a)(7). See Cal. Civil Code § 1782(a)(1) (requiring plaintiff, prior to commencing action, to notify defendant of “particular alleged violations of Section 1770”). CONCLUSION *2 For the reasons stated above, Elite's motion for summary adjudication is hereby GRANTED in part and DENIED in part, as follows: *2 1. Elite is entitled to summary adjudication as to Turunen's First and Sixth Causes of Action. *2 2. Elite is entitled to summary adjudication as to Turunen's Third Cause of Action, to the extent it is based on the claim that Elite breached its written warranty. *2 3. In all other respects, the motion is © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.