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Court of Appeal, Second District, Division 2, California.

FORD DEALERS ASSOCIATION, a non-profit corporation; Motor Car Dealers Association of Southern California, a non-profit corporation, on behalf of themselves and on behalf of their members, et al., Plaintiffs and Appellants, v. DEPARTMENT OF MOTOR VEHICLES, State of California; Doris Alexis, as Director of the Department of Motor Vehicles, and Does 1 through 100, inclusive, Defendants and Appellants.

Civ. 59263.

Decided: July 15, 1981

George Deukmejian, Atty. Gen., John J. Crimmins, Deputy Atty. Gen., for defendants and appellants. Lawrence Silver, Beverly Hills, for plaintiffs and appellants.

Plaintiff Ford Dealers Association (FDA) is a non-profit corporation consisting of 132 member automobile dealers in Southern California and elsewhere, selling motor vehicles and related products manufactured by the Ford Motor Company, Inc. Plaintiff Motor Car Dealers Association of Southern California (MCD) is a non-profit corporation consisting of 900 member automobile dealers in Southern California and elsewhere, selling the entire spectrum of motor vehicles and related products available on the market. The remaining plaintiffs are corporations licensed by defendant Department of Motor Vehicles (DMV) similarly engaged in selling motor vehicles and related products in the State of California. DMV as a department of the State of California has the responsibility of licensing automobile dealers under the Vehicle Code, including the individual plaintiffs herein and the member dealers of FDA and MCD.

In November of 1977, DMV caused to be filed with the California Secretary of State an “Order Adopting, Amending or Repealing Regulations of the Department of Motor Vehicles,” wherein some two dozen new regulations relating to Division 5 of the Vehicle Code and set out in Title 13 of the California Administrative Code were adopted.

Seven of these regulations were challenged by plaintiffs in an action brought by them for declaratory and injunctive relief, on the grounds such regulations were beyond the power of DMV to promulgate and, in some instances, were repugnant to the California and United States Constitutions. That challenge was sustained by the trial court sitting without a jury.

On this appeal, the trial court's determination as to five of the seven regulations is contested. It is also claimed plaintiffs were improperly awarded expenses of $8000 in connection with defendants' failure adequately to respond to certain requests for admissions proffered by plaintiffs as part of their discovery efforts. We affirm the judgment from which the appeal is taken.

At the outset, we observe defendant DMV, through its Director, is authorized generally to “adopt and enforce rules and regulations as may be necessary to carry out the provisions of (the Vehicle) code relating to the department.” (Veh.Code, s 1651.) At the same time, “an administrative agency has no authority to enact rules or regulations which alter or enlarge the terms of Legislative enactments” (Addison v. Department of Motor Vehicles (1977) 69 Cal.App.3d 486, at 494, 138 Cal.Rptr. 185) and may not “exceed the authority granted the agency in the relevant enabling legislation.” (Selby v. Department of Motor Vehicles (1980) 110 Cal.App.3d 470 at 474, 168 Cal.Rptr. 36.) Nor, of course, may it purport to promulgate regulations which are constitutionally deficient.

We likewise observe it is settled that penal statutes are strictly construed in favor of an alleged or potential violator (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617) and that the statutory provisions with which the regulations here in issue are concerned are penal in character. Thus, section 40000.11 of the Vehicle Code provides that:

“A violation of any of the following provisions shall constitute a misdemeanor and not an infraction:

Division 5 (commencing with Section 11100), relating to occupational licensing and business regulations.“

(See 49er Chevrolet v. New Motor Vehicle Board (1978) 84 Cal.App.3d 84, 90, 148 Cal.Rptr. 236; 57 Op.Atty.Gen. 176, 177 (1974).)

The first of the regulations involved, s 402.00, provides:

“402.00 ‘Advertising’ Defined. (a) In the broad context of Vehicle Code Section 11713(a), any statement advertised refers to any statement, representation, act or announcement intentionally communicated to any member of the public by any means whatever, whether orally, in writing or otherwise.

“(b) As used elsewhere in the Vehicle Code and in this article, the terms ‘advertising’, ‘advertisement’, or ‘advertise’ refer to a statement, representation, act or announcement intentionally communicated to the public generally for the purpose of arousing a desire to buy or patronize.”

Various theories were urged in the trial court by plaintiffs to demonstrate the invalidity of the regulation, one most notably, that the terms of the statute from which the regulation derives1 have reference to the kind of advertising which is directed to the public generally as opposed to that which might involve an individualized presentation. It would appear to us in passing such an argument is persuasive, in that the statute specifically refers to disseminations “before the public in this state” (see fn. 1) by means which, properly understood, are not associated with such individual encounters.2 But however that may be, the premise relied upon by the trial judge in concluding the regulation was defective, and which we find sufficient for that purpose, was that Vehicle Code s 11713 proscribes specified activities only for “the holder of any license issued under this article,” a descriptive limiting phrase which, by virtue of the fact only dealers, transporters and manufacturers are covered by the article referred to could not include salespersons, who are licensed under a separate article. The regulation, on the other hand is not similarly limited, but by its terms encompasses any statements, representations, acts or announcements, presumably made by any person, including salespersons, with the result the regulation, as promulgated, exceeds the scope of the statute to which it relates and creates potential liabilities not contemplated by the statute's terms. Such being the case, and because subsection (b) of section 402.00 depends upon subsection (a) and is not reasonably severable therefrom, the entire regulation was properly struck down.

The same is true respecting s 403.00 of the regulations in question. There it was provided:

“403.00 Advertisements. Any advertised statements, representations, or offers made in connection with the sale or attempted sale of any vehicle(s) shall be clearly set forth, and based on facts and shall be subject to these regulations and the Vehicle Code.”

The derivation of the rule, as in the previous case, is, apparently, Vehicle Code s 11713(a). (See fn. 1.) That section prohibits the dissemination of statements which are known or should be known to be “untrue or misleading.” The trial court in its conclusions of law found the regulation to be objectionable on the dual grounds that it attempted to enlarge upon the statute's requirements and that, in the attempt, it did so by terms which were vague and uncertain. While review of the record would indicate that perhaps only the second of these was actually relied upon, we are satisfied it constituted a valid basis supporting the determination. Thus the trial court, in colloquy with counsel for the defendants commented:

“THE COURT: Well, there is a vast difference between a statute that says a statement shall be true and accurate, for example, or not untrue and inaccurate, and one that says now that a representation shall be clearly set forth. What does it mean?

“MR. CRIMMINS (COUNSEL FOR DEFENDANTS:) Well I guess that you might put it this way: That it should not be based on fiction.

“THE COURT: What standard would a court use in determining whether a representation was clearly set forth?

“MR. CRIMMINS: I think the question would be whether the representation is or was made in such a way that an average reasonable person would have understood the representation for what it was. That is if the dealer said that this car was owned by a little old lady from Pasadena, that the customer could come away knowing what the dealer has said I think all the statute says is that the representation must be based on fact as opposed to based on fiction.

In fact, I don't even think that the regulation adds anything or elaborates on the basic statutes of law, but simply restates the requirements that representation must be honest.

“THE COURT: Well, suppose they are honest, but not clearly set forth?

“MR. CRIMMINS: Well, that raises a question of fact that would, of course, depend upon the circumstances of the case, but that is true in almost any situation where you have to interpret a statute. I think the regulations clearly aim at the case where a dealer makes a statement but does so in such a way that a customer doesn't see it or is not aware of it such as where perhaps advertising in a sign or where something is flashed across the television screen.

“THE COURT: Is that what it means? The physical size of the advertisement?

“MR. CRIMMINS: Well, if you were talking about physical sizes or if you were talking about television representations, it could mean that. We are talking about a variety of types of representations that dealers can make orally, advertisements in newspapers, television signs. You really have to have some kind of a standard that applies to all of those forms.

“THE COURT: Well, I am afraid that I find that this section is vague and ambiguous, and that it would not apprise men of reasonable intelligence and understanding of what was required.3

Also found unconstitutionally vague was s 404.09 of the regulations, which provided:

“404.09. Qualifying Statements. Qualifying statements used in connection with vehicle advertisements, including the qualifying statements required by this article, shall be large enough and displayed for a sufficient period of time to enable the average reader or viewer to comprehend such statements.”

The basis for the trial court's conclusion, again, is found in the following excerpts from the record:

(COUNSEL FOR DEFENDANTS:) “All this regulation is talking about is visual statements, and all it requires is that, for example, the statement on a billboard be large enough so that a person driving by on the freeway could read it.

“THE COURT: At what speed?

“MR. CRIMMINS: The speed limit. The normal speed.

“THE COURT: At what distance?

“MR. CRIMMINS: Well, I guess you might say so that a person could read Well, I think when you get that specific, really

“THE COURT: Well, you are talking about penal statutes; aren't you?

“THE COURT: The dealer is entitled to be able to know what he has to be able to do or refrain from doing in order to avoid a violation.

“MR. CRIMMINS: Well, for example, let's say we have an advertisement on television, and suddenly in a flash of a second a statement is flashed across the screen so quickly you can't read it.

“THE COURT: That would be a blessing.

“MR. CRIMMINS: I mean this regulation is not going to be hypertechnical about saying every sign must be so large and so many inches and so forth. All it is saying is that if you are in a position where you can read the sign, see the picture as a whole, there shouldn't be some little qualifying statement hidden somewhere in the corner that you can't see.

“THE COURT: I think that the purpose of the regulation may be noble, but like so many other things, in this form it simply is meaningless.

“MR. CRIMMINS: Well, I think to be any more specific would be a particular problem. I mean we are talking about the standard of the reasonable man. It is a standard that is applied in other areas.

(THE COURT:) “But the regulation doesn't use the term ”reasonable man. “ It uses the term ”average reader or viewer,“ and talks about large enough ” and display for a sufficient period of time to enable the average reader or viewer to comprehend such statements.“

What is the average reader or viewer, and how can he determine what period of time it takes him to comprehend a statement?

“THE COURT: It will be in the unbridled discretion of some administrative judge as to whether or not it was displayed for a sufficient length of time for some average person to comprehend it.”

It was then concluded:

“THE COURT: All right. Well, this regulation, as I have indicated, fails to meet the minimum legal requirements for penal regulation. It simply cannot stand. I have already indicated that it is vague and ambiguous.”4

In this there was no error.

Similarly without error was the trial court's conclusion s 403.02 of the regulations was defective, at least insofar as it purported to relate to rental vehicles. That section required:

“403.02 Vehicle History. (a) Express advertisements of a vehicle's prior use or ownership history must be accurate.

(b) Former taxicabs, rental vehicles, publicly owned vehicles, insurance salvage vehicles and revived salvage vehicles shall be clearly identified as such if the previous status is known to the seller.

(c) If a vehicle is advertised and/or sold as a ‘demonstrator’ and such a vehicle has been previously registered or sold to a retail purchaser, the selling dealer shall clearly disclose to the buyer the fact of such prior registration or sale before obtaining the buyer's signature on a purchase order or sales contract.“

The record concerning its formulation and promulgation discloses the following testimony from DMV representatives:

“Q. Was there any formal this is, again, up to the point of the hearings was there any formal internal fact-finding process resulting in a writing, statistical survey, expert analysis in connection with the promulgation of any of the regulations up to the point of the hearing?

“A. My answer the answer is no.”

“Q. Subsequent to the hearings, did the Department engage some outside experts or commission any statistical study in connection with the promulgation of these regulations?

“A. Reanswer that question, no.

“Q. All right. Other than your personal experience and the personal experience of other investigators in the field, did you have any survey, report, investigation, reports of investigation, or any other fact-finding process that you utilized?

“A. No.

“Q. Was there any evidence or statement at any of those hearings that rental vehicles were not as good as privately owned vehicles, other than your personal opinion?

“A. No.

“Q. All right. So is it fair to say that there was nothing in that record which factually supported the proposition that rental vehicles are of a lower quality type of used car than are privately owned used cars?

“A. No more than there was any factual evidence that the contrary was so.”

From this the trial court in further colloquy observed:

(THE COURT:) “I think that this is the type of a regulation which the agency would have the right to make if there is some basis for it. If there is some factual evidentiary basis for making this classification, I think they would certainly have the right to do it. The question is, is there any such evidentiary basis in this proceeding on this record.

“MR. CRIMMINS (COUNSEL FOR DEFENDANTS:) Well, the opinion of Mr. Wentland was based on his own personal experience and on his understanding of the experience of other individuals in the department concerning rental cars. They did not conduct a formal study in the sense of asking somebody to do a survey on the status of rental cars in a particular area as opposed to the quality of privately owned vehicles in that area. However, it was This opinion was not based on whimsy or fancy. It was based on the accumulated knowledge Mr. Wentland had in his years of experience in the motor vehicle industry.

THE COURT: What evidence is there that it wasn't based on whim and fancy, no matter how well intentioned?

“MR. CRIMMINS: Well, the evidence in the record, although it was limited, nonetheless, Mr. Wentland did testify that such vehicles experienced harder use and different drivers, excessive use in most cases, and perhaps not repaired and maintained the same way a privately owned vehicle is.

“THE COURT: Yes, but Mr. Wentland's statements were not based on anything other than his own opinion, as far as I can see.

It was then concluded, correctly we think, that:

“THE COURT: Well, as I say, I think that the agency has the right to make this type of regulation upon an evidentiary showing and evidentiary basis, but I don't think that there is such an evidentiary basis in this record to support it.

Finally, it was determined that s 404.03 of the regulations was invalid in providing that:

“404.03 Dealer Added Charges. A dealer may not identify a separate charge or charges for services performed on vehicles prior to delivery to the extent the dealer is or will be reimbursed for such expenditures by another party. If a dealer does identify a separate charge or charges for delivery and preparation services performed over and above those delivery and preparation obligations specified by the franchisor and for which the dealer is to be reimbursed by the franchisor, then the services performed and the charges therefore shall be separately itemized. Such added charges must be included in the advertised price.”

The basis for the conclusion was the trial court's belief that, within the context of dealer behavior intended to be controlled, there was lacking any justification for the means of regulation sought to be employed. Thus, as explained at trial by counsel for the defendants:

“MR. CRIMMINS (COUNSEL FOR DEFENDANTS:) All this says is that if a dealer is reimbursed * * by a manufacturer * * * for performing certain services, he cannot turn around and tell the customer, ‘Part of the price I am charging you for this car consists of reimbursements for performing these services.’

He can charge him any amount that he wants, but, for example, if a dealer is paid $500 for installing various parts in the car, he cannot charge a price, say, of $8,000 for the car, and list among the items of that price $500 for performing certain services.

* * * * * * (T)here is no requirement of affirmative disclosure. There is simply a requirement that the dealer not represent to the customer that he is paying for something which he is not paying for. The dealer is not being paid for performing services by the customer when, in fact, he has been paid by the manufacturer. The customer is paying for the car, and the money is going to the dealer as a profit, not as a reimbursement for performing those services.

The trial court's reasoning, on the other hand, emerges from the following:

“THE COURT: What about the example Mr. Silver gave? Suppose someone makes a gift of a radio to a dealer, and he installs it in a car and, then, charges the customer for the radio?

“MR. CRIMMINS: Well, that is an interesting question. I can't tell you the answer offhand what the department would say.

“THE COURT: He is required to tell the customer that the radio didn't cost him anything? He is precluded from charging the customer something for the radio because it didn't cost him anything?

“MR. CRIMMINS: Well, he hasn't been reimbursed by the manufacturer for performing a service. He has been given something free as a gratuity.

“THE COURT: What is the difference?

“MR. CRIMMINS: Well, in one case, it is as though a businessman represents to a client, to whom he is handing a bill, that he is paying for certain services as part of his total fee when, in fact, someone else paid for those services, and that the addition to the fee is really going to the businessman. There's nothing wrong with a businessman charging that amount. It is just the fact that he misrepresents to the customer what part of that amount is going for.

“THE COURT: I am not sure that is the point. The customer is getting charged for the services performed on the vehicle. The fact that they have already been reimbursed doesn't preclude a second charge; does it?

“THE COURT: Well, it is clear it is not a regulation of fixed prices, but your argument, as I understand it, is necessary to prevent false or misleading information; is that right?

“MR. CRIMMINS: Well, if a dealer has been reimbursed for performing a service by the manufacturer, and, then, represents to the customer that included in the charge, the total price of the car, is a charge for reimbursement for those services, it suggests to the customer that the customer has to pay for those services. Otherwise, they won't be performed when, in fact, they have already been paid for.

“THE COURT: That is not exactly what happened, is it? He doesn't tell the customer that it is reimbursement. He is charging it. This is what you are going to have to pay. What is misleading?

If a dealer says, “I am going to charge you $200 for the installation of an air conditioner,” even though it cost him nothing, zero, what is misleading about that?

“MR. CRIMMINS: Well, the logical implication is that the air conditioner that the installation has not been paid for, and that it must be paid for by the consumer.

“THE COURT: Why is that a logical implication, and what difference does it make even if it is true?

“THE COURT: Well, I don't see anything misleading about it. The buyer knows exactly what he is going to have to pay.

“MR. CRIMMINS: Well, he knows what he is paying.

“THE COURT: The dealer doesn't tell him what his cost is of the automobile, either, does he? Do you think that the buyer really believes that the dealer isn't making a profit on the car because he doesn't disclose the fact that he is making a profit?

“MR. CRIMMINS: Well, of course not. We are not talking about the right to make a profit simply

“THE COURT: I am talking about disclosure and whether a statement is false or misleading, and I am trying to determine what is misleading by a statement by a dealer that he is going to charge a customer $200 for installing an air conditioner. That is what he is going to charge him. The statement is not misleading.

“THE COURT: Suppose that the customer believes that the dealer profit on the automobile is $1,000 when, in fact, it is $4,000?

“MR. CRIMMINS: Well, that is really of no concern.

“THE COURT: Is it misleading because the dealer advertises the gross sales price without telling what the profit is?

“THE COURT: Now, in a particular instance the dealer may make a misleading statement. There is no question about it. He can go on and say any number of things that would be misleading, but this doesn't do that. This doesn't say that you can't make a false and misleading statement. This tells him that he can't identify a separate charge, even though it is not false or misleading. I think that is the difficulty.

“MR. CRIMMINS: Well, I guess the difference between us is that the department feels it is misleading because if a customer sees a total price of say $7,000, and the price is broken down by the dealer as including let's say $1,000 for preparation and services, and that is broken down into $100 for an air conditioner, $100 for a radio, $100 for a tape deck and so on all of the way down, the customer seeing that would assume that he is actually paying the dealer to do those services and put in those parts when, in fact, the dealer has already been paid.

Now, the dealer is free to add that $1,000 on, I think just to the price, and say $1,000 period, but to represent it as something that it is not

THE COURT: He is free to hide the price, but he is not free to separately state it?

So understanding the import of the regulation, the trial court concluded, properly in our view, that:

“THE COURT: Well, I think the first sentence, as I have indicated, is the offending sentence, and there is no legal justification for it, and the section that is not severable that is the sentence is not severable from the balance of the section.”

In addition to challenging the regulations described, respondents sought and obtained the costs, including attorneys' fees, incurred by them in taking depositions of two DMV representatives after the Department denied requests for admissions that were designed to ascertain what fact finding studies, investigations or surveys were made or relied upon in the formulation of the regulations. In pertinent part, Code of Civil Procedure section 2033 specifies that:

“* * * Each of the matters of which an admission is requested shall be deemed admitted, * * * unless * * * the party to whom the request is directed served upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission * * *.”

The trial court found the provisions of this statute had not been complied with by the defendants that there were no good reasons for the defendants' denial of the requests and that the admissions sought were of substantial importance in that the information derived therefrom was availed of by plaintiffs in establishing the invalidity of one of the regulations. It accordingly awarded plaintiffs the sum of $8000 as reasonable expenses incurred in establishing the truth of the matters denied, agreeably with Code of Civil Procedure section 2034(c).5 Our review of the record persuades us that in this there was no abuse of discretion. (See Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 273, 150 Cal.Rptr. 828.)

The judgment appealed from is affirmed. Costs to plaintiffs-appellants.

At issue is the validity of the Department of Motor Vehicle's regulations, issued under the authority of Vehicle Code section 1651 to implement those provisions of Vehicle Code section 11713 which are directed against false and misleading advertising by an automobile dealer. That section makes it unlawful for a dealer:

“To make or disseminate or cause to be made or disseminated before the public in this state, in any newspaper or other publication, or any advertising device, or by public outcry, or proclamation, or in any other manner or means whatever, any statement which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading ” (Italics added.)

The key regulation in dispute is Regulation 402.00, which declares that section 11713 applies to any representation intentionally communicated to any member of the public by any means whatever (oral, written, or otherwise) for the purpose of arousing a desire to buy. The bone of contention between the parties is whether section 11713 makes a dealer liable to suspension or revocation of his license pursuant to Vehicle Code section 11705 for false representations made by his salesmen to prospective customers. Regulation 402.00 so indicates, but, respondents argue, imposition of such liability on a dealer for misrepresentations of his salesmen is beyond the scope of the statute.

In my view, the regulation is fully warranted by the statute's prohibition against false advertising by any means whatever. Oral representations by salesmen to prospective customers are perhaps the most critical feature of a dealer's advertising to the public. It has long been a cardinal rule that a principal is responsible for the acts of his agent committed in the scope of his authority (qui facit per alium facit per se ). A salesman is put on the lot by his employer to make representations to prospective customers. It is the employer's responsibility to see that his employee's representations are true. The day has long passed when a principal could claim that the authority of his agent was limited to the making of true representations and that an agent who spoke falsely was acting outside the scope of his employment. In sum, representations of the salesman on the lot are representations of the dealer. Such was the view of section 11713 taken by the Court of Appeal in Feather River Trailer Sales, Inc. v. Sillas (1979) 96 Cal.App.3d 234, 158 Cal.Rptr. 26. I think that case was properly decided, and, persuaded by the authorities therein cited. I would follow its conclusion that section 11713 prohibits false representations by a dealer's salesmen and that when such false representations occur the dealer becomes subject to the discipline authorized by the Vehicle Code.

The attacks at bench directed against the other DMV regulations amount to little more than skirmishes at the outposts. Those other regulations deal with specific advertising abuses in the retailing of vehicles, and they cover such matters as clarity and factuality in advertising (403.00), disclosure of an advertised vehicle's known prior history (403.02), dealer-added charges above advertised prices (404.03), and readability of qualifying statements in advertising (404.09). I find none of these regulations either unconstitutionally vague or beyond the scope of section 11713.

I would reverse the judgment and dismiss the cross-appeal.


1.  Vehicle Code s 11713 in pertinent part provides:“11713. Unlawful acts.It shall be unlawful and a violation of this code for the holder of any license issued under this article:(a) To make or disseminate or cause to be made or disseminated before the public in this state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, any statement which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading; or to so make or disseminate or cause to be so disseminated any such statement as part of a plan or scheme with the intent not to sell any vehicle or service so advertised at the price stated therein, or as so advertised.“

2.  Feather River Trailer Sales, Inc. v. Sillas (1979) 96 Cal.App.3d 234, 248-49, 158 Cal.Rptr. 26 held to the contrary. It was there opined that: “the term ‘advertised’ as it is used in the Vehicle Code sections before us, (Veh.Code ss 11713(a) and 11713.1, subd. (e)) is nowhere specifically defined in that code. Historically, however, the terms advertising and ‘advertisement’ have been held to be broad enough to include oral representations made on a one-to-one basis.” (Id., at p. 248, 158 Cal.Rptr. 26.)

3.  The DMV investigator who had drafted the regulation testified to similar effect, as follows:“Q. When you're referring to any representations or offers, you use the words, they ”shall be clearly set forth.“What do you mean by “clearly set forth”?“A. Well, we're talking about specific vehicles, specific offers, prices, warranties, or any, anything in connection with a specific item. I don't know how else to say it. It's just ”attempted sale of any vehicle shall be clearly set forth, and based on facts,“ and maybe it should have said true facts or whatever, and ”subject to these regulations.“‘Q. Again, I'm the salesmen on the lot, and I say to you, I think this is a good buy.Is this a representation which is clearly set forth and based on facts?“A. That's a tough one to answer. I have to have a little bit more information, but if it's a good buy for what person wanted the vehicle, or if it was a bread truck or whatever, why that's what we're talking about. That's what this whole thing is all about.“Q. Do you find any ambiguities in that language that the representation ” shall be clearly set forth and based on facts“?“A. I can see how someone, if they wanted to, could make it very ambiguous.“Q. If you were a dealer, do you think that would give you clear guidance as to what was prohibited and what was not prohibited?“A. I don't know. The reason I say that, that's not one of the sections that I would allege if I were going to find something wrong.“Q. Why would you not use that section, because of it's ambiguity?“A. No. Because there are other sections that probably would cover a specific situation more.”

4.  The DMV investigator-drafter here testified:“Q. All right. What is the meaning of the language in the last clause that the qualifying statements ‘shall be large enough and displayed for a sufficient period of time to enable the average reader or viewer to comprehend such statements'?“A. * * * * The average reader and I can't define average and this is where I can see where a person could have some problem with this, but I think if you took the five of us in the room and flashed up cards, and we wouldn't be reading the same thing, insofar as getting through this thing. This is what I'm referring to. * * *.“Q. Couldn't you have put it this way, any qualfying (sic) statements shall be no smaller than 50 percent of the remainder of the advertisement, 50 percent of the size?“A. Oh, sure, you could. * * *“Q. What is the average reader or viewer's time in which to comprehend?“A. I don't know. We'd have to get a reading specialist to come into that. * * *“Q. Are you able, on the basis of this stand (sic), able to advise a dealer as to how large in print on a newspaper ad any qualfying (sic) statement has to be?“A. On the basis of this?“Q. Yes.“A. No. * * *“Q. Well, couldn't you establish some standard by which you, by more detail, would be able to give dealers some idea, other than trying to determine what the average reader's comprehension is in terms of advertisements or in terms of billboard advertisements?“A. Well, Mr. Silver, it just isn't easy to write legislation, believe me, and I've written a lot of it.“Q. By the same token, it isn't easy to follow it.“A. It's really difficult, really difficult. And I don't know how you do it.”

5.  “(c) If a party, after being served with a request under Section 2033 of this code to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuiness of any such document or the truth of any such matter of fact, he may apply to the court in the same action for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. If the court finds that there were no good reasons for the denial and that the admissions sought were of substantial importance, the order shall be made.”

ROTH, Presiding Justice.

COMPTON, J., concurs.