Lyday v. M&M Towing Bros, Inc., et al

1 Undisputed Material Facts (UMF), 3, 7-10 & 12-15. Evidence presented: Defendant’s Request for Judicial Notice and attached exhibits; Plaintiff’s Response and supporting evidence.

Analysis

Material Facts: State Farm deemed the vehicle a total loss. (UMF, 3). The settlement required the surrender of the vehicle in exchange for payment. (UMF, 7). Plaintiff had the opportunity to retrieve items from the vehicle. (UMF, 8). Plaintiff did not pay towing or storage fees to Defendant. (UMF, 9-10). State Farm did not charge Plaintiff back for storage or towing fees. (UMF. 12). Plaintiff would have paid the same deductible regardless of the towing company. (UMF, 13). Plaintiff’s settlement was not reduced by storage or towing fees. (UMF, 14.)

Argument: Here Defendant argues that he is entitled to summary judgment because (1) Plaintiff cannot establish recoverable damages, (2) Plaintiff cannot establish unfair or deceptive conduct (Civil Code §1770), (3) Plaintiff cannot establish improper lien or unauthorized tow (Civil Code § 3070(d)(1)), (4) Plaintiff cannot establish excessive fee damages (Civil Code § 3070(c)/Vehicle Code § 22658), (6) Plaintiff lacks evidence supporting liability and (7) Plaintiff was not the legal owner of the vehicle.

The 1st, 2nd, and 3rd Causes for unfair business practices – The Consumer Legal Remedies Act (CLRA) prohibits “unfair methods of competition and unfair or deceptive acts or practices” in transactions involving the sale of goods or services to any consumer. (Civ. Code, § 1770; also Gutierrez v. Carmax Auto Superstore Cal. (2018) 19 Cal.App.5th 1234, 1249.) The Complaint frames the first, second, and third causes as the Defendant having unfair and deceptive business practices including inserting an unconscionable provision in its towing contract requesting $5,195.00, in cash for a vehicle after one day in storage; frustrating Plaintiff’s efforts to pick up the vehicle; and failing to remedy his unfair business practices despite legal notice pursuant to Civil Code section 1782.

Defendant argues that Plaintiff’s claims against Defendant for unfair business practices fail since Plaintiff is unable to establish that Defendant caused her damages. Defendant contends is an undisputed material fact that Plaintiff did not pay any towing or storage fees; that State Farm paid the towing and storage fees; State Farm did not charge Plaintiff back for towing or storage; Plaintiff’s settlement was not reduced because of towing or storage charges; and Plaintiff would have paid the same deductible regardless of towing company.

Defendant argues Plaintiff cannot establish wrongful conduct since Plaintiff accepted the totalloss settlement and had the opportunity to retrieve personal property. Further, State Farm permitted the tow and consented to the amount paid. Citing Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 641, Defendant argues CLRA claims must demonstrate actual economic injury caused by the alleged misconduct. Defendant contends here Plaintiff cannot do so because Plaintiff admits she suffered no out-of-pocket towing or storage loss.

Here, Defendant negates the element of damages as it is an undisputed material fact that Plaintiff did not pay any storage or towing fees to Defendant; State Farm paid these fees; and Plaintiff’s settlement with State Farm was not reduced by the towing or storage fees. (UMF, 9-10, 12, & 14.)

In her Opposition, Plaintiff argues she suffered “the damage of the loss of a car and frustration of the initial efforts to fix it.” Plaintiff, however, fails to submit any admissible evidence that she sustained damages due to Defendant’s misconduct. Both parties cite to Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, in their pleadings. In Meyer, the California Supreme Court held that the mere employment of an unlawful practice is insufficient to authorize a CLRA suit, instead a plaintiff must show that the practice has resulted in some kind of “tangible increased cost or burden to the consumer.” (Id. at 643.)

Plaintiff presents no evidence to support her contention that, despite the settlement from State Farm, she sustained a tangible increased cost or burden. Speculation is not evidence that can be utilized in opposing a motion for summary judgment. (Stokes v. Forty Nines Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1214.)

The 4th, 5th, and 6th Causes for violation of Civil Code section 3070 – The Complaint frames the issue as to the fourth, fifth, and sixth causes of action as follows: Defendant improperly showed up without being called and caused a vehicle to be towed to create a lienhold interest; Defendant failed to disclose fees and charges; and Defendant charged excessive fees and failed to accept credit cards.

As to the fourth, fifth, and sixth causes of action in the Complaint, Defendant argues the deemed admissions establish that State Farm permitted the tow; State Farm consented to the charges; and Plaintiff paid no towing or storage fees. Defendant argues Plaintiff cannot establish damages because Plaintiff paid no towing or storage fees and suffered no reduction in settlement proceeds. Here, it is an undisputed material fact that Plaintiff did not pay any towing or storage fees to the Defendant. (UMF, 9-10). Defendant contends there can be no other damages alleged by the Plaintiff as State Farm paid a settlement for the total loss of the car. As such, Defendant met his initial burden of showing no material facts in dispute as to the element of damages and we turn to Plaintiff’s burden to show a triable issue of fact exists.

Here, Plaintiff argues that “the settlement funds were not sufficient to properly replace the vehicle,” but she fails to present any evidence of such. Speculation is not evidence that can be utilized in opposing a motion for summary judgment. (Stokes v. Forty Nines Stadium Management Co., LLC, supra, 107 Cal.App.5th at p. 1214.)

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