CACI 4700 Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770)

California Civil Jury Instructions CACI

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].]

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.

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 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. 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 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.” (Gutierrezsupra, 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.” (Bradysupra, 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.” (Bradysupra, 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.’ ” (Gutierrezsupra, 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 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.’ ” (Gutierrezsupra, 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, 39−40 [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.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims & Defenses, Ch.1 4(II)-B, 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