CACI No. 4700. Consumers Legal Remedies Act - Essential Factual Elements (Civ. Code, § 1770)

Judicial Council of California Civil Jury Instructions (2020 edition)

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4700.Consumers Legal Remedies Act - Essential Factual
Elements (Civ. Code, § 1770)
[Name of plaintiff] claims that [name of defendant] engaged in unfair
methods of competition and unfair or deceptive acts or practices in a
transaction that resulted, or was intended to result, in the sale or lease of
goods or services to a consumer, and that [name of plaintiff] was harmed
by [name of defendant]’s violation. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] acquired, or sought to acquire, by
purchase or lease, [specify product or service] for personal, family,
or household purposes;
2. That [name of defendant][specify one or more prohibited practices
from Civ. Code, § 1770(a), e.g., represented that [product or service]
had characteristics, uses, or benefits that it did not have];
3. That [name of plaintiff] was harmed; and
4. That [name of plaintiff]’s harm resulted from [name of defendant]’s
conduct.
[[Name of plaintiff]’s harm resulted from [name of defendant]’s conduct if
[name of plaintiff] relied on [name of defendant]’s representation. To prove
reliance, [name of plaintiff] need only prove that the representation was a
substantial factor in [his/her/nonbinary pronoun] decision.
[He/She/Nonbinary pronoun] does not need to prove that it was the
primary factor or the only factor in the decision.
If [name of defendant]’s representation of fact was material, reliance may
be inferred. A fact is material if a reasonable consumer would consider it
important in deciding whether to buy or lease the [goods/services].]
New November 2017
Directions for Use
Give this instruction for a claim under the Consumers Legal Remedies Act (CLRA).
The CLRA prohibits 27 distinct unfair methods of competition and unfair or
deceptive acts or practices with regard to consumer transactions. (See Civ. Code,
§ 1770(a).) In element 2, insert the prohibited practice or practices at issue in the
case.
The last two optional paragraphs address the plaintiff’s reliance on the defendant’s
conduct. CLRA claims not sounding in fraud do not require reliance. (See, e.g., Civ.
Code, § 1770(a)(19) [inserting an unconscionable provision in a contract].) Give
these paragraphs in a case sounding in fraud.
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Many of the prohibited practices involve a misrepresentation made by the defendant.
(See, e.g., Civ. Code, § 1770(a)(4) [using deceptive representations or designations
of geographic origin in connection with goods or services].) In a misrepresentation
claim, the plaintiff must have relied on the information given. (Nelson v. Pearson
Ford Co. (2010) 186 Cal.App.4th 983, 1022 [112 Cal.Rptr.3d 607], disapproved of
on other grounds in Raceway Ford Cases (2016) 2 Cal.5th 161, 180 [211
Cal.Rptr.3d 244, 385 P.3d 397].) An element of reliance is that the information must
have been material (or important). (Collins v. eMachines, Inc. (2011) 202
Cal.App.4th 249, 256 [134 Cal.Rptr.3d 588].)
Other prohibited practices involve a failure to disclose information. (See Gutierrez v.
Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1258 [248
Cal.Rptr.3d 61]; see, e.g., Civ. Code, § 1770(a)(9) [advertising goods or services
with intent not to sell them as advertised].) Reliance in concealment cases is best
expressed in terms that the plaintiff would have behaved differently had the true
facts been known. (See Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].) The next-to-last paragraph may be modified to
express reliance in this manner. (See CACI No. 1907, Reliance.)
The CLRA provides for class actions. (See Civ. Code, § 1781.) In a class action,
this instruction should be modified to state that only the named plaintiff’s reliance
on the defendant’s representation must be proved. Class-wide reliance does not
require a showing of actual reliance on the part of every class member. Rather, if all
class members have been exposed to the same material misrepresentations, class-
wide reliance will be inferred, unless rebutted by the defendant. (Vasquez v. Superior
Court (1971) 4 Cal.3d 800, 814-815 [94 Cal.Rptr. 796, 484 P.2d 964]; Occidental
Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 362-363 [134 Cal.Rptr. 388, 556
P.2d 750]; Massachusetts Mut. Life Ins. Co. v. Superior Court (2002) 97
Cal.App.4th 1282, 1293 [119 Cal.Rptr.2d 190].) In class cases then, exposure and
materiality are the only facts that need to be established to justify class-wide relief.
Those determinations are a part of the class certification analysis and will, therefore,
be within the purview of the court.
Sources and Authority
• Consumers Legal Remedies Act: Prohibited Practices. Civil Code section
1770(a).
• Consumers Legal Remedies Act: Private Cause of Action. Civil Code section
1780(a).
• “ ‘The CLRA makes unlawful, in Civil Code section 1770, subdivision (a) . . .
various “unfair methods of competition and unfair or deceptive acts or practices
undertaken by any person in a transaction intended to result or which results in
the sale or lease of goods or services to any consumer.” ’ The CLRA proscribes
27 specific acts or practices.” (Rubenstein v. The Gap, Inc. (2017) 14
Cal.App.5th 870, 880-881 [222 Cal.Rptr.3d 397], internal citation omitted.)
• “The Legislature enacted the CLRA ‘to protect consumers against unfair and
deceptive business practices and to provide efficient and economical procedures
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to secure such protection.’ ” (Valdez v. Seidner-Miller, Inc. (2019) 33
Cal.App.5th 600, 609 [245 Cal.Rptr.3d 268].)
• “ ‘Whether a practice is deceptive, fraudulent, or unfair is generally a question of
fact which requires “consideration and weighing of evidence from both sides”
and which usually cannot be made on demurrer.’ ” (Brady v. Bayer Corp. (2018)
26 Cal.App.5th 1156, 1164 [237 Cal.Rptr.3d 683].)
• “The CLRA is set forth in Civil Code section 1750 et seq. . . . [U]nder the
CLRA a consumer may recover actual damages, punitive damages and attorney
fees. However, relief under the CLRA is limited to ‘[a]ny consumer who suffers
any damage as a result of the use or employment by any person of a method,
act, or practice’ unlawful under the act. As [defendant] argues, this limitation on
relief requires that plaintiffs in a CLRA action show not only that a defendant’s
conduct was deceptive but that the deception caused them harm.” (Massachusetts
Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1292, original italics, internal
citations omitted.)
• “[T]he CLRA does not require lost injury or property, but does require damage
and causation. ‘Under Civil Code section 1780, subdivision (a), CLRA actions
may be brought “only by a consumer ‘who suffers any damage as a result of the
use or employment’ of a proscribed method, act, or practice. . . . Accordingly,
‘plaintiffs in a CLRA action [must] show not only that a defendant’s conduct
was deceptive but that the deception caused them harm.” ’ ” (Veera v. Banana
Republic, LLC (2016) 6 Cal.App.5th 907, 916, fn. 3 [211 Cal.Rptr.3d 769].)
• “ ‘To have standing to assert a claim under the CLRA, a plaintiff must have
“suffer[ed] any damage as a result of the . . . practice declared to be
unlawful.” ’ Our Supreme Court has interpreted the CLRA’s ‘any damage’
requirement broadly, concluding that the ‘phrase . . . is not synonymous with
“actual damages,” which generally refers to pecuniary damages.’ Rather, the
consumer must merely ‘experience some [kind of] damage,’ or ‘some type of
increased costs’ as a result of the unlawful practice.” (Hansen v. Newegg.com
Americas, Inc. (2018) 25 Cal.App.5th 714, 724 [236 Cal.Rptr.3d 61], internal
citations omitted.)
• “This language does not create an automatic award of statutory damages upon
proof of an unlawful act.” (Moran v. Prime Healthcare Management, Inc. (2016)
3 Cal.App.5th 1131, 1152 [208 Cal.Rptr.3d 303].)
• “[Civil Code section 1761(e)] provides a broad definition of ‘transaction’ as ‘an
agreement between a consumer and any other person, whether or not the
agreement is a contract enforceable by action, and includes the making of, and
the performance pursuant to, that agreement.’ ” (Wang v. Massey Chevrolet
(2002) 97 Cal.App.4th 856, 869 [118 Cal.Rptr.2d 770].)
• “ ‘While a plaintiff must show that the misrepresentation was an immediate
cause of the injury-producing conduct, the plaintiff need not demonstrate it was
the only cause. “ ‘It is not . . . necessary that [the plaintiff’s] reliance upon the
truth of the fraudulent misrepresentation be the sole or even the predominant or
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decisive factor in influencing his conduct. . . . It is enough that the
representation has played a substantial part, and so has been a substantial factor,
in influencing his decision.’ [Citation.]” ’ In other words, it is enough if a
plaintiff shows that ‘ “in [the] absence [of the misrepresentation] the plaintiff ‘in
all reasonable probability’ would not have engaged in the injury-producing
conduct.’ [Citation.]’ ” (Veera, supra, 6 Cal.App.5th at p. 919, internal citations
omitted.)
• “Under the CLRA, plaintiffs must show actual reliance on the misrepresentation
and harm.” (Nelson, supra, 186 Cal.App.4th at p. 1022.)
• “A ‘ “misrepresentation is material for a plaintiff only if there is reliance - that
is, ‘ “ ‘without the misrepresentation, the plaintiff would not have acted as he
did’ ” ’ . . . .” [Citation.]’ ” (Moran, supra, 3 Cal.App.5th at p. 1152.)
• “[M]ateriality usually is a question of fact. In certain cases, a court can
determine the factual misrepresentation or omission is so obviously unimportant
that the jury could not reasonably find that a reasonable person would have been
influence (sic) by it.” (Gutierrez,supra, 19 Cal.App.5th at p. 1262, internal
citations omitted.)
• “If a claim of misleading labeling runs counter to ordinary common sense or the
obvious nature of the product, the claim is fit for disposition at the demurrer
stage of the litigation.” (Brady,supra, 26 Cal.App.5th at p. 1165.)
• “In the CLRA context, a fact is deemed ‘material,’ and obligates an exclusively
knowledgeable defendant to disclose it, if a ‘ “reasonable [consumer]” ’ would
deem it important in determining how to act in the transaction at issue.”
(Collins, supra, 202 Cal.App.4th at p. 256.)
• “If the undisclosed assessment was material, an inference of reliance as to the
entire class would arise, subject to any rebuttal evidence [defendant] might
offer.” (Massachusetts Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1295.)
• “[U]nless the advertisement targets a particular disadvantaged or vulnerable
group, it is judged by the effect it would have on a reasonable consumer.”
(Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351,
1360 [8 Cal.Rptr.3d 22].)
• “In California . . . product mislabeling claims are generally evaluated using a
‘reasonable consumer’ standard, as distinct from an ‘unwary consumer’ or a
‘suspicious consumer’ standard.” (Brady,supra, 26 Cal.App.5th at p. 1174.)
• “Not every omission or nondisclosure of fact is actionable. Consequently, we
must adopt a test identifying which omissions or nondisclosures fall within the
scope of the CLRA. Stating that test in general terms, we conclude an omission
is actionable under the CLRA if the omitted fact is (1) ‘contrary to a [material]
representation actually made by the defendant’ or (2) is ‘a fact the defendant was
obliged to disclose.’ ” (Gutierrez,supra, 19 Cal.App.5th at p. 1258.)
• “[T]here is no independent duty to disclose [safety] concerns. Rather, a duty to
disclose material safety concerns ‘can be actionable in four situations: (1) when
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the defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) when the defendant actively conceals a material fact from the plaintiff; or (4)
when the defendant makes partial representations but also suppresses some
material fact.’ ” (Gutierrez,supra, 19 Cal.App.5th at p. 1260.)
• “Under the CLRA, even if representations and advertisements are true, they may
still be deceptive because ‘ “[a] perfectly true statement couched in such a
manner that it is likely to mislead or deceive the consumer, such as by failure to
disclose other relevant information, is actionable.” [Citation.]’ ” (Jones, supra,
237 Cal.App.4th Supp. at p. 11.)
• “Defendants next allege that plaintiffs cannot sue them for violating the CLRA
because their debt collection efforts do not involve ‘goods or services.’ The
CLRA prohibits ‘unfair methods of competition and unfair or deceptive acts or
practices.’ This includes the inaccurate ‘represent[ation] that a transaction confers
or involves rights, remedies, or obligations which it does not have or involve
. . . .’ However, this proscription only applies with respect to ‘transaction[s]
intended to result or which result[] in the sale or lease of goods or services to
[a] consumer . . . .’ The CLRA defines ‘goods’ as ‘tangible chattels bought or
leased for use primarily for personal, family, or household purposes’, and
‘services’ as ‘work, labor, and services for other than a commercial or business
use, including services furnished in connection with the sale or repair of
goods.’ ” (Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29,
3940 [185 Cal.Rptr.3d 84], internal citations omitted [mortgage loan is neither
a good nor a service].)
• “[A] ‘reasonable correction offer prevent[s] [the plaintiff] from maintaining a
cause of action for damages under the CLRA, but [does] not prevent [the
plaintiff] from pursuing remedies based on other statutory violations or common
law causes of action based on conduct under those laws.’ ” (Valdez, supra, 33
Cal.App.5th at p. 612.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
Wiseman & Reese, California Practice Guide: Civil Procedure Before Trial Claims
& Defenses, Ch. 14(II)-B, Consumers Legal Remedies Act - Elements of Claim,
¶ 14:315 et seq. (The Rutter Group)
Cabraser, California Class Actions and Coordinated Proceedings, Ch. 4, California’s
Consumer Legal Remedies Act, § 4.01 et seq. (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 1,
Determining the Applicable Law, 1.33
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