Filed 12/31/19 Adame v. Apple Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DENISE ADAME,

Plaintiff and Appellant,

v.

APPLE INC.,

Defendant and Appellant.

D073567

(Super. Ct. No.

37-2010-00096876-CU-BT-CTL)

APPEALS from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.

Siminou Appeals, Benjamin I. Siminou; Hiden, Rott & Oertle, Michael I. Rott and Eric M. Overholt; Thorsnes Bartolotta McGuire, Kevin F. Quinn and Jarrett S. Charo for Plaintiff and Appellant.

Morrison & Forester, David F. McDowell, Purvi G. Patel, Margaret E. Mayo, Arturo J. Gonzalez, Joseph R. Palmore and James R. Sigel for Defendant and Appellant.

 

This appeal involves a challenge to Apple’s iPhone sales tax practices. Apple sold the iPhone at a discounted price to buyers who also entered a cellular service agreement, in what is known as a bundled transaction. California sales tax provisions required Apple to pay sales tax on the unbundled price of the phone. Apple was permitted, but not required, to collect sales tax reimbursement from consumers, and it did so. Apple stated in signs and its online store that sales tax was based on the unbundled price, and its receipts reflected the reimbursement amount (though not the unbundled price).

Denise Adame filed a putative class action alleging Apple violated the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200) and the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) by failing to adequately disclose that sales tax would be imposed on the full, unbundled price. The trial court granted class certification, but later decertified the class based on a lack of standing and commonality and entered judgment for Apple.

Adame appealed from the judgment, and Apple filed a protective appeal addressing certain of the trial court’s interim rulings. We conclude the trial court correctly determined that Adame lacked standing, and the judgment for Apple should be affirmed. Because we resolve the appeal on standing grounds, we do not reach the other issues raised by the parties.

FACTUAL AND PROCEDURAL BACKGROUND

I. Underlying Events

A. Sales Tax Reimbursement Practices of Apple and Walmart
B.
During the relevant time period, Apple sold the iPhone as part of bundled sales, which required the consumer to contract with a telecommunications provider. The price of a bundled iPhone was significantly discounted from the unbundled price.

Apple paid sales tax based on the unbundled price. (Cal. Code Regs., tit. 18,

§ 1585, subd. (b)(3) [for bundled cellular phone transactions, “[t]ax applies to the unbundled sales price . . . . The retailer . . . may collect . . . tax reimbursement from its customer measured by the unbundled sales price.”].) Apple chose to collect sales tax reimbursement from customers in the same amount. (Ibid; see McClain v. Sav-On Drugs (2019) 6 Cal.5th 951, 962 [Civ. Code, § 1656.1 establishes ” ‘rebuttable presumption[ ]’ that retailers and purchasers ‘agreed to the addition of sales tax reimbursement . . .’ if certain notice requirements are met”]; Civ. Code, § 1656.1, subd. (a)(2) [presumption is established when, inter alia, “[s]ales tax reimbursement is shown on the sales check or other proof of sale”].)

Customer receipts for bundled iPhones reflected the bundled sales price, sales tax reimbursement paid, and sales tax rate, but not the unbundled price. Beginning in June 2009, signs in Apple stores provided legal disclaimers that included the statement, “In CA, MA, and RI, sales tax is collected on the unbundled price of the iPhone.” “Smart Sign[s]” used in retail stores in and around 2012 and 2013 required tapping an option to see legal disclaimers, including this language. Apple’s online Apple Store provided the same disclosure.

In October 2012, Apple wrote to the California State Board of Equalization (the Board) asking whether California Code of Regulations section 1585, subdivision (b)(3) “require[d] Apple to disclose information other than the tax rate and amount of sales tax reimbursement charged.” The Board responded in November 2012, stating in pertinent part that Apple’s receipt practices “satisf[y] the requirements under the Sales and Use Tax Law” and that Apple “is not required to disclose additional information, including the unbundled price of the device or the method of calculating the sales tax, on its receipts . . . .”

For a period of at least four years before November 13, 2014, Walmart collected sales tax reimbursement on the bundled, discounted price, but did not advertise the practice. Its point-of-sale systems “could not be programmed to charge sales tax reimbursement on the unbundled price.” On November 13, 2014, in connection with a system upgrade, Walmart began doing so.

C. Adame’s purchases
D.
In 2012, Adame bought a bundled iPhone 4S (16GB) for $199 at an Apple retail store. She paid $50.30 in sales tax reimbursement (i.e., a rate of 7.75 percent, as applied to an unbundled phone cost of $649). Adame exchanged the phone the same day for an iPhone 4S (32GB), which cost $299. She paid the $100 difference, and sales tax reimbursement of $7.75. In 2014, Adame bought a bundled iPhone 6 (128GB) for $399 from the online Apple Store. She paid $67.92 in sales tax reimbursement (i.e. a then-current rate of 8 percent, on an unbundled price of $849). Adame did not see Apple’s sales tax disclaimer, and later stated in a declaration that she would not have understood it to mean the tax applied to anything other than the sale price. We address the declaration further, post.

II. Litigation

This lawsuit was initially filed in 2010. The trial court granted class certification in 2013. Adame filed the operative third amended class action complaint in 2015, asserting claims under the UCL and CLRA, and seeking restitution, among other relief.

Pertinent here, Adame alleged that it was “[o]n the expectation and understanding” of total out-of-pocket costs, including current sales tax rates as applied to the sale prices, that she bought her phones from Apple. She claimed that had Apple disclosed it charged sales-tax reimbursement on the unbundled price, “[she] and members of the class would have conducted a diligent search . . . to determine whether any retailers in California” limited the sales-tax reimbursement to the bundled price. She further claimed she “would not have purchased an iPhone from Apple without first conducting a diligent search . . . for alternative retailers” who did not do so. She alleged she “would have discovered that . . . [Walmart] stores throughout California, as well as other retailers, were offering the very same bundled iPhones” with sales tax reimbursement on the bundled price and “would have elected to purchase her phones from [Walmart] or these other retailers.” Adame reiterated that she lost the chance to “purchas[e] the exact same bundled iPhone at [Walmart] or another retailer.”

In August 2015, Apple demurred, contending in part that Adame’s action was barred by Loeffler v. Target (2014) 58 Cal.4th 1081 (Loeffler). Loeffler held a sales tax reimbursement dispute involving taxability was reserved for the Board. (Id. at pp. 1092, 1123-1124.) Apple also moved to strike the prayer for restitution, because it had remitted the sales tax reimbursement to the Board. In November 2015, the trial court overruled the demurrer, but granted the motion to strike.

Apple’s counsel took Adame’s deposition in December 2016. She asked Adame whether she agreed with the complaint allegation that, had Apple disclosed sales tax reimbursement would apply to the unbundled price, she and other class members “would have conducted a diligent search . . . to determine whether any retailers in California” based it on the bundled price. She stated she agreed. After Adame confirmed she did not see any disclosures, Apple’s counsel asked, “If you had seen a disclosure, would you have done research?” Adame’s counsel stated the question “[m]ay call for speculation,” and Adame responded, “Maybe.”

Apple filed a motion for summary adjudication in March 2017, which the trial court denied. Adame’s declaration in support of her opposition to that motion is pertinent to the standing issues before us.

With respect to her iPhone 4S purchase in 2012, Adame stated that had Apple informed her she “would be charged sales-tax reimbursement on a price that was more than twice that of the sales price,” she “most likely would not have agreed to the sale at the time” and “would have conducted research to see whether [she] could purchase an iPhone from a retailer who limits its sales-tax reimbursement to the sales price . . . .” She further stated that “[a]mong the things [she] would likely have done” were to “research the issue and see if there were any stores” that did not charge sales tax reimbursement on the unbundled price. Walmart was one of the stores she “would most likely have researched,” and she “more likely than not” would have asked its personnel if “it limited sales-tax reimbursement to the sale price . . . .” Had she learned Walmart was not charging sales-tax reimbursement above the sale price, she “would have attempted to purchase [her] iPhone 4S” from there. She stated that if her local Walmart did not have the phone in stock, she “would have been content” to “wait until an iPhone 4S (32GB) could be transferred in from another store” or to “purchase an iPhone 4S (16GB) instead,” noting she originally purchased one and “somewhat reluctantly” exchanged it.

Adame made similar statements regarding her iPhone 6 purchase in 2014. She stated that had Apple informed her about its sales-tax reimbursement practices, she “most likely would not have agreed to the sale at the time”; “would have instead conducted research”; and Walmart “would have been included” in the stores she contacted to “explore whether” she could avoid the additional sales tax reimbursement. Had she learned Walmart limited sales-tax reimbursement to the sale price, she “would have attempted to purchase [her] iPhone 6” from there. If Walmart did not have the phone, she “most likely [would] have opted to purchase the iPhone 6 (64GB) from Walmart instead of the iPhone 6 (128GB) from Apple.”
Finally, she stated that when she “agreed to purchase [her] iPhones from Apple, it was on the assumption that [she] would be charged a sales-tax reimbursement on the purchase price” and “[h]ad she been advised that this assumption was in error . . . , [she] most likely would not have agreed to the sale and would have instead undertaken efforts to research whether—and, if so, where—[she] could obtain a satisfactory bundled iPhone without paying sales-tax reimbursement on something other than the actual purchase price of the iPhone.”

After Adame moved to expand the class to encompass later-issued iPhone models, the trial court certified a class of those who purchased bundled iPhones at an Apple store in California (or used a California billing address at Apple’s online store) between July 2009 and November 13, 2014.

In October 2017, Apple moved to decertify the class, citing Walmart records to contend that Adame and at least some class members could not have purchased the same phones at Walmart, undermining her standing and meaning individual issues would predominate. The trial court agreed, and granted decertification. We discuss the court’s ruling on standing in more detail, post.

The trial court entered judgment for Apple. Adame appealed, and Apple filed a protective appeal. Adame challenges the court’s rulings on standing, commonality, and restitution. Apple contends those rulings were correct, and indicated in both briefing and at oral argument that we can decide this appeal on standing alone. As alternative grounds for affirmance, Apple contends the court erred in overruling its demurrer based on Loeffler, supra, 58 Cal.4th 1081 and denying its motion for summary adjudication. Because we affirm on standing, we need not address the other issues raised by Adame or Apple’s alternative grounds.

DISCUSSION

Adame contends the trial court erred in determining she lacked standing, while Apple maintains the court was correct. The parties agree this ruling was fatal to her lawsuit. We conclude the trial court properly determined she lacked standing.

I. Applicable law

“[U]nder the UCL, standing extends to ‘a person who has suffered injury in fact and has lost money or property as a result of the unfair competition’ ([Bus. & Prof. Code,] § 17204) . . . .” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321-322 (Kwikset).) Injury in fact is ” ‘an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” ‘ ” (Id. at p. 322.) With respect to lost money, one must “demonstrate some form of economic injury.” (Id at p. 323.) Summarizing these requirements, the California Supreme Court has determined that for UCL standing, a plaintiff “must (1) establish a loss or deprivation of money . . . sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice . . . .” (Id. at pp. 322.)

A consumer bringing a CLRA action similarly “must have suffered ‘damage’ as the result of unlawful practices.” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 644; id. at 643 [no CLRA standing if allegedly unlawful practice “has not resulted in tangible increased cost or burden to the consumer”]; Civ. Code, § 1780, subd. (a).) Because Adame concedes these standing requirements are essentially identical, we analyze them concurrently. (See Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 724 (Hansen).)

The California Supreme Court held in Kwikset that “plaintiffs who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property’ within the meaning of [the UCL] and have standing to sue.” (Kwikset, supra, 51 Cal.App.4th at p. 317; id. at pp. 327-328 [plaintiffs alleged they would not have bought locksets deceptively labeled as “Made in America,” but for the label].)

In Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545 (Bower), a plaintiff sued AT&T under the UCL and CLRA after purchasing a bundled cell phone and paying sales tax reimbursement on the undiscounted price. (Id. at p. 1548.) Bower alleged AT&T misrepresented it was required to charge this amount and she ” ‘was denied any opportunity [to] shop around for retailers that [did] not charge consumers this discretionary fee.’ ” (Id. at p. 1551.) The Court of Appeal affirmed the sustaining of AT&T’s demurrer, concluding Bower’s claim “[pled] at the most a conjectural or hypothetical injury, not an injury in fact.” (Id. at pp. 1554-1555.) The court explained she “did not allege that she could have obtained a bundled transaction for a new cellular telephone—the telephone that she selected—at a lower price from another source.” (Id. at p. 1555, citing Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1591 (Peterson).) It further explained “[t]his is not a case in which the defendant’s alleged misrepresentation caused a consumer to purchase a product that he or she would not have bought but for the misrepresentation and the product was worth less than represented by the defendant or was different from what the consumer wanted and expected to buy.” (Bower, at p. 1555, comparing Kwikset, supra, 51 Cal.4th at p. 330.)

Standing is a “question[] of law to which we typically apply a de novo standard of review. [Citations.] However, where the superior court makes underlying factual findings relevant to the question of standing, we defer to the superior court and review the findings for substantial evidence.” (San Luis Rey Racing, Inc. v. California Horse Racing Bd. (2017) 15 Cal.App.5th 67, 73.)

II. Analysis

The trial court determined Adame lacked standing under Bower:

“The court is unable to distinguish the facts of this case from those in Bower. . . . [¶] . . . Both the Bower plaintiff and Plaintiff in this case suffered the same harm—denial of the opportunity to shop around . . . . Therefore, . . . Plaintiff must show that she could have purchased her iPhone in a bundled transaction from another retailer without having to pay sales tax reimbursement on the unbundled price. Based on the evidence from Walmart, Plaintiff could not do so at Walmart. Plaintiff fails to offer any evidence that she could have purchased her iPhone in a bundled transaction from any other retailer without having to pay sales tax reimbursement on the unbundled price. As a result, Plaintiff cannot establish injury in fact/actual injury for purposes of her UCL and CLRA claims.”

The court also found unpersuasive Adame’s argument that she would have been content with the iPhone 4S (16GB) from Walmart and did not have to show she could have bought the same phone, explaining it contradicted her complaint and was inconsistent with Bower.

We agree that Adame has not established standing. She alleged Apple inadequately disclosed it was collecting sales tax reimbursement based on unbundled prices and thus deprived her of the chance to buy the same phones at Walmart without paying such amounts. The evidence at class certification reflected she could not have bought her phones at Walmart. Adame maintains she has standing because she “testified that she would have bought at least one of her iPhones from Walmart . . . .” The record does not support this assertion. Adame’s declaration addresses what she most likely would have done had she been aware of Apple’s sales tax reimbursement practices, including conducting research to find other retailers, waiting for the phones, or accepting different phones (stating only once, and as part of this hypothetical discussion, that she would have been content with the iPhone 4S (16G)). The deposition testimony in the record here is even more equivocal. After initially agreeing that she and other class members would have “conducted a diligent search” for other retailers, had Apple disclosed its practices, Adame then indicated she “maybe” would have done research.

This testimony amounts to an assertion that she would have shopped around, had she known about Apple’s sales tax reimbursement practices, and Apple’s failure to disclose those practices meant she could not do so. This purported injury is just as conjectural as in Bower, and the trial court properly concluded that she lacked standing.

Adame’s arguments are not persuasive. She begins by arguing the trial court overlooked her “allegation that she would not have purchased her iPhones from Apple but for [its] deceptive pricing,” suggesting she can rely on Kwikset. But her complaint stated her purchases were based on sales tax expectations, not that she would have refrained from buying, and her declaration essentially asserted a lost chance to shop around. These allegations are distinguishable from those in Kwikset. (See Kwikset, supra, 51 Cal.4th at pp. 316, 330 [plaintiffs claimed they would not have bought locksets “but for” the “Made in the USA” label]; id. at p. 330 [allegation that one “would not have bought the product but for the misrepresentation” is “sufficient to allege economic injury”].)

Adame then criticizes the trial court’s reliance on Bower, contending it was wrongly decided in various respects; distinguishable; and, even if it were applicable, satisfied here.

First, Adame contends Bower relies on an outdated “benefit-of-the-bargain theory,” citing Kwikset. She relies on Bower’s comment that this was “not a case” in which the misrepresentation caused a consumer to buy something “and the product was worth less than represented . . . . or was different from what the consumer wanted,” as well as its citation to Peterson, supra, 164 Cal.App.4th 1583. (Bower, supra, 196 Cal.App.4th at p. 1555.) Not so. Kwikset held the plaintiffs established injury by alleging they would not have bought the product but for the mislabeling; in responding to a point about benefit-of-the-bargain theory, it stated that “[w]hether or not a party who actually received the benefit of his or her bargain may lack standing, in this case . . . plaintiffs did not.” (Kwikset, supra, 51 Cal.App.4th at p. 332.) Bower properly focused on the failure to establish injury. Its “not a case” comment was in comparison to Kwikset, where the plaintiffs would not have made the purchases (and also did not get what they wanted). (Bower, at p. 1555.) As for Peterson, Bower was referencing its observation that the plaintiffs did not allege they could have spent less, not its benefit of the bargain holding. (Ibid., citing Peterson, supra, 164 Cal.App.4th at p. 1591 [plaintiffs did not allege they “could have bought the same insurance for a lower price”]; compare Peterson, ibid. [no economic injury; plaintiffs received the benefit of the bargain].)

Second, Adame objects to Bower’s focus on a plaintiff being able to save money elsewhere. She contends this premise is inconsistent with Clayworth v. Pfizer (2010) 49 Cal.4th 758, which held that requiring a compensable loss for standing “conflates [that issue] with the issue of the remedies.” (Id. at pp. 789; id. at pp. 788-789 [pharmacies had standing to sue pharmaceutical companies for illegal overcharges due to price-fixing, but might not get restitution if they passed on charges].) She also contends it would improperly limit injunctive relief to cases with compensable loss. We disagree. Adame appears to assume that the ability to save money relates to compensable loss. But Bower illustrates how it is relevant to economic loss, which is required for standing. And standing is necessary for relief, injunctive or otherwise.

Adame also contends that “[w]hether they could have found a better deal elsewhere, consumers still have ‘a legally protected interest in knowing from the outset,

. . . the true prices of the items they chose to buy,’ ” citing Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 918-919 (Veera).) To the extent she is seeking to base standing on frustrated expectations alone, she does not succeed.

As an initial matter, Adame does not establish this interest applies here. In Veera, plaintiffs alleged they were “lured to shop” at Banana Republic by 40 percent off signs and “would not have entered the store but for the advertised discount.” (Veera, supra, 6 Cal.App.5th at p. 911.) Veera relied on Medrazo v. Honda of North Hollywood (2012) 205 Cal.App.4th 1 (Medrazo)), where plaintiffs bought a motorcycle that lacked a tag with dealer-added charges and suffered injury under Vehicle Code disclosure requirements. (Veera, at p. 917, citing Medrazo, at p. 13.) Even if Veera determined plaintiffs have an analogous interest in knowing sale prices, it does not necessarily follow that consumers have an interest in sales tax reimbursement disclosures (at least beyond those sufficient for the Civil Code section 1656.1 presumption). More importantly, both the Veera and Medrazo plaintiffs, unlike Adame, could establish economic injury based on buying items they would not have purchased or been able to purchase. (See Veera, at p. 918 [economic harm was “difference between the advertised price . . . , and the full price”]; Medrazo, at p. 13 [buyer made payments and owed money “on a motorcycle that [defendant] allegedly was not legally allowed to sell,” at least at that price].)

Third, Adame offers policy arguments. She argues that focusing on whether consumers could save money permits monopolies to “engage in deceptive pricing with impunity.” She also argues “the UCL’s focus [is] on the defendant’s conduct,” and requiring plaintiffs to show they could have saved money would be a distraction, shift attention to competitors, and burden those competitors. These concerns are not well-founded. Standing requires injury, regardless of the defendant’s market share, the desire for deterrence, or the burden on witnesses. (See, e.g., Kwikset, supra, 51 Cal.4th at pp. 321-323; id. at p. 321 [injury and lost money requirements were intended to limit UCL standing]; see Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 339 (Day) [absent “measurable loss,” the UCL does not allow restitution “merely to achieve” deterrent effect].) Further, showing one could save money is just one way of demonstrating economic injury; other allegations do not depend on competitor evidence, but Adame did not make them. (See Kwikset, at p. 330 [plaintiffs would not have purchased lockset “but for” mislabeling]; id. at p. 323 [“innumerable ways in which economic injury . . . may be shown,” include surrendering more in a transaction that one would have, having property interest diminished, and being required to enter an unnecessary transaction].)

Fourth, Adame argues Bower is distinguishable, as the plaintiff knew how much she was going to pay. She states this “distinction is critical” because courts “have held that consumers who are charged more than they expected to pay have standing under the UCL,” citing Veera, Medrazo, and Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1385, disapproved on other grounds in Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 986, fn. 15. Bower is not entirely clear as to when the plaintiff was told by AT&T that it was required to charge tax on the undiscounted price. (Bower, supra, 196 Cal.App.4th at pp. 1550-1551; see also id. at p. 1548 [noting her reliance on website information and “responses to her post-purchase communications” in original complaint].) Regardless, as discussed ante, Adame does not establish that expectation alone is sufficient for standing, and Veera and Medrazo both involved facts that could support economic injury. (Veera, supra, 6 Cal.App.5th at p. 911, 918; Medrazo, supra, 205 Cal.App.4th at p. 13.) Hale similarly involved a plaintiff who could have declined the product at issue. (Hale, at pp. 1385-1386 [patient claimed hospital agreement reflected it would charge regular rates, but it billed excessive amounts; explaining one could rely on the agreement in deciding whether to have treatment].)

Finally, Adame maintains she did satisfy Bower because of her testimony that she would have been content with the iPhone 4S (16GB) if it meant paying less, citing her declaration, and the trial court erroneously disregarded the testimony by finding it inconsistent with the complaint. She contends “differences in storage capacity” are consistent with the phone being the “exact same” and she “repeatedly discussed” the iPhone 4S (16GB) in the complaint. These arguments do not aid her. Regardless of whether the declaration was consistent with the complaint, it does not support standing for the reasons discussed ante.

DISPOSITION

The judgment is affirmed. Apple will recover its costs on appeal.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.