Filed 1/30/20 Alcaraz v. Salamah 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GIANCARLO ALCARAZ,

Plaintiff and Appellant,

v.

AHMAD SALAMAH,

Defendant and Appellant.

D075534

(Super. Ct. No. CIVDS1406006)

APPEALS from orders of the Superior Court of San Bernardino County, Donna G. Garza, Judge. Affirmed.

Rosner, Barry & Babbitt, Christopher P. Barry, Michelle A. Cook and Arlyn L. Escalante for Plaintiff and Appellant.

Law Office of Adam Dolce and Adam Dolce for Defendant and Appellant.

Giancarlo Alcaraz purchased a used car from Ahmad Salamah doing business as A&A Auto Sales (A&A). Two years later, Alcaraz discovered that the car had been in an accident and had sustained frame damage, which he concluded made the car unsafe to drive. Alcaraz brought suit against Salamah and A&A for failing to disclose the damage. After trial, the jury found in Alcaraz’s favor on his claim under the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) and his claims for intentional misrepresentation, concealment, and negligent misrepresentation. After the jury rendered its decision, A&A moved unsuccessfully for judgment notwithstanding the verdict (JNOV), followed by a motion for new trial, which the court granted on the grounds the jury’s verdict was legally inconsistent. Specifically, the court determined that the jury’s special verdict finding A&A liable for both intentional and negligent misrepresentation could not be reconciled, and that this inconsistency infected other aspects of the jury’s decision, necessitating a new trial.

On appeal, both parties seek to avoid another trial. A&A challenges the court’s denial of its motion for JNOV, asserting the court should have dismissed all of Alcaraz’s claims because they are preempted by federal law, or because insufficient evidence supported the jury’s finding that Alcaraz relied on A&A’s deceit. A&A argues in the alternative that the court should have at least dismissed Alcaraz’s claim under the CLRA because he failed to show that his injuries were caused by A&A. In his cross-appeal, Alcaraz asserts the court erred by granting the new trial motion and that the jury’s verdict should be reinstated by this court. Alcaraz argues the special verdict finding A&A liable for both intentional and negligent misrepresentation is not fatally inconsistent. He further asserts that even if the verdict is inconsistent, a new trial is not warranted because the jury’s verdict finding liability on his claims for concealment and violation of the CLRA should stand.

For the reasons set forth below, we reject both parties’ claims. The trial court’s orders denying JNOV and granting a new trial are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2011, A&A purchased a used 2006 Nissan Murano at auction for $12,320. The auction slip lists the purchaser as A&A and includes the name of one of Salamah’s employees, Ayman Dahlan, in the purchaser section. The slip states the car has “Frame/Unibody Damage,” a bad steering rack, the ABS (antilock braking system) light is on, and that the airbag module requires replacement. Both Salamah and Dahlan testified at trial that they were aware the car had frame damage when it was purchased by A&A.

Salamah testified that it was his practice to have a car A&A purchased at auction inspected by a third-party mechanic, but he could not recall whether he had any repairs done on the Murano after it was purchased. Dahlan testified that the car was taken to the Nissan dealership where the airbag module was replaced. After the car was purchased, A&A entered it into its system and listed the car for sale on its website.

Alcaraz saw the vehicle advertised online and called A&A to see if it was available. On a weekend in early May 2011, Alcaraz went to A&A to look at the car. He was greeted by a sales person, Iyad Elwaneer, who showed him the car, which was on a lift, and said the car was not available to test drive because it was undergoing routine maintenance. Alcaraz left and returned about a week later after receiving a call from A&A letting him know the car was available to test drive. When Alcaraz returned to A&A, the car was at a nearby maintenance shop. Alcaraz drove with Elwaneer to the shop and then Alcaraz drove the Murano back to A&A. Alcaraz testified that when he drove the car, the steering was “wobbly, shaky, and it just didn’t feel right.” Alcaraz told Elwaneer he was concerned about the steering and wanted it fixed before he purchased the Murano. Elwaneer agreed, with Salamah’s approval, that A&A would fix the steering issue. Alcaraz also testified that after the test drive, he specifically asked Elwaneer if the car had been in any accidents, and that Elwaneer responded no.

Alcaraz and Elwaneer then negotiated a price, with Elwaneer leaving the office where they worked throughout the process to get approval from Salamah. They agreed to a total price of $17,000. Alcaraz received $1,500 for his trade-in, paid $500 by check, and financed the remaining $15,000 with a loan from Navy Federal Credit Union. Alcaraz received and signed various documents to finalize the transaction, including a “Buyers Guide” that set forth the terms of A&A’s warranty. At trial, A&A also introduced a form titled “Statement of Facts” that it asserted was provided to Alcaraz. The form contains an illegible signature and Alcaraz denied ever seeing or signing the form. The document is largely blank, but lists the vehicle identification number for the Murano and is stamped “I/We also understand that this vehicle has frame damage and might have also been a prior rental car.”

Salamah testified at trial that Alcaraz also requested a CARFAX report at the time of the sale, which he stated was provided to Alcaraz and disclosed the car had sustained frame damage. A&A, however, did not introduce the report and Alcaraz introduced a CARFAX report showing that CARFAX had not reported any accident or frame damage to the car until after the sale. Under questioning by Alcaraz’s counsel, Salamah stated he recalled Alcaraz asking him about the condition of the vehicle, specifically whether the car was salvaged. Salamah testified he responded the car was not salvaged since there was no announcement at the auction that the car had a salvaged title. Salamah also testified that he believed Alcaraz was aware the car had frame damage at the time of his purchase.

In April or May of 2013, Alcaraz received a letter from an attorney, Kasra Sadr, informing him that the Murano had frame damage. Alcaraz retained Sadr to represent him and on May 28, 2013, Sadr sent a letter to A&A outlining Alcaraz’s complaint and demanding A&A resolve his claims under the CLRA. In May 2014, Alcaraz’s new counsel filed the complaint forming the basis for this case. Alcaraz’s complaint alleged violations of the CLRA and the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.) based on A&A’s violation of the CLRA. Alcaraz also asserted claims for fraudulent misrepresentation and negligent misrepresentation.

At trial, which began on January 12, 2017, in addition to the testimony already described, Alcaraz testified that if he had been aware that the car had frame damage at the outset, he would not have purchased the Murano. He also testified that since learning of the damage, he had tried not to use the car to transport his children. After the conclusion of Alcaraz’s case-in-chief, A&A unsuccessfully moved for nonsuit, asserting Alcaraz had not shown it had concealed any information about the car. After the conclusion of its case-in-chief, A&A moved for a directed verdict, which the court also denied.

After closing arguments, the jury returned a special verdict in favor of Alcaraz on the four causes of action before it: violation of the CLRA, intentional misrepresentation (representation), intentional misrepresentation (concealment), and negligent misrepresentation. The jury awarded restitution of $17,000 and damages of $23,401 on Alcaraz’s claim under the CLRA, finding A&A represented the car “had characteristics which it did not have” and “was of a particular standard, quality or grade, when it was of another.” The jury awarded the same amount of damages on Alcaraz’s deceit claims of concealment, and intentional and negligent misrepresentation. Finally, the jury found A&A had violated the CLRA and committed concealment and intentional misrepresentation with “malice, oppression, or fraud,” supporting an award of punitive damages.

Following the verdict, the parties stipulated to a punitive damage award of $23,401. The parties also provided briefing on Alcaraz’s UCL claim (tried to the court, not the jury) and the court issued a statement of decision finding A&A violated the UCL and awarding Alcaraz $17,000 in monetary restitution. Thereafter, the court entered judgment in favor of Alcaraz, awarding liability damages of $23,401 and punitive damages in the same amount. Several postjudgment motions followed. A&A first sought JNOV, asserting that Alcaraz’s claims were preempted by the Federal Trade Commission’s (FTC’s) Used Car Rule, and that A&A’s compliance with that rule established there was not substantial evidence to support Alcaraz’s claims. After briefing and oral argument, the trial court denied the motion.

After unsuccessfully moving for JNOV, A&A filed a motion for new trial, asserting various grounds for overturning the jury’s verdict, including that the verdict was ambiguous and against the law. Alcaraz opposed the motion. After briefing and a hearing, the trial court granted the motion. The court found that “the verdict [was] inconsistent in factual findings because defendant could not have known the representation was false or made recklessly without regard for its truth (section 2, paragraph 9 [of the special verdict form]), and at the same time have honestly believed the representation was true when it made it (section 4, paragraphs 22-23 [of the special verdict form]).” The court elaborated, “[g]iven the same evidence was presented to support all the verdicts, it cannot be that defendant had reasonable grounds for believing the representation was true and honestly believed it to be true and at the same time be the case that defendant knew the representation was false or made it recklessly without regard for its truth.”

The court concluded this inconsistency required a new trial on the negligent and intentional misrepresentation claims. Further, the court found the inconsistency also infected the CRLA and concealment claims, which relied on the same facts, and similarly the jury’s finding that A&A acted with malice, oppression, or fraud. The court ordered a new trial on all claims. A&A timely appealed the trial court’s denial of its motion for JNOV and Alcaraz timely cross-appealed the court’s order granting A&A’s motion for a new trial.

DISCUSSION
I

A&A challenges the trial court’s denial of its motion for JNOV on three grounds. It asserts: (1) Alcaraz’s claims are preempted by the FTC’s Used Car Rule; (2) in light of the Used Car Rule, there was insufficient evidence to support Alcaraz’s claims; and (3) the jury’s verdict did not support Alcaraz’s claim under the CLRA because the jury did not make any finding on causation. These claims are not well-taken.

A

A&A first asserts its provision of the Buyers Guide to Alcaraz in conformance with the FTC regulations immunized it from liability because those regulations preempt California’s consumer protection laws.

In determining whether a federal statute or regulation preempts a state law, we begin with the general presumption that under the supremacy clause of the United States Constitution a federal statute or regulation does not preempt a state’s historic police powers unless preemption is a clear and manifest purpose of the United States Congress. (U.S. Const., art. VI, cl. 2; Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516; Gibson v. World Savings & Loan Assn. (2002) 103 Cal.App.4th 1291, 1300 (Gibson).) “The states’ historic police powers include the regulation of consumer protection. . . . [Citations.] Therefore, there is a ‘strong presumption’ ” that the Buyers Guide regulations do “not preempt the claims brought in this action.” (Gibson, supra, 103 Cal.App.4th at p. 1300; Paduano v. American Honda Motor Co., Inc. (2009) 169 Cal.App.4th 1453, 1474 [“The presumption against preemption ‘applies with particular force’ in a case such as this one that involves consumer protection laws.”].) “To overcome that presumption against preemption, [the party claiming preemption] bears the burden of establishing that the claims are preempted.” (Gibson, at p. 1300.)

Generally, there are three forms of preemption: “(1) [W]here Congress expressly specifies that its enactment preempts state law (express preemption); (2) where the scheme of federal regulation is so pervasive that there is a reasonable inference Congress intended to dominate the field and state laws on the same subject are precluded (field preemption); and (3) where federal law actually conflicts with state law and it is impossible for a private party to comply with both requirements (conflict preemption).” (Monarch v. Southern Pacific Transportation Co. (1999) 70 Cal.App.4th 1197, 1204-1205.)

When, as here, the issues regarding federal preemption involve undisputed facts, it is a question of law whether a federal statute or regulation preempts a state law claim. (Washington Mutual Bank v. Superior Court (2002) 95 Cal.App.4th 606, 612; American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 755.) Because the interpretation of statutes and administrative regulations and the ascertainment of legislative or regulatory agency intent are purely questions of law, “we determine the preemptive effect of either statutes or regulations independently [citation], without deferring to the trial court’s conclusion . . . .” (Gibson, supra, 103 Cal.App.4th at p. 1297.)

Regulations promulgated by the FTC require car dealers to display a “Buyers Guide” on the window of cars offered for sale. (16 C.F.R. § 455.2(a) (2017).) The regulations require the Buyers Guide to indicate whether the car is being offered with no warranty, which means the consumer “will pay all costs for any repairs” and that “the dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.” (Id., § 455.2(b)(1) (2017).) If the dealer offers a warranty, the form provides for a designation as “full” or “limited,” and also provides for a specification of the proportion of labor and parts to be paid by the dealer, the systems covered, and the duration of any warranty. (Id., § 455.2(b)(2) (2017).) Other disclosures required in the Buyers Guide include notice of the availability of service contracts, and identifying information about the car, the dealer, and how to file a complaint. (Id., § 455.2(b)(3), (c), (d), (e) (2017).) The regulations also require the dealer to provide the consumer with a copy of the Buyers Guide and to incorporate its terms into the sales contract. (16 C.F.R. § 455.3 (2017).)

A&A does not argue that these regulations expressly preempt state law or that they occupy the field of consumer protection law. Instead, A&A asserts that the regulations are in conflict with this state’s consumer protection laws and, therefore, impliedly preempt them. A&A argues that if a car dealer violates the federal rules, it may be liable for both that violation and a violation of state law. However, A&A continues, if a dealer complies with the provisions of the Buyers Guide regulations, it cannot be held liable under state laws. A&A also argues that because the FTC declined to adopt a provision in the Buyers Guide regulation mandating that used car dealers disclose all known defects, state regulation of such conduct is preempted by the rule. This argument is without merit. The legislative history does not show that the FTC intended to preclude state liability for concealing known defects, only that the federal scheme would not mandate a required disclosure. (See Hinds v. Paul’s Auto Werkstatt, Inc. (1991) 107 Or.App. 63, 66 (Hinds) [enforcement of state law providing “additional, higher” disclosure requirement, “does not conflict with the federal rule, which has no requirement of disclosure.”].)

Contrary to A&A’s arguments, there is no conflict between the FTC’s Buyers Guide requirement (compliance with which provides a safe harbor for used car dealers from liability to the FTC) and the state’s more protective consumer protection and tort laws that prohibit concealment and misrepresentation. (See, e.g., Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 663 [“in the absence of a conflict or a clear mandate, a court should not presume that Congress intended to oust state law”], citing Florida Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 146-147.) California is free to impose additional, higher disclosure requirements on used car dealers within this state.

A similar case from Oregon, Hinds, supra, 107 Or.App. 63, is instructive. There, the plaintiff brought a claim under Oregon’s Unlawful Trade Practices Act (UTPA) for a used car dealer’s failure to disclose the car purchased by the plaintiff had been in an accident. The defendant dealer obtained summary judgment on the grounds that the plaintiff’s claim under the UTPA was preempted by the dealer’s compliance with the same regulations advanced here. (Hinds, at p. 65.) The Court of Appeals of Oregon reversed the judgment, holding that enforcement of the UPTA “does not conflict with the federal rule, which has no requirement of disclosure. The Oregon provision adds an additional, higher requirement, and Oregon was free to make that addition.” (Hinds, at p. 66.)

A&A attempts to distinguish Hinds by arguing its logic does not apply since the UTPA, unlike the laws at issue here, “actively mandated that a dealer disclose known material defects to consumers prior to any sales.” This distinction, however, is not determinative. The laws under which Alcaraz brings his claims (the CLRA and California’s tort laws) prevent a seller from making false statements or concealing material information about a product. Like Oregon’s UTPA, which creates liability for a failure to affirmatively disclose material information, these laws are not in conflict with the Buyers Guide regulations. Rather, they represent additional protections afforded consumers in California. In sum, the CLRA and tort laws at issue here are not in conflict with the FTC’s Buyers Guide regulations and, thus, are not preempted.

B

A&A next contends that even if Alcaraz’s claims are not preempted by the federal regulations, its compliance with those regulations prevented Alcaraz from actually or reasonably relying on any misrepresentation.

The court may grant JNOV ” ‘only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.’ ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral), quoting Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) The trial court “cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for [JNOV] should be denied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [” ‘Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff’s reliance is reasonable is a question of fact’ ” for the jury.].) ” ‘As in the trial court, the standard of review [on appeal] is whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion’ [Citation.]” (Cabral, at p. 770.)

Because “reliance is the causal mechanism of fraud” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 326), a plaintiff “proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the element of reliance in ordinary fraud actions.” (Id. at p. 306.) Likewise, claims under the CLRA that sound in fraud, also require the plaintiff to establish reliance on the defendant’s deceitful conduct. (Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 980.) Consequently, for purposes of the CLRA and the UCL, Alcaraz was required to “show that the misrepresentation was an immediate cause of the injury-producing conduct,” i.e., his purchase of the Murano. (In re Tobacco II Cases, at p. 326.) However, a “plaintiff is not required to allege that [the challenged] misrepresentations were the sole or even the decisive cause of the injury-producing conduct.” (Id. at p. 328.)

” ‘ “The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” ‘ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173 (Small), italics added.) Justifiable reliance exists where circumstances are ” ‘such to make it reasonable for [the] plaintiff to accept [the] defendant’s statements without an independent inquiry or investigation.’ ” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.) “The reasonableness of the plaintiff’s reliance is judged by reference to the plaintiff’s knowledge and experience.” (Ibid.)

“The tort of negligent misrepresentation does not require scienter or intent to defraud. [Citation.] It encompasses ‘[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true’ [citation], and ‘[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true’ . . . .” (Small, at pp. 173-174.) The claim requires proof of actual reliance on the misrepresentation. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)

Accordingly, Alcaraz was required to prove he would not have purchased the Murano in the absence of A&A’s misrepresentation and concealment of the fact that the car had been in an accident and suffered frame damage. Substantial evidence supported the jury’s conclusion that Alcaraz proved this fact. Alcaraz testified that he would not have purchased the car had he known of the latent damage caused by the prior accident. As the trial court found, regardless of conflicting testimony, this evidence sufficiently supported the jury’s verdict. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [” ‘The testimony of a witness, even the party himself, may be sufficient.’ “].)

Substantial evidence also supported the jury’s finding that Alcaraz’s reliance was reasonable. In essence, A&A argues that its compliance with the Buyers Guide regulations made Alcaraz’s reliance on Elwaneer’s statement that the car had not been in a prior accident unreasonable. However, the fact that the Buyers Guide was provided to Alcaraz is simply one factor in the jury’s determination of whether Alcaraz’s reliance was reasonable. The Buyers Guide did not contain any information that contradicted the misrepresentation that the car had not been in a prior accident or that the car had latent frame damage. Further, even if it had contained this information, it would not necessarily upset the jury’s determination that Alcaraz reasonably relied on the concealed information or false statements by A&A.

We do not agree with A&A that its provision of the Buyers Guide to Alcaraz created the rare case where “undisputed facts leave no room for a reasonable difference of opinion” and that reliance should be determined as a matter of law in its favor. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1239.) Nor does the fact that the Buyers Guide was given to Alcaraz support A&A’s argument that Alcaraz’s conduct “in the light of his own intelligence and information was manifestly unreasonable,” so as to require reversal of the jury’s verdict. (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1194.) Sufficient evidence supported the jury’s determinations that Alcaraz relied on A&A’s deceit and that his reliance was reasonable.

C

A&A’s final contention on appeal is that the court erred by denying its motion for partial JNOV of Alcaraz’s CLRA claim. A&A argues that the special verdict form on this claim was deficient because it did not ask the jury to determine causation. This argument is without merit. A&A correctly asserts that a violation of the CLRA sounding in fraud requires the plaintiff to prove and the jury to find that the violation of the act caused the plaintiff’s damage. (Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 754 [“Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.”].) Here the requirement was met. The special verdict form asked the jury “What are the actual damages to Mr. Alcaraz caused by A&A Auto Sales’ violations of the Consumers Legal Remedies Act?” (Italics added.) The jury answered “$23,401,” confirming its finding that the damages were caused by A&A’s violation of the CLRA.

II

In his cross-appeal, Alcaraz challenges the court’s order granting A&A’s motion for a new trial. Alcaraz argues that the jury’s special verdict finding A&A liable for both intentional and negligent misrepresentation is not against the law and those findings can be reconciled. Further, Alcaraz contends that even if those two claims were properly overturned, the trial court erred by rejecting the jury’s verdict on his concealment and CLRA claims and its finding in support of punitive damages.

A

In its order granting the new trial motion, the trial court found that “the verdict [was] inconsistent in factual findings because defendant could not have known the representation was false or made recklessly without regard for its truth (section 2, paragraph 9 [of the special verdict form]), and at the same time have honestly believed the representation was true when made. . . (Section 4, paragraphs 22-23 [of the special verdict form]).” The court elaborated, “given the same evidence was presented to support all the verdicts, it cannot be that defendant had reasonable grounds for believing the representation was true and honestly believed it to be true and at the same time be the case that defendant knew the representation was false or made it recklessly without regard for its truth.”

The trial court concluded this inconsistency also required reversal of the jury’s verdict on Alcaraz’s CLRA claim. The court noted that the CLRA claim required a “finding of a statement known to be untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” The trial court continued, the “same evidence was used to support all the claims related to the representation that was made” and therefore, “the findings with respect to negligent misrepresentation are inconsistent with the CLRA finding of liability.”

The trial court concluded reversal of the concealment claim was necessary for the same reason. The court noted, Alcaraz “relied on the same evidence in support of all claims. If the representation at issue was that the vehicle had not been in an accident and if the person making such representation honestly believed that to be true and he had no reasonable basis to believe otherwise, the disclosure could not be deceptive by the failure to disclose other facts. Given how inextricably related plaintiff’s claims are, and that the gravamen of this cause of action is the same misrepresentation that serves as the basis for the failure to disclose other facts, the court can[not] resolve the inconsistency in the findings . . . .” Finally, the court concluded the jury’s inconsistent finding on A&A’s scienter with respect to the deceit claims also infected the jury’s conclusion that A&A acted with malice, oppression, or fraud to support the stipulated punitive damage award. Accordingly, the court found a new trial on the punitive damages findings was also warranted.

B

In ruling on a new trial motion, the court must decide whether one or more of the grounds for new trial set forth in Code of Civil Procedure section 657 has been established. If it has, the court next determines whether that ground “materially affect[s] the substantial rights” of the moving party. (§ 657.) The court has the power to set aside the judgment “in whole or in part” and to grant a new trial on “all or part of the issues.” (§§ 657, 662.) However, where the issues are substantially interwoven and a limited retrial would be prejudicial to either party, a partial new trial order is an abuse of discretion. (Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608-609.) In such cases, any new trial granted must be on all the issues, not just some of them. (Ibid.)

“[W]e review an order denying a new trial motion under the abuse of discretion standard. However, in doing so, we must review the entire record to determine independently whether there were grounds for granting the motion.” (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 733.) Further, ” ‘ “any determination underlying [the] order is scrutinized under the test appropriate to such determination.” ‘ ” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678 (Horton).)

C

A primary basis for A&A’s new trial motion was the inconsistency in the verdicts on the intentional and negligent misrepresentation claims. On appeal, Alcaraz argues there was no inconsistency. In the trial court, however, Alcaraz did not oppose the motion on this ground. As a result, as A&A points out, this court may treat any purported error as invited and reject the argument on this basis. (CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598, 618 [“As a general rule, issues not properly raised at trial will not be considered on appeal.”].) Because the question is a purely legal one, we exercise our discretion to reach the issue.

As noted, a new trial motion should be granted where the proponent establishes one or more of the grounds enumerated in section 657 and that ground “materially affect[s] the substantial rights” of the moving party. (§ 657.) One specified basis is when a “verdict or other decision is against the law.” (Id., subd. (6).) A verdict or decision is “against law” where findings are made that are “so inconsistent, ambiguous and uncertain that they are incapable of being reconciled and it is impossible to tell how a material issue is determined.” (Renfer v. Skaggs (1950) 96 Cal.App.2d 380, 385; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.)

” ‘[A] special verdict’s correctness must be analyzed as a matter of law.’ [Citations.] Other principles governing review of a claim of inconsistency in a verdict depend on the type of verdict rendered. When a special verdict is involved as here, a reviewing court does not imply findings in favor of the prevailing party. [Citations.] This rule stems from the nature of a special verdict and its ‘ “recognized pitfalls,” ‘ namely, that it requires the jury to resolve all of the controverted issues in the case, unlike a general verdict which merely implies findings on all issues in one party’s favor. [Citations.] Under these circumstances, ‘ ” ‘[t]he possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings . . . .’ ” ‘ ” (Horton, supra, 126 Cal.App.4th at p. 678.)

D

Alcaraz argues the trial court erred because the jury’s verdicts on the negligent and intentional misrepresentation claims can be aligned. He contends that because intentional misrepresentation requires a higher level of scienter (i.e., that the defendant either knew the representation was false or had no basis to believe its truth and made the representation recklessly) than negligent misrepresentation (which requires only a showing defendant had no reasonable grounds for believing the representation to be true), a finding of the former necessarily satisfies the latter.

California law generally recognizes four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment, and failure to perform a promise. (Civ. Code, §§ 1572, 1710; Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 408.) As stated in part I, ante, the “elements of fraud that will give rise to a tort action for deceit are: ‘ “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” ‘ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) The element of scienter may be satisfied ” ‘[i]f the defendant has no belief in the truth of the statement, and makes it recklessly, without knowing whether it is true or false . . . .’ ” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 415 (Bily), quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 705 at pp. 806-807; Civ. Code, § 1572, subd. 1 [fraud includes “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true”]; Civ. Code, § 1710, subd. 1.)

“Negligent misrepresentation is a separate and distinct tort,” another “species of the tort of deceit.” (Bily, supra, 3 Cal.4th at p. 407.) ” ‘Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’ ” (Ibid.) The “representation need not be made with knowledge of actual falsity, but need only be an ‘assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true’ [citations] and made ‘with intent to induce [the recipient] to alter his position to his injury or his risk.’ ” (Gagne v. Bertran (1954) 43 Cal.2d 481, 487-488, fn. omitted.) Thus, neither scienter nor the intent to deceive ” ‘is a requisite of negligent misrepresentation.’ ” (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1476; see Gagne, at pp. 487-488 & fns. 4-5; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 722, p. 821.)

Contrary to Alcaraz’s assertion, satisfying the element of scienter for a claim of intentional misrepresentation does not mean that negligent misrepresentation has also occurred. Rather, only one or the other can be true. Alcaraz concedes both claims are based on the same conduct: “[Elwaneer]’s representation that the Vehicle had not been in any accidents.” Either A&A made this representation (1) knowing it was false or having no basis to believe it was true, or (2) A&A believed it was true and had no reasonable grounds for that belief. Indeed, Alcaraz’s counsel recognized this, arguing in his closing statement that the negligent misrepresentation claim was an alternate theory of liability to the concealment and intentional misrepresentation claims. Counsel stated, “[t]he final section of the verdict form is for negligent misrepresentation. And this is sort of an alternate theory to an intentional misrepresentation.” (Italics added.)

The trial court’s conclusion that the verdicts on the negligent and intentional misrepresentation claims were inconsistent is correct and a new trial under section 657 is the proper remedy for this error. (See Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th at p. 1344 [“Inconsistent verdicts are ‘ “against the law,” ‘ and the proper remedy is a new trial.”].)

E

Alcaraz asserts that even if the jury’s verdict was fatally inconsistent with respect to the negligent and intentional misrepresentation claims, there is no prejudice to A&A requiring a new trial because the CLRA and concealment claims were not against the law, and no other basis under section 657 supports a new trial of these claims.

With respect to the CLRA claim, Alcaraz argues a new trial is not warranted because this claim did not require him to prove the element of scienter. A&A refutes this assertion by arguing that Alcaraz relied on Vehicle Code section 11713, subdivision (a) to support his CLRA claim, and that the statute “prohibits a dealer from making ‘a statement that is untrue or misleading and that is known, or that by the exercise of reasonable care should be known, to be untrue or misleading.’ ” Alcaraz, in contrast, argues the CLRA claim is not implicated by the inconsistency in the verdict because the CLRA is not a fraud statute and therefore “does not require proof or knowledge of a representation’s falsity” and that “[e]ven when a CLRA claim ‘sound[s] in fraud,’ the only additional showing required is of actual reliance.”

In his complaint, Alcaraz alleged that A&A violated the CLRA in three ways: “(a) A&A Auto represented the Vehicle had characteristics or benefits which it did not have [corresponding to Civ. Code, § 1770, subd. (a)(5)]; (b) A&A Auto represented the Vehicle was a particular standard, quality, or grade when it was of another [§ 1770, subd. (a)(7)]; and (c) A&A Auto represented the transaction involved rights, remedies, or obligations which it did not have, or which are prohibited by law [§ 1770, subd. (a)(14)].” The special verdict form for the CLRA cause of action included two of these three claims. The form asked: “Did A&A Auto Sales represent the Nissan Murano had characteristic which it did not have?” and “Did A&A Auto Sales represent the Nissan Murano was of a particular standard, quality or grade, when it was of another?” Alcaraz also points to one of the 12 special jury instructions on the CLRA claim, titled “Burden of Proof Under the Consumer Legal Remedies Act.” The instruction stated that the “CLRA applies equally to affirmative misrepresentations of material facts and to concealment of material facts” and that “Plaintiff is not required to show A&A Auto Sales intended to mislead or misrepresent facts to Plaintiff.”

“The CLRA proscribes particular ‘unfair methods of competition and unfair or deceptive acts or practices’ in transactions for the sale or lease of goods or services to consumers. (Civ. Code, § 1770, subd. (a); see Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 833.)” (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255.) The “deceptive practices proscribed in the CLRA include the concealment or suppression of material facts. (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 37; McAdams v. Monier, Inc. (2010) 182 Cal.App.4th 174, 185.) This is because fraud or deceit encompasses the suppression of a fact by one who is bound to disclose it, or the suppression of a fact that is contrary to a representation that was made. (Outboard Marine, at p. 37; McAdams, at p. 185; Civ. Code, § 1710, subd. 3.)” (Collins, at p. 255.)

Despite his assertion on appeal to the contrary, the record before this court is clear that Alcaraz’s claims under the CLRA sound in fraud, and require a showing of scienter. The basis for the claims was the same conduct as the intentional misrepresentation and concealment claims, i.e., A&A’s failure to disclose that the car had frame damage from a prior accident and Elwaneer’s statement that the car had not been in an accident. As the trial court concluded on the motion for new trial, the claims required “finding of a statement known to be untrue or misleading or which by the exercise of reasonable care should be known, to be untrue or misleading.” As the trial court noted, the “same evidence was used to support all the claims related to the representation that was made” and therefore, “the findings with respect to negligent misrepresentation are inconsistent with the CLRA finding of liability.” (Ibid.) Put another way, if A&A was only liable because it did not believe the Murano was in an accident, but had no reasonable basis for that belief, that conclusion would be inconsistent with CLRA liability.

Further, as discussed, the trial court has wide discretion to determine whether the claims are so interrelated that granting a new trial as to one and not another would be prejudicial to the parties. (See Leipert v. Honold (1952) 39 Cal.2d 462, 466-467 [“The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition. Such retrials should be granted, however, only if it is clear that no injustice will result.”].) Given the overlap between the CLRA causes of action and the misrepresentation claims, we cannot say that the court’s decision to grant a new trial on the CLRA claim because of the flawed verdict was an abuse of its discretion.

Like the CLRA claim, which Alcaraz concedes was based on Elwaneer’s assertion the car had not been in an accident, the concealment claim is also closely connected to the misrepresentation claims. The trial court concluded that the inconsistency in the verdict on the negligent and intentional misrepresentation claims also infected the concealment claim. Its order states, “The instruction regarding concealment sets forth the following as an element that Plaintiff must prove: That defendant disclosed some facts to Mr. Alcaraz but intentionally failed to disclose other facts, making the disclosure deceptive. This element is inextricably intertwined with what defendant disclosed to plaintiff when plaintiff asked about the car. Plaintiff relied on the same evidence in support of all claims. If the representation at issue was that the vehicle had not been in an accident and if the person making such representation honestly believed that to be true and had no reasonable basis to believe otherwise, the disclosure could not be deceptive by the failure to disclose other facts. Given how inextricably related plaintiff’s claims are, and that the gravamen of this cause of action is the same misrepresentation that serves as the basis for the failure to disclose other facts, the court can[not] resolve the inconsistency in the finding[s]. . . .”

As the trial court concluded, the claims were interwoven at trial. The jury’s verdict provides no way to discern whether the finding on the concealment claim was based on conduct separate from the conduct that formed the basis for the verdicts on the intentional and negligent misrepresentation claims. Given the evidence, it is possible the jury relied on the same conduct for its decision on all four claims. Accordingly, the court’s decision that retrial of all the claims is necessary was not an abuse of its discretion. (See Horton, supra, 126 Cal.App.4th at p. 682 [“Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers.”].)

Finally, Alcaraz argues the court erred by granting the new trial motion with respect to punitive damages. He contends that the intent to cause injury required to award punitive damages is separate and apart from the element of scienter at issue with the other claims. For the CLRA, intentional misrepresentation, and concealment claims, the special verdict contained the question “Did A&A Auto Sales, in [insert claim], engage in conduct with malice, oppression, or fraud?” The jury answered “yes” to all three. Alcaraz’s contention that the punitive damage award is not impacted by the inconsistency in the verdict because the jury clearly found that A&A acted intentionally or maliciously is not well-taken. The findings on punitive damages are bound to the other claims, which we conclude are tied to the inconsistency in the verdict. Because we reject Alcaraz’s argument with respect to the CLRA and concealment claims, we must also affirm the court’s new trial order as it relates to punitive damages. If a later trier of fact determines that the misrepresentations were negligent, not intentional, a punitive damage award may not be warranted.

In sum, the trial court did not abuse its discretion by finding that the concealment claim, CLRA claim, and punitive damage findings are inextricably interwoven with the jury’s inconsistent verdict on the misrepresentation claims. (See Leipert v. Honold (1952) 39 Cal.2d 462, 466–467 [“The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition. Such retrials should be granted, however, only if it is clear that no injustice will result.”]; Schelbauer v. Butler Mfg. Co. (1984) 35 Cal.3d 442, 456 [“A reviewing court should not modify an order granting a new trial on all issues to one granting a limited new trial ‘unless such an order should have been made as a matter of law.’ “]; Liodas v. Sahadi (1977) 19 Cal.3d 278, 286 [“When a limited retrial might be prejudicial to either party, the failure to grant a new trial on all of the issues is an abuse of discretion.”].) The court’s order granting a new trial was not in error and its decision finding a limited new trial would be prejudicial to A&A was not an abuse of its discretion.

DISPOSITION

The orders are affirmed. The parties are to bear their own costs of appeal.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.