In Rojas v. Platinum Auto Group, Inc. — Cal.Rptr.3d —-, 2013 WL 156561 (Cal.App. 2 Dist. 2013), the California Court of Appeal required strict compliance under Rees-Levering, finding that a dealer’s error of improperly listing a $2,000 ‘down-payment’ on the downpayment line (line 6G) of the standard auto RISC as opposed to the ‘deferred downpayment’ line (line 6D) rendered the sales contract unenforceable and allowed the purchaser to recover all amounts paid under it. (Civ. Code § 2983.) Substantial compliance is not a defense to a Rees-Levering Act violation except in the narrowest of circumstances as the recent amendment to eliminate “lumping” claims proves. Furthermore, $250 of the deferred downpayment was not truly a downpayment which the statute defines as a payment due before the second installment on the contract must be paid. The Court of Appeal explained:
The Automobile Sales Finance Act, and its modern incarnation as Rees– Levering, are codified at section 2981 et seq. Broadly speaking, Rees– Levering is a consumer protection law governing the sale of cars in which the buyer finances some, or all, of the car’s purchase price. (See, e.g., Pierce v. Western Surety Co. (2012) 207 Cal.App.4th 83, 91; Salenga v. Mitsubishi Motors Credit of America, Inc. (2010) 183 Cal.App.4th 986, 998.) Rees– Levering requires a car dealer to disclose in a single document, which the parties here call a Retail Sales Installment Contract, all the terms and conditions of sale. (§ 2981.9.) In dis-closing those terms, the sales contract must itemize the purchaser’s down payment. That itemization must state the following (the statutory analogues for the mislabeling by Platinum at issue in this appeal are italicized): “(A) The agreed value of the property being traded in. [¶] (B) The prior credit or lease balance, if any, owing on the property being traded in. [¶] (C) The net agreed value of the property being traded in…. [¶] (D) The amount of any portion of the downpayment to be deferred until not later than the due date of the second regularly scheduled installment under the contract…. [¶] (E) The amount of any manufacturer’s rebate…. [¶] (F) The remaining amount paid or to be paid by the buyer as a downpayment. [¶] (G) The total downpayment ….“ (§ 2982, subd. (a)(6), italics added.) ¶ Platinum’s violation of Rees– Levering involving appellant’s down payment was two-fold. First, Plati-num misstated the down payment’s nature by labeling it as a “Remaining Cash Down Payment” tendered at the time of sale (§ 2982, subd. (a)(6)(F)) instead of a “Deferred Down Payment” (§ id. subd. (a)(6)(D)). As a consumer protection and disclosure statute, Rees– Levering provides that unless “dealers disclose correct information the disclosure itself is meaningless and the informational purpose of the [statute] is not served.” ( Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1005.) In enacting Rees– Levering, the Legislature created separate categories for cash put down at the time of sale and for a deferred down payment. Because the Legislature drew the distinction, we cannot conflate the two types of down payments as if they are one and the same. ¶ Scond, in addition to misstating the down payment’s nature, Platinum misstated the down payment’s amount. Rees– Levering defines a down payment as money paid before the buyer’s second scheduled loan payment. Section 2981, subdivision (f) states a “ ‘[d]ownpayment’ means a payment that the buyer pays or agrees to pay to the seller … at or prior to delivery by the seller to the buyer of the motor vehicle…. The term shall also include the amount of any portion of the downpayment the payment of which is deferred until not later than the due date of the second otherwise scheduled payment [under the buyer’s car loan]….” (Italics added.) Appellant’s second scheduled loan payment was December 4, 2010. Appellant made the first three of his four deferred payments before December 4: $1,000 on October 11, 2010; $500 on October 27, 2010; and $250 on November 20, 2010. Those three payments totaled $1,750. He made his final payment of $250 after December 4 on December 23, 2010. This last payment did not satisfy the statute’s definition of a down payment. (§ 2981, subd. (f), see also § 2982, subd. (a)(6)(D) [not a down payment if after second scheduled loan payment].) Thus, regardless of whether appellant’s down payment was cash upfront at the time of sale or deferred, his total down payment under the statute’s definition was $1,750, not $2,000 as Platinum stated in the sales contract.¶ If an auto dealer misstates or conceals terms of a car sale, the sales contract is unenforceable and the buyer may recover the total amount paid to the seller. (§ 2983.) Nevertheless, the trial court sustained respondents’ demurrers because it concluded Platinum’s mischaracterization of appellant’s down payment did not injure appellant in that the sales contract accurately stated essential terms of the contract such as the car’s purchase price and the interest rate on appellant’s car loan. In finding no injury, the trial court relied on the substantial compliance doctrine applied by our Supreme Court in Stasher v. Harger–Haldeman (1962) 58 Cal.2d 23 (Stasher ) to Rees– Levering’s predecessor statute. The trial court’s reliance on Stasher was misplaced because the Legislature has rejected its application to the type of non-disclosure at issue here. . . . ¶ . . . The 2012 amendment thus eliminated the right of rescission for mislabeling government fees. Under the long-standing statutory interpretation principle “ex-pressio unius exclusius alterius est ” (to express one thing is to exclude others), the Legislature’s declaration that a sales contract remains enforceable if its only erroneous nondisclosure involves certain governmental fees (§ 2983, subd. (b)), means that rescission remains available for the contract’s noncompliance with other disclosure requirements – for example, truthful and accurate disclosure of the down payment. ¶ The Legislature’s statement of intent in enacting the amendment underscores that a car buyer need not suffer economic damage to rescind a sales contract that does not comply with Rees– Levering. “The Legislature finds and declares as follows: [¶] (a) The Rees– Levering Act … sets forth a statutory scheme to regulate the retail sale and financing of motor vehicles. The act contains detailed disclosure requirements intended to protect the consuming public and includes provisions that render a conditional sale contract unenforceable if any of those disclosure requirements are violated, regardless of the nature of the disclosure violation or any consumer harm.” (Legis. Counsel’s Dig., Assem. Bill No. 238 (2011–2012 Reg. Sess.) 9 Stats.2011, Summary Dig., p. 5039, italics added.) ¶ In short, the purpose and history of Rees– Levering establish that appellant need not have suffered actual damage from Platinum’s violation of the stat-ute’s disclosure requirements, and that Stasher ‘s sub-stantial compliance rule has been statutorily removed. Appellant could state a claim for relief under the act based on Platinum’s misstatements about appellant’s down payment even if the trial court deemed the misstatements “trivial.”
The Court of Appeal also found that the Plaintiff might be able to state a claim under the CLRA, explaining:
Appellant alleges respondents violated the Con-sumers Legal Remedies Act by mischaracterizing his down payments, misstating the amount of his down payment, and misstating the number of his loan payments under the sales contract. Respondents demurred on the ground that appellant did not allege any actual damages. Indeed, respondents’ demurrers argued the deferral of appellant’s down payment benefitted appellant because it eased his cash flow by letting him come up with $2,000 over several months instead of all at once at the time of purchase. In sustaining the demurrers, the trial court did not specifically address appellant’s cause of action for violation of the Consumers Legal Remedies Act, but the court’s ruling did state that mischaracterization of the down payment did not result in “any loss or damage” to appellant. The court thereafter sustained the demurrers without leave to amend. A “[t]angible increased cost or burden to the consumer” satisfies the damages element of a cause of action for violation of the Consumers Legal Remedies Act. (See Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643.) Appellant asserted in his brief that Platinum’s false statements about his down payment exposed him to potential liability for deceiving his lender. Additionally, the misstatement may have made him eligible for a loan for which he might not have qualified if the lender had known he did not have the financial wherewithal to have made a $2,000 down payment upfront. While at first blush qualifying for a loan for which appellant was possibly unqualified may seem a benefit, it is a benefit which, as newspaper reports reveal today, could come back to haunt him if he cannot repay the loan. (See Stasher, supra, 58 Cal.2d at p. 32 [sales contracts “involving false or fictitious items in the statement of down payment [can] reasonably mislead either the buyer or a third party subsequently financing the sale”].) ¶ Nevertheless, as alleged in the complaint – as opposed to his appellate briefs – appellant’s allegations of injury are vague and do not at this point in time support the assertions he has made in his brief that he might encounter an added burden in repaying the loan, nor has he alleged how Platinum’s mischaracterization of the down payment might otherwise work to his detriment. Thus, the trial court did not err in finding appellant had not stated a cause of action under the Consumers Legal Remedies Act. Appellant claims on appeal that he can amend his complaint to allege actual, non-speculative damages. Accordingly, remand to the trial court to permit appellant to amend his complaint is proper.
Finally, the Court of Appeal similarly stated that a UCL claim might be pleaded on remand.
Respondents demurred on the grounds that appellant did not allege “substantial injury.” Without specifically addressing appellant’s third cause of action for unfair business practices, the court sustained respondents’ demurrers without leave to amend, stating that mischaracterizing appellant’s down payment did not result in “any loss or damage to” appellant. A plaintiff suing under the Unfair Business and Practice Act must allege “a loss or deprivation of money or property sufficient to qualify as injury in fact.” ( Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.) The trial court correctly found that, as alleged in the complaint, appellant had not stated a cause of action for unfair business practices. However, appellant argues on appeal that he should be allowed to amend. He argues: “[Appellant] has been damaged by making payments pursuant to an unenforceable and void contract. Platinum made false and fraudulent misrepresentations to the lender on behalf of [appellant], which constituted a fraud on the lender and exposed [appellant] to liability. Platinum’s misrepresentations caused [appellant] to become burdened by a loan for which he was otherwise not qualified. Platinum also required [appellant] to enter into a deferred down payment transaction, ‘costing money, that would otherwise have been unnecessary’ had [appellant] found a financial institution that did not require an additional $2,000 down payment. Finally, [appellant] has incurred opportunity costs, because Platinum’s misrepresentations diverted [appellant] from finding a financial institution that did not require an additional $2,000 down payment.” The foregoing assertions and any others appellant might make relating to actual damages from loss of money or property, which will necessarily be subject to proof and elaboration, make it proper to remand to the trial court with leave to amend.