Gerash v. Verizon Online

 

 

 

 

 

 

 

 

 

Filed 6/14/13  Gerash v. Verizon Online CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

GERALD A. GERASH,               Plaintiff and Appellant,               v.   VERIZON ONLINE LLC et al.,               Defendants and Respondents.

B239823         (Los Angeles County       Super. Ct. No. BC459508)   >ORDER MODIFYING OPINION >and >DENYING PETITION FOR >REHEARING [NO CHANGE IN JUDGMENT]

 

THE COURT:

            IT IS
ORDERED that the opinion filed in the above-captioned matter on May 16, 2013, be href="http://www.mcmillanlaw.com/">modified, due to clerical error, to
correct the inadvertent omission of portions of the text.  The modifications are as follows:

 

1.         On page 7,
delete the first paragraph and replace it with the following two
paragraphs: 

Third, plaintiff
asserts that Brewer’s “new
right–exclusive remedy” principle does not apply because the doctrine relates
to remedies (which plaintiff equates with damages), “not [to] which court has
jurisdiction.”  Plaintiff is again off
the mark.  The right to sue is a remedy.  (Lew v.
Superior Court (1993) 20 Cal.App.4th 866, 872 [describing “an action for
damages in small claims court” as a “remedy”].)

Fourth, plaintiff
points to Civil Code section 1428.  That
section states in part that “[a]n obligation arising from operation of law may
be enforced in the manner provided by law, or by civil action or proceeding.”  Plaintiff seems to think this means he can
enforce his section 1722 rights either
in small claims court (“in the manner provided by law”) or outside small claims court (“by civil action or
proceeding”).  That is not what Civil
Code section 1428 means.  It simply means
that where a right is given by statute without
any prescribed remedy, “‘it may be enforced by any appropriate method recognized by the general
law of procedure.’”  (3 Witkin, Cal.
Procedure (5th ed. 2008) Actions, § 4, p. 66 [“‘This principle is crystallized
in section 1428 of the Civil Code.’”]; see also Palo Alto, supra, 65
Cal.App.3d at p. 131 [observing that a party aggrieved by violation of a new
right created by statute “is confined to the statutory remedy if one is
provided [citation]; otherwise any appropriate common law remedy may be
resorted to,” citing Civ. Code, § 1428].)

 

2.         On page 7,
replace the entire third paragraph (beginning with “Finally”) with the
following two paragraphs and intervening heading, including a new footnote 2 at
the end of the first paragraph:

Finally, plaintiff
contends, by way of footnote, that if he is limited to small claims court
(which he is), “the more appropriate procedure was for the trial court to
reclassify the case for the small claims division of the court” rather than to
dismiss the case.  Plaintiff cites no
case authority for this contention, and did not suggest this procedure to the
trial court.  We see no reason why a
general jurisdiction court should not dismiss a case that may be brought only
in small claims court.  Plaintiff points
out that an action that is reclassified—presumably as a limited civil case (see
Code Civ. Proc., § 403.030), which may be brought in the small claims division
if the case is within its jurisdiction (id.,> § 87)—is deemed to have been commenced
when the complaint was initially filed, rather than at the time of
reclassification.  (Id., § 403.070, subd.
(a).)  But plaintiff makes no claim that
the statute of limitations has expired or will expire before he can file his
small claims suit, so we see no prejudice to plaintiff in any event.²

2.                 
Judicial
Notice and the “Utility” Issue

We would ordinarily
have nothing more to say about plaintiff’s section 1722 claim in small claims
court.  But defendants asked the trial court
to, and the trial court did, take judicial notice of documents purporting to
show that defendant Verizon Online is not a utility and therefore not subject
to section 1722.  The trial court
included the latter ruling in the judgment of dismissal, so that the judgment
expressly states as a matter of law that Verizon Online is not subject to
section 1722.  This was error.

           

3.                 
Add the text of new footnote 2, as follows:

Plaintiff alleges
Verizon’s conduct occurred in February and March 2011.  The statute of limitations for “[a]n action
upon a liability created by statute, other than a penalty or forfeiture,” is
three years.  (Code Civ. Proc., § 338,
subd. (a).)

 

4.                 
On page 10, change the number of the heading now
numbered “2” to “3.”

 

5.                 
On page 14, change the number of the heading now
numbered “3” to “4.”

 

            These
modifications do not change the judgment. 
The petition for rehearing is denied.

 

____________________________________________________________________

BIGELOW, P. J.                                            RUBIN,
J.                                           GRIMES,
J.

Filed 5/16/13 
Gerash v. Verizon Online CA2/8 (unmodifed version)

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

GERALD A. GERASH,               Plaintiff and Appellant,               v.   VERIZON ONLINE LLC et al.,               Defendants and Respondents.

B239823         (Los Angeles County       Super. Ct. No. BC459508)

 

 

            APPEAL from
a judgment of the Superior Court for the County of Los Angeles.  David L. Minning, Judge.  Affirmed as modified.

 

            Johnson
& Johnson, Douglas L. Johnson and Nicholas A. Kurtz for Plaintiff and
Appellant.

 

            Munger,
Tolles & Olson, Henry Weissmann, James C. Rutten and Aaron G. Liederman for
Defendants and Respondents.

.          

____________________________________

 

>SUMMARY

            Civil Code
section 1722 (hereafter section 1722) is a peculiar and obscure statute that
applies only to utilities, cable television companies and retailers.  Enacted in 1989, before widespread consumer
use of the Internet, the part of the statute on which plaintiff relies requires
utilities to inform their subscribers of their right to service connection or
repair within an agreed upon four-hour period, and allows an action in small
claims court, for actual damages not exceeding $600 if the service or repair is
not begun within the agreed period.  (The
damages limit was $500 until a 2002 amendment raising it to $600.)  Plaintiff Gerald A. Gerash brought a class
action lawsuit in superior court against Verizon Online LLC and Verizon
California, Inc., alleging violation of section 1722 (and, based on the same
conduct, causes of action for negligence and for violation of the unfair
competition law (UCL) and Consumer Legal Remedies Act (CLRA)).

            We hold
plaintiff’s exclusive remedy under section 1722 lies in small claims court and
therefore affirm the trial court’s judgment of dismissal sustaining the
defendants’ demurrer on that ground.  The
trial court erred, however, in taking judicial notice of documents offered by
defendants to establish that Verizon Online is an internet service provider and
not a utility subject to section 1722. 
We also reject defendants’ contention that plaintiff alleged no conduct
by Verizon California, which is conceded to be a utility.  The complaint alleged both defendants
contracted with plaintiff to “upgrade his DSL (internet) speed and change his
phone service.”  We need not decide
whether Verizon California infringed plaintiff’s section 1722 rights, as we
accept as true all material facts alleged in the complaint on an appeal from
the sustaining of a demurrer.  We
conclude the trial court properly dismissed all of plaintiff’s other causes of
action. 

Accordingly, we affirm the judgment
of dismissal, but order the judgment modified to the extent it purports to
preclude plaintiff from filing a cause of action against Verizon Online in
small claims court for violation of section 1722.

>FACTS

            Plaintiff’s
complaint refers to the two defendant companies collectively as “Verizon.”  He alleges he has been a “Verizon DSL and
Verizon Wireless customer for many years.” 
He entered a one-year contract with Verizon on February 28, 2011, “to
upgrade his DSL (internet) speed and change his phone service.”  This contract is not in the record.

Verizon told him the change in DSL
service would occur after a Verizon technician provided in-home service, to
occur in about four days.  Without
notice, his internet connection was disconnected an hour later.  He called Verizon on March 2 to ask what
happened and was told the new DSL speed would be installed the next day, during
a 10-hour window of time.  Verizon
changed the March 3 date to March 4, and on March 4 told plaintiff “that a
technician would need to come to [his] home.” 
A technician was scheduled to come on March 5, but on that date
plaintiff received a recorded telephone message telling him a technician would
come on March 6, between 8:00 a.m. and 8:00 p.m.  Verizon continued to postpone and reschedule
appointments, and plaintiff repeatedly had to wait at home for technicians who
did not arrive. 

On March 9, nine days after Verizon
disconnected his service, a Verizon technician came to plaintiff’s home and
“performed the necessary adjustments to reconnect his internet access, and
install his new DSL speed and phone service.” 
During those nine days, plaintiff went to restaurants and coffee houses
and had to pay them to access their internet service.

Plaintiff sued, alleging the facts
just described and including class action allegations.  He also alleged that “Verizon’s recording to
its customers tells them to wait in their homes for 12 hours for service
calls.”  Defendants “have kept numerous
customers waiting in their homes for Defendants [sic] services in excess of four hours” and “have failed to inform
their customers of their right to have services performed within
four[]hours.”  Plaintiff alleged causes
of action for violation of section 1722, unfair business practices under the
UCL (Bus. & Prof. Code, § 17200 et seq.), violation of the CLRA (Civ. Code,
§ 1750 et seq.), and negligence. 

Defendants demurred to the first
amended complaint.  Defendants argued
that (1) all causes of action against Verizon Online should be dismissed
because, “as a matter of judicially noticeable fact,” Verizon Online provides internet
services, not public utility services, and is therefore not a “utility” subject
to section 1722; and (2) although Verizon California “actually >is a public utility,” plaintiff “[did]
not allege any facts indicating that this local telephone company violated the
statute.”  Defendants relied on the
Public Utility Code’s definition of “public utility,” which includes telephone
corporations but not internet service providers,href="#_ftn1" name="_ftnref1" title="">^[1] and sought judicial notice of several exhibits
purporting to show that the California Public Utilities Commission (CPUC)
regulates telephone utilities, that Verizon Online is not on the CPUC’s website
list of telephone utilities it regulates, and that Verizon Online’s terms of
service state that it does not offer telephone services. 

The trial court took judicial
notice of the documents just described, and sustained the demurrer without
leave to amend.  The court’s written
order entering final judgment for defendants specified that the demurrer to
plaintiff’s section 1722 claim was sustained without leave to amend on the
ground that an action in small claims court is the exclusive remedy and, with
respect to Verizon Online, on the ground that it was not a utility subject to
section 1722.  The judgment of dismissal
further states that plaintiff “remains free to file this cause of action
against Verizon California in small claims court if he so chooses.”  The court also found plaintiff’s other claims
were not actionable.

This appeal followed.

>DISCUSSION

A demurrer tests the legal sufficiency
of the complaint.  We review the
complaint de novo to determine whether it alleges facts sufficient to state a
cause of action.  For purposes of review,
we accept as true all material facts alleged in the complaint, but not
contentions, deductions or conclusions of fact or law.  We also consider matters that may be
judicially noticed.  (>Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)  When a demurrer is sustained
without leave to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment: 
if it can be, the trial court has abused its discretion and we reverse;
if not, there has been no abuse of discretion and we affirm.”  (Ibid.)  Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of action.  (Ibid.)

1.                 
The
Exclusive Remedy for a Section 1722 Violation

All of plaintiff’s causes of action
rest on the premise that Verizon violated section 1722.  Section 1722 requires cable television
companies and utilities to inform their subscribers of their right to service
connection or repair within a four-hour period if the presence of the
subscriber is required.  (§ 1722, subds.
(b)(1) & (c)(1).)  Similar
requirements apply to the delivery and service or repair of merchandise by
retailers.  (§ 1722, subd. (a)(1).)  If the service connection or repair is not
begun within the agreed four-hour period, except for delays caused by
unforeseen or unavoidable circumstances, “the subscriber may bring an action in
small claims court against the [company or] utility for lost wages, expenses
actually incurred, or other actual damages not exceeding a total of six hundred
dollars ($600).”  (Id., subds. (b)(2) & (c)(2).) 


Plaintiff asserts he may also bring
an action in superior court, but the authorities are clear that he may
not.  “‘[W]here a statute creates
new rights and obligations not previously existing in the common law, the
express statutory remedy is deemed to be the exclusive remedy available for
statutory violations, unless it is inadequate.’”  (Brewer
v. Premier Gulf Properties, LP (2008) 168 Cal.App.4th 1243, 1252 (>Brewer), quoting De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa
Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912 (De Anza); see also Palo
Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976)
65 Cal.App.3d 121, 131 (Palo Alto)
[“Where a new right is created by statute, the party aggrieved by its violation
is confined to the statutory remedy if one is provided.”].)  Brewer refers
to this principle as the “‘new right–exclusive remedy’ doctrine.”  (Brewer,
at p. 1252.)  Accordingly, because
section 1722 creates new rights and obligations that are unrelated to any
common law rights and obligations, the remedy provided by the statute is
plaintiff’s exclusive remedy.

Plaintiff does not contend the
small claims remedy is inadequate, yet insists he can sue in superior court to
recover the remedies enumerated in section 1722. 

First, plaintiff cites statutory
construction principles differentiating discretionary action (“may”) from
mandatory action (“shall”), and concludes that because the statute says he
“may” bring an action in small claims court, he is not required to do so.  Plaintiff fundamentally misreads the
statute.  He may choose to sue or not to
sue, but if he does sue, there is only one place to do so:  small claims court.  Section 1722 is directed at a small problem,
the annoyance and lost wages that can accompany delays in service repairs, for
which the Legislature provided a small remedy not to exceed $600, recoverable
in small claims court.  If the
Legislature had meant to permit consumers whose section 1722 rights are
infringed to sue in small claims court or in some other court of plaintiff’s
choosing, the statute would not have specified the remedy is recoverable in
small claims court.

Second, plaintiff cites >Mims v. Arrow Financial Services, LLC (2012)
565 U.S. ___ [132 S.Ct. 740].  >Mims,
in the course of a discussion of concurrent jurisdiction, stated a
“‘general rule that the grant of jurisdiction to one court does not, of itself,
imply that the jurisdiction is to be exclusive.’”  (Id. at
p. 749.)  Mims does not apply here.  >Mims held that, where a federal consumer
protection statute contained a permissive grant of jurisdiction to state
courts, federal and state courts had concurrent jurisdiction over private suits
arising under the statute.  (>Ibid.; id. at p. 745 [“We find no convincing reason to read into the
[statute’s] permissive grant of jurisdiction to state courts any barrier to the
U.S. district courts’ exercise of the general federal-question jurisdiction
they have possessed since 1875.”].) 
Principles of concurrent state and federal court jurisdiction are not
relevant to the “new right–exclusive remedy” principle of California law. 

Third, plaintiff asserts that >Brewer’s “new right–exclusive remedy”
principle does not apply because the doctrine relates to remedies (which
plaintiff equates with damages), “not [to] which court has jurisdiction.”  That is not what Civil Code section 1428
means.  It simply means that where a
right is given by statute without any
prescribed remedy, “‘it
may be enforced by any appropriate method recognized by the general law of
procedure.’”  (3 Witkin, Cal. Procedure
(5th ed. 2008) Actions, § 4, p. 66 [“‘This principle is crystallized in section
1428 of the Civil Code.’”]; see also Palo
Alto, supra, 65 Cal.App.3d at p.
131 [observing that a party aggrieved by violation of a new right created by
statute “is confined to the statutory remedy if one is provided [citation];
otherwise any appropriate common law remedy may be resorted to,” citing Civ.
Code, § 1428].)

In sum, section 1722 admits of no
ambiguity or doubt:  it permits an action
in small claims court for a statutory right that has never existed at common
law.  Accordingly, that remedy is
exclusive.  (Brewer, supra,> 168 Cal.App.4th at p. 1252; >De Anza, supra, 94 Cal.App.4th at p. 912; Palo Alto, supra,> 65 Cal.App.3d at p. 131.)

Finally, plaintiff contends, by way
of footnote, that if he is limited to small claims court (which he is), “the
more appropriate procedure was for the trial court to reclassify the case for
the small claims division of the court” rather than to dismiss the case.  This was error.

Defendants contend that Verizon Online
is not a utility and that, while Verizon California is a public utility,
plaintiff “failed to allege that Verizon California did anything, much less anything to violate the law.”  That is not the case.  We must accept as true the allegations of the
complaint, and the complaint alleges both defendants contracted with him to
“upgrade his DSL (internet) speed and change his phone service,” and that a
Verizon technician eventually “performed the necessary adjustments to reconnect
his internet access, and install his new DSL speed and phone service.”  We cannot decide on this record which Verizon
entities participated in the conduct allegedly violating section 1722. 

We turn then to the question of
judicial notice of documents purporting to establish that Verizon Online is not
a utility subject to section 1722.  We
take no position on whether, if judicial notice were proper, the documents
proffered would establish that Verizon Online is not a utility within the
meaning of section 1722.  The documents
defendants offered to establish that Verizon Online provides internet services,
not public utility services, were not properly subject to judicial notice. 

The three documents presented were
(1) a CPUC publication entitled “Regulatory Responsibilities of the [CPUC],”
describing the CPUC’s responsibility for regulating telecommunications
utilities, among others;  (2) a printout
of a portion of the CPUC’s website called “Utility Contact System Search,”
which displays search results for “Verizon” in the CPUC’s database for all
telephone corporations operating in California 
(showing that Verizon California is on the list, but Verizon Online is
not);  and (3) Verizon Online’s “Terms of
Service”  (demonstrating, defendants
asserted, but without identifying any particular provision, that Verizon Online
is an internet service provider, not a telephone corporation).

Defendants contend the two CPUC
documents are subject to judicial notice under Evidence Code section 452,
subdivision (c) as “[o]fficial acts of the . . . executive
. . . department[]” of the State of California.  All three documents, they say, are “publicly
available on the internet” and therefore are judicially noticeable as “[f]acts
and propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.”  (Evid. Code, §
452, subd. (h).)  We cannot agree with
defendants on either point.

In Hartwell Corp. v. Superior Court (2002) 27 Cal.4th
256, the Supreme Court denied the plaintiffs’ request for judicial notice “of
what appear to be Internet articles found on a DHS [Department of Health
Services] Web site.”  The articles
indicated that a certain chemical was “an unregulated chemical that required
monitoring.”  The court agreed with
defendants that “the articles contain unauthenticated statements with no indication of
author, custodian, date of creation, purpose, reliability, or veracity.”  (Id. at p. 279, fn. 12; see also Conlan
v. Shewry (2005) 131 Cal.App.4th 1354, 1364 (Conlan) [refusing to take judicial notice of a California State
Auditor’s report under Evid. Code, § 452, subd. (h); “[b]eyond the mere fact
that the report exists, the availability of the report on the Internet hardly
renders the content of the report ‘not reasonably subject to dispute’”].)

To support their claim that
documents from the CPUC’s website are “official acts” of the State of
California, defendants cite Southern Cal. Gas Co. v. City of Vernon (1995)
41 Cal.App.4th 209, 216 and footnote 3 (taking judicial notice of the CPUC’s
General Order No. 112-D, establishing minimum requirements for design, etc., of
facilities used for gas transmission and distribution), and Hogen v. Valley
Hospital (1983) 147 Cal.App.3d 119, 125 (taking judicial notice of certain
files of the Board of Medical Quality Assurance relating to a report by the
respondents in that case to the Board and to the charges ultimately brought
against the appellant).  Neither case
involves, as here, an unauthenticated printout from the Internet, much less a
printout of search results with no indication of who ran the search or of the
reliability, date of creation, or anything else concerning the underlying
database.  Moreover, the results of a
search of a government database simply cannot be said to be an “official act”
of the State of California.

Defendants cite only one case, Ampex
Corp. v. Cargle (2005) 128 Cal.App.4th 1569, to support their contention
that the documents—including Verizon Online’s terms of service—are judicially
noticeable because they are “publicly available on the Internet”  and therefore are “[f]acts and propositions
. . . not reasonably subject to dispute and . . . capable
of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.”  (Evid. Code, §
452, subd. (h).)   Ampex is not instructive here. 
Ampex was a defamation case where defendant posted messages
critical of plaintiff Ampex on an internet message board.  Various computer printouts from Ampex’s
website and the Yahoo message board were offered to show that they existed in
the public eye; they were not offered for the truth of the matter asserted and
thus were not hearsay.  So, judicial
notice was proper.  That is not this
case.

Accordingly, the CPUC documents are
not subject to judicial notice either as 
official acts (Evid. Code, § 452, subd. (c)) or because they are
“publicly available on the internet”  and
therefore “not reasonably subject to dispute” under Evidence Code section 452,
subdivision (h).  Nor is the document
stating Verizon Online’s Terms of Service subject to judicial notice under that
subdivision.  It is unauthenticated
hearsay.  As Conlan pointed out, the availability of a document on the Internet
“hardly renders the content of the [document] ‘not reasonably subject to
dispute.’”  (Conlan, supra,> 131 Cal.App.4th at p. 1364.)>

Because we are not persuaded
judicial notice is proper, the judgment entered by the trial court will be
modified to the extent it purports to preclude plaintiff from suing Verizon
Online in small claims court.

2.                 
Plaintiff’s
Other Causes of Action Were Properly Dismissed

Plaintiff contends the trial court
erred in dismissing the three other causes of action he alleged.  We disagree.

a.     
Unfair
business practices

An unfair business practices claim under
Business and Professions Code section 17200 is an equitable action by which a
plaintiff may recover money or property obtained from the plaintiff through
unfair or unlawful business practices.  “By proscribing ‘any
unlawful’ business practice, ‘section 17200 “borrows” violations of other laws
and treats them as unlawful practices’ that the unfair competition law makes
independently actionable.”  (>Cel-Tech Communications, Inc. v. Los Angeles
Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)  A practice “may be deemed unfair even if not
specifically proscribed by some other law.” 
(Ibid.)  Thus, a practice “‘“is prohibited as ‘unfair’
or ‘deceptive’ even if not ‘unlawful’ and vice versa.”’”  (Ibid.)

i.       >The “unfair” prong

Plaintiff argued he should be
granted leave to amend to allege additional facts in support of the “unfair”
prong, seeking an injunction.  Plaintiff
acknowledged in briefing and at oral argument that the $600 remedy in Civil
Code section 1722 is adequate to compensate for lost wages and expenses
incurred by the delay in restoring and upgrading his internet service.  But he wants an injunction to make defendants
offer a four-hour window of service to protect consumers from the annoyance and
frustration of waiting in their homes for defendants’ services longer than four
hours.

Various tests have been applied to
define the standard for relief under the “unfair” prong of the UCL.  One of them involves “‘weigh[ing] the utility of
the defendant’s conduct against the gravity of the harm to the alleged
victim.’”  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93
Cal.App.4th 700, 718  Another says a
practice is unfair when it “‘“offends an established public policy or when the
practice is immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers.”’”  (Id. at
p. 719.)  Still another says that
an unfair practice predicated on public policy “‘must be “tethered” to specific
constitutional, statutory or regulatory provisions.’”  (Scripps
Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.)  And yet another uses the factors that define
unfairness under section 5 of the Federal Trade Commission Act (15 U.S.C. § 41
et seq.), one of which is that the consumer injury must be substantial.  (Camacho
v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394,
1403.) 

            Plaintiff has not stated how
he might amend the complaint to allege an unfair business practice under any of
these definitions.  Plaintiff has
never said what additional facts he might allege.  At oral argument, he said he might uncover
additional facts in discovery.  But a
plaintiff does not need discovery to know what injury he has suffered.  On this record, we are not persuaded
plaintiff has or can allege a UCL claim under the “unfair” prong of the
statute.

>                                                         
ii.     
The “unlawful”
prong

Plaintiff contends that, since the trial
court found he may file a small claims action under section 1722, then
necessarily he can state a UCL claim under the “unlawful” prong. 

Section 1722 does not forbid, prohibit,
or proscribe any business practice or declare any conduct to be unfair,
unlawful or otherwise against the law. 
It is a sui generis statute that requires utilities and a few others to
provide their customers with a four-hour period for service connection or
repair and caps any recovery for an untimely repair at $600.  In creating the small claims remedy for a
practice that nothing in the common law or any statute has ever prohibited or
declared to be an impediment to fair competition in commercial markets, the
Legislature cannot have intended to brand a violation of section 1722 as
“unlawful” within the meaning of the UCL.

b.     
The
CLRA claim

Plaintiff alleged defendants’
conduct also violated the CLRA, specifically Civil Code section 1770,
subdivision (a)(14).  That provision
states:  “(a)  The following 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 are unlawful: 
[¶] . . . [¶] 
(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.” 

The CLRA provision plaintiff cites does not
apply. 

First, plaintiff’s complaint does
not rest on a representation or omission in a transaction “intended to result or which
results in the sale or lease of goods or services.”  (Civ. Code, § 1770, subd. (a).)  Plaintiff already had Verizon internet
service.  He contracted “to upgrade his
DSL (internet) speed and change his phone service.”  After he made his new contract, his service
was disconnected and it took nine days to restore, all of which was
inconvenient for him.  But the CLRA was
not intended to remedy postcontractual statements or omissions that result in
inconvenience for the customer.  (Cf. >Stickrath v. Globalstar, Inc. (N.D. Cal.
2007) 527 F.Supp.2d 992, 996 [CLRA protects “only plaintiffs who have suffered
harm ‘as a result of’ defendants’ unlawful or unfair practices”; the plaintiffs
failed to allege “that any of the misrepresentations were made before
Plaintiffs’ purchase” or that the representations were a substantial factor in
the plaintiffs’ decision to purchase the service].) 

Second, even had plaintiff cleared
the first hurdle, he stumbles on the second; he does not and cannot allege
defendants “[r]epresent[ed]
that a transaction . . . involv[ed] . . . obligations which
it does not . . . involve . . . .”  (Civ. Code, § 1770, subd. (a)(14).)  An “obligation” is defined in the Civil Code
as a “legal duty, by which a person is bound to do or not to do a certain
thing.”  (Id., § 1427.)  Plaintiff
contends there was an “obligation for [plaintiff] to stay in his home while he
awaited service, as this was the only way his Internet connection would be
restored.”  While as a practical matter,
either plaintiff or someone else had to let the technician enter, that is not
the sort of “obligation” to which the CLRA
refers, and indeed it is not an “obligation” at all.  (See, e.g., Webster’s 10th Collegiate Dict.
(2001), p. 800, col. 1 [defining “obligation” as “the action of obligating
oneself to a course of action (as by a promise or vow)”; “something (as a
formal contract, a promise, or the demands of conscience or custom) that
obligates one to a course of action”].) 
Plaintiff has never alleged
defendants told him he had an “obligation” to stay home within any reasonable
meaning of that term.

c.      >The negligence claim>

Plaintiff contends that defendants
had a legal duty to inform him of the statutory four-hour window, and that
their failure to do so constituted negligence, relying on the negligence per se
doctrine. 

First, plaintiff’s negligence cause
of action fails because defendants owed no duty of care to plaintiff to protect
him from the annoyance of being without service and being inconvenienced by the
technician.  No such duty exists in
common law, and not every statutory “duty” is a duty to exercise due care.  Second, section 1722 does not create a
negligence per se cause of action. 
Negligence per se is an evidentiary doctrine under which a person’s
failure “to exercise due care” is presumed if he violated a statute, the
violation “proximately caused death or injury to person or property”; the death
or injury “resulted from an occurrence of the nature which the statute
. . . was designed to prevent”; and the “person suffering the death
or the injury to his person or property was one of the class of persons for
whose protection the statute . . . was adopted.”  (Evid. Code, § 669.)

The negligence per se doctrine does
not apply where, as here, there is no cause of action for negligence.  (Rosales
v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430 [“‘[a]n underlying
claim of ordinary negligence must be viable before the presumption of
negligence of Evidence Code section 669 can be employed’”; “‘“it is the tort of
negligence, and not the violation of the statute itself, which entitles a
plaintiff to recover civil damages”’”; the “presumption of negligence created
by Evidence Code section 669 concerns the standard of care, rather than
the duty of care”].)  And if that
principle were not enough, in any event the presumption of negligence requires
“death or injury to person or property.” 
(Evid. Code, § 669, subd. (a)(2); see also California Service Station etc. Assn. v. American Home Assurance Co. (1998)
62 Cal.App.4th 1166, 1178 [“‘Nearly all the cases in which the presumption of
negligence under Evidence Code section 669 has been applied involve what may be
termed “safety” statutes, ordinances or regulations, that is, governmentally
designed standards of care intended to protect a particular class of persons
from the risk of particular accidental injuries.’”].) 

3.                 
Amendment
of the Complaint

Finally, plaintiff contends the trial
court abused its discretion in not allowing him to amend his complaint.  As to his section 1722 claim, his desire to
allege that defendants are “retailers” under section 1722 is moot in view of
our conclusion that plaintiff’s only remedy is in small claims court.  And as to his other causes of action, he says
only that he could allege “additional facts” without saying what they are.  This does not meet plaintiff’s burden to show
a reasonable possibility the complaint could be amended to state a cause of
action.  (Blank v. Kirwan, supra,
39 Cal.3d at p. 318.)

>DISPOSITION

            The judgment of dismissal is modified to eliminate all
statements indicating that Verizon Online is not a utility subject to section
1722 and that plaintiff alleged no facts against Verizon California.  As so modified, the judgment of dismissal is
affirmed.  Defendants shall recover their
costs on appeal.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

                                                                                                GRIMES,
J.

 

WE CONCUR:

 

 

 

                        BIGELOW, P. J.                   

 

 

 

                        RUBIN, J.