James SINCLAIR, on behalf of the General Public and of himself and of all other persons similarly situated, Plaintiff and Appellant, v. FOTOMAT CORPORATION, Defendant and Respondent.
Appellant, James Sinclair, appeals from a judgment of dismissal entered after a demurrer to his sixth amended complaint was sustained without leave to amend.
Sinclair's complaint is comprised of five causes of action from which we are able to discern the following operative facts.1 On or about August 31, 1979, for the purpose of having photographic prints made, appellant brought three strips of negative film to one of respondent Fotomat's kiosks in Hollywood, California. Sinclair was given to understand that the work would be completed by September 9, 1979, for a price of $2.44. On that date, Sinclair returned to that same kiosk, at which time he learned that the film had not been returned from Fotomat's processing plant. Sinclair later located the film at Fotomat's unclaimed processing office. Pursuant to his attempt to get his film returned, Sinclair was told by telephone that his film would be released to him only if he paid an additional $1.00 for “handling” and that the property would be mailed to him. Sinclair refused to pay the additional $1.00 charge for handling, choosing instead to file suit for replevin in the superior court on October 26, 1979. On November 19, 1979, Fotomat waived the $1.00 charge and returned Sinclair's film to the Hollywood location, wherein Sinclair was placed in receipt of same.
Unsatisfied with only the return of his film and without compensation for the time and money spent in pursuing his replevin action,2 Sinclair thereupon amended his complaint to include a class action. In its present sixth amended form, this amendment includes allegations to the effect that “some 10,000 persons per month” suffered the same demand for a handling charge, and paid said charge, “so that from 4 years before the filing of this action ․ some $200,000.00 has thereby been collected wrongfully by defendant ․”3
Appellant's first amended complaint was met with a demurrer which was sustained with leave to amend. A similar fate befell amended complaints two, three, four, and five.4 Finally, on November 12, 1981, a general demurrer to Sinclair's sixth amended complaint was sustained without leave to amend. Included amongst the trial court's conclusions were that appellant's complaint failed to state any cause of action pursuant to section 430.10, subdivision (e), of the Code of Civil Procedure; that in the first cause of action, the asking of a modest charge for handling a transaction not as originally contemplated, did not constitute unfair competition; that appellant was not a member of any class of people who had paid a handling charge; that there was an insufficient pleading of an ascertainable class of people who were asked to pay said charge and refused to do so; and that neither the elements of fraud or conversion were satisfactorily pleaded.
A motion for reconsideration of the court's ruling was argued and denied, and pursuant to section 581(3) of the Code of Civil Procedure, the action was dismissed.
The scope of our review is limited to a determination of whether Fotomat's demurrer was sustained erroneously and whether sustaining the demurrer without leave to amend constituted an abuse of discretion. (Pollack v. Lytle (1981) 120 Cal.App.3d 931, 939, 175 Cal.Rptr. 81.) For the reasoning set forth below, we find the trial court did act properly in both respects. Accordingly, we affirm the judgment.
Sinclair's first cause of action is for “statutory unfair competition.” Initially, we note that although authority for bringing this type of action was traditionally delegated to public officers, modernly section 17203 of the Business and Professions Code empowers private citizens with equal authority to bring suit on behalf of the general public for unfair competition.5 (Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71–73, 164 Cal.Rptr. 279.) We further note that our reading of this statutory grant limits a private individual to the remedy of injunctive relief only, making no provision for recovery of monetary damages by said individual.6 Thus, the damages sought by appellant under this theory are not recoverable.7
Proceeding on the supposition that Sinclair's complaint for unfair competition is for injunctive relief only, we turn to the prevailing standard for establishing what might, under these circumstances, be more appropriately termed an action for unfair business practices. Our Supreme Court has consistently held business practices which are unlawful under section 17200 to include “ ‘ “anything that can properly be called a business practice and that at the same time is forbidden by law.” ’ ” (People v. McKale (1979) 25 Cal.3d 626, 632, 159 Cal.Rptr. 811, 602 P.2d 731, quoting from Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 113, 101 Cal.Rptr. 745, 496 P.2d 817.) Amplifying this expansive definition, the McKale court set forth at 25 Cal.3d page 635, 159 Cal.Rptr. 811, 602 P.2d 731 the essential test as being “ ‘․ whether the public is likely to be deceived ․ (Id.)’ ”, quoting from People ex rel. Mosk v. National Research Co. of Cal. (1962) 201 Cal.App.2d 765, 772, 20 Cal.Rptr. 516.
Correlative to that definition, we held in Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, 162 Cal.Rptr. 543, “․ that the determination of whether a particular business practice is unfair necessarily involves an examination of its impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim—a weighing process quite similar to the one enjoined on us by the law of nuisance. [Citations.]” We also emphasized that since a complaint is unlikely to reveal the justification for a given defendant's conduct, the defendant should be made to answer. Furthermore, should the defendant demonstrate that the utility of the conduct justifies the practice, a summary judgment would then be appropriate. (Ibid., at p. 740, 162 Cal.Rptr. 543.)
Unlike the situation presented in the Motors case, Sinclair's complaint provides some justification for the alleged unfair conduct of Fotomat. Sinclair's complaint states in pertinent part:
“18. The question is whether or not defendant Fotomat committed fraud in demanding handling charges from customers whose photographic processing was found in the area offices' ‘unclaimed’ department after being returned from the local stands because it had not been claimed there by the customer.” (Emphasis added.)
“19. On or about 10–22–79 Fotomat did demand a $1.00 handling charge from plaintiff in the above circumstances, and plaintiff has been informed and believes that some 200,000 people have likewise had demands made of them.”
Notwithstanding the decidedly unusual form of these allegations, it is not by obscure reasoning that we might reasonably conclude that Fotomat's charge for unclaimed photographic processing is merely a nominal assessment for its service of handling and storing finished but unclaimed work.
Appellant's other assertions impliedly indicate that his film may have been mishandled and that he may have been charged under a mistaken belief by Fotomat that his film was unclaimed. Yet, the above quoted allegation suggesting that the $1.00 fee is charged for unclaimed processing sufficiently negates any alleged unfair business practice on the part of Fotomat.
There is additional support for such a conclusion. In Sinclair's verified third, fourth, and fifth amended complaints, a document was attached as an exhibit, in which the following appears:8
“It is the policy of Fotomat Corporation to define and consider unclaimed processing as completed processing which has been in a store for forty-five (45) calendar days or more from the date of the original order (date logged).
A. “Unclaimed processing will be transferred from company-operated stores to the Area Office/Inventory Center on or about the 15th of each month. Exception: Some areas served by an Inventory Center may be on a ‘staggered’ schedule.
“2. Unclaimed processing must not be returned to the store once the transfer to the Area Office/Inventory Center has been made.
“3. All monies collected from the sale of unclaimed processing will be deposited in the Unclaimed Processing Bank Account each Friday and on the last work day of the month․” Accordingly, there should be no question that Fotomat intended to provide a service for which they may have been entitled to reasonable remuneration.9
In addition to the foregoing, Sinclair's cause of action for unfair competition is defective, due in part to its failure to assert that customers who paid the handling charge were deceived in doing so.
In his second cause of action, Sinclair attempts to state a personal claim for conversion. Appellant recounts that he brought his film to Fotomat on August 31, 1979, for reprinting with the understanding that the film would be returned to him on September 9, 1979. On that date, Fotomat was unable to make said delivery. Appellant located the film on or about October 22, 1979, wherein Fotomat conditioned redelivery of the film upon the payment of a $1.00 handling charge which Fotomat knew it had no right to impose. Appellant insists he was willing to pay the originally agreed upon price of $2.44 at that time, but not the additional charge of $1.00. Lastly, Sinclair claims that he “was damaged by delay in recovery of property and the expense of time and money properly expended in pursuit of said property by, inter alia, prosecution of this action for replevin and mental suffering․”10
Appellant's allegations necessarily pose a factual scenario from which it was proper for the trial court to conclude, as a matter of law, that appellant does not state an actionable claim for conversion. The most obvious defect with this cause of action lies with Sinclair's failure to plead the essential element of damages. (See Chartered Bank of London v. Chrysler Corp. (1981) 115 Cal.App.3d 755, 759–760, 171 Cal.Rptr. 748.) Sinclair's admission that he recovered his film, coupled with his failure to plead that he suffered injury due to his loss of the use of said film, or that the film's value was appreciably diminished, would appear to establish that he suffered no actual injury. Indeed, the very fact that one is delayed in recovering his property does not, by itself, establish recoverable damages. To the contrary, Sinclair cites Civil Code section 3336,11 contending that this section permits recovery of the expenses he incurred in pursuit of his property (the replevin action) and other consequential damages (delay and emotional distress). We are unable to subscribe to this theory.
Reliance by appellant on the first part of this section is neglectful of one important prerequisite; that any damages sustained were those “which a proper degree of prudence on his part would not have averted.” “The plain meaning of amended section 3336 is that the wronged party is precluded from recovering the amount of a reasonably avoidable loss. He is therefore, placed under the burden of proving the unavoidability of the loss for which he claims reimbursement.” (Wong v. Paine, Webber, Jackson & Curtis (1962) 208 Cal.App.2d 17, 20–21, 24 Cal.Rptr. 821; accord Guerrieri v. Severini (1958) 51 Cal.2d 12, 23, 330 P.2d 635.)
Assuming, as appellant alleges, that the $1.00 handling charge was unwarranted and, in fact, unlawful, appellant was nevertheless duty bound to pay said charge if it would have mitigated his damages. In this case, when appellant refused to accede to Fotomat's alleged demand for $1.00, electing instead to further delay the recovery of his film and incur the expense of time, money and mental suffering, he only aggravated his damages in contravention of this section.12
We are not unaware of the second portion of Civil Code section 3336, authorizing compensation for the time and money properly expended in pursuit of one's property. Yet this portion is as inapplicable as the preceding portion of this code section in that appellant's failure to mitigate his damages would conclusively establish that the costs he incurred were not expended properly.
We observe another defect in this cause of action worth mentioning. Sinclair states he was denied his film as the result of a wrongful and unjustified demand of $1.00. Although this allegation seemingly satisfies the requirement that he plead that his property was withheld by a wrongful act,13 when viewed in light of allegations appearing elsewhere in his verified complaint, it does not.
Sinclair seems to impliedly contradict himself with the following: “The question is whether or not defendant Fotomat committed fraud in demanding handling charges from customers whose photographic processing was found in the area office's ‘unclaimed’ department after being returned from the local stands because it had not been claimed there by the customer.”
This statement suggests, at the very least, that some, if not all, customers (including appellant) did not initially claim their film. Ergo, these customers impliedly, if not expressly, consented to the withholding of their film. As a result, Fotomat would have been justified in retaining possession of the film.14 Necessarily there could not have existed the “wrongful withholding of property” that appellant complains of. (See 14 Cal.Jur.3d Conversion, § 30, pp. 810–811.) Consequently, appellant appears to fall within the prohibition of pleading contradictory and antagonistic facts within the same verified complaint. (Katz v. Feldman (1972) 23 Cal.App.3d 500, 504, 100 Cal.Rptr. 367; see also Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21–22, 157 Cal.Rptr. 706, 598 P.2d 866; Manti v. Gunari (1970) 5 Cal.App.3d 442, 449–450, 85 Cal.Rptr. 366.) Moreover, the cause of action at the very least fails for uncertainty. (See Code Civ.Proc., § 430.10.) 15
As a complement to the above rule, we are cognizant that pleadings must be liberally construed with a view towards substantial justice between the parties. (Longshore v. County of Ventura, supra, 25 Cal.App.3d at p. 22, 157 Cal.Rptr. 706, 598 P.2d 866; Code Civ.Proc., § 452.) However, any liberal construction should be tempered with the presumption that the plaintiff states his case as strongly as he possibly could. (Spindle v. Chubb/Pacific Indem. Group (1979) 89 Cal.App.3d 706, 711, 152 Cal.Rptr. 776.) As an alternative to striking inconsistent allegations of fact, those facts must be strictly construed against their pleader. Therefore, it seems wholly within the logical penumbra of “liberal construction” to bind the pleader to the inconsistent facts most prejudicial to him. Hence, where appellant stated an adequate defense to his cause of action, demurrer was properly sustained.
Sinclair's third cause of action purports to state a claim for a class action based on fraud. However, neither the claim for fraud nor the plea for class action status is sufficiently supported by the allegations contained in the complaint.
In pleading a cause of action for fraud, a plaintiff must specifically plead all of the following elements: (1) a misrepresentation; (2) defendant's knowledge of the falsity of said representation; (3) intent to deceive; and (4) actual reliance by the plaintiff, which resulted in actual damages. (See Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 30, 140 Cal.Rptr. 555, and 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 573, pp. 2210–2211.) Applying the above rules to the instant matter, we first observe that Sinclair's cause of action is anything but specific and certain. To begin with, this cause of action contains the same allegation we have commented upon in our discussion of appellant's previous causes of action: “The question is whether or not the defendant Fotomat committed fraud in demanding handling charges from customers whose photographic processing ․ [was] returned from the local stands because it had not been claimed there by customers.” Although we do not wish to belabor this point, the very form of this allegation suggests that the party making it is uncertain himself as to whether the facts, as alleged, constitute a cause of action for fraud.
Appellant continues with a series of allegations aimed mostly at establishing his right to maintain a class action, placing little emphasis on the specific facts from which he bases his claim of fraud.
Sinclair tells us that Fotomat falsely demanded a $1.00 handling charge from both himself and some 200,000 people; that there was no contractual right justifying said charge; that Fotomat knew or should have known that said charges were false; and that he and some of those 200,000 other people were injured by being denied possession of their property and having to expend time and money to secure same. Also it is alleged that others included in the 200,000 were damaged by paying the charge. From this skeletal recitation of facts, we are unable to determine for certain that Sinclair has an actionable claim for fraud.
Certain essential facts remain to be alleged. Included are facts from which it could reasonably be ascertained what was the essence of the misrepresentation; how it was manifested, be it oral, written, or, for that matter, merely a failure to disclose certain facts. Furthermore, despite the statement that some 200,000 people paid the charge, Sinclair neglects to state whether the 200,000 received their film in return for said payment. Nor does he tell us that every party paying the charge to recover their film did so under the belief that the charge was unwarranted or unjustified, above and beyond their agreement with Fotomat.16
Adding to this puzzle are the additional allegations in which appellant attempts to qualify his claim of fraud for a class action. This cause of action identifies two groups of prospective claimants. One group is said to include people who, like Sinclair, were denied their film and had to spend time and money to secure same. The other group is said to comprise those persons who paid the $1.00 charge.
Our first concern is that Sinclair's non-payment of the handling charge necessarily exempts him from claiming membership in the class with those who allegedly incurred said expense. On this point the Supreme Court has acknowledged that a plaintiff's non-membership in the class described in a complaint is a good ground for demurrer. (La Sala v. American Sav. & Loan Association (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113. See also Salton City Area Property Owners Association v. M. Penn Phillips Co. (1977) 75 Cal.App.3d 184, 190–191, 141 Cal.Rptr. 895.)
Secondly, Sinclair's standing as a class representative is even more in jeopardy, considering that his factual allegations do not satisfactorily state the requisite “community of interest” in common questions of law and fact between he and his proposed co-complainants. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 704, 63 Cal.Rptr. 724, 433 P.2d 732.)
In one of its earlier confrontations with the determination of the requisite “community of interest,” the California Supreme Court in Weaver v. Pasadena Tournament of Roses Assn. (1948) 32 Cal.2d 833, 198 P.2d 514, held: “While each [claimant] would be ‘similarly situated’ in that his cause of action arises under the same statute, his recovery would rest on a distinct premise correlative with varying proof as to the facts of his particular case. In such circumstances there is not the necessary ‘common or general interest’ in the subject-matter of the litigation appropriate to the maintenance of a representative action as that type of proceeding has been analyzed in the adjudicated cases.” (Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d at p. 840, 198 P.2d 514; Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 710, 63 Cal.Rptr. 724, 433 P.2d 732.)
At first blush, the facts before us seem to evince a common thread upon which a representative action might be bound together, i.e., the handling charge ($1.00) being demanded of every member of the class. However, the potential differences with respect to each potential claimant's right to recover, rather than the amount of their recovery, far exceeds any similarities. Certainly different Fotomat kiosks may have different operating procedures. Different kiosks may have made different representations concerning the $1.00 charge or lack thereof. Some claimants may not have given their correct addresses so that they could have been reminded or notified that their film was ready for pick up, so that consequently the film was transferred back to an “unclaimed” department. For any number of reasons some claimants may have decided they did not wish to pick up their film. Perhaps more importantly, many claimants may not have been misrepresented at all, believing that their failure to claim said film by a certain date sufficiently warranted the additional charge. Considering the fact that Fotomat must have intended by misrepresentation to induce its customers into paying the allegedly unjustified charge, it must appear that Fotomat deliberately transferred each claimant's film to a Fotomat area office for unclaimed film and not for some valid purpose entitling defendant to make said charge.
In view of the plethora of highly individualized questions of fact, which in turn might vary Fotomat's liability from claim to claim, class treatment would appear to be inappropriate.17 Sustaining the demurrer to this cause of action was proper.
Sinclair's fourth cause of action for conversion merely reavers the allegations contained in his third cause of action. As a result, this fourth cause of action is infected with the same failings with respect to the validity of Sinclair's plea for class action treatment outlined in our discussion of the third cause of action. More so, this fourth cause of action necessarily falls prey to the same defects which negated Sinclair's second cause of action for conversion. Accordingly, the demurrer to this cause of action was properly sustained.
Sinclair's fifth cause of action is but a variation of the theme which he originates in his first cause of action in that he again claims “statutory unfair competition.” This time, however, Sinclair places special emphasis on false advertising.
Allegations comprising this cause of action are multifarious, bordering on the irrelevant and the absurd. Sinclair alleges: “Plaintiff believes that defendant is generally conducting its business by unfair and deceptive practices in that it advertises and attempts to give the impression of a successful and sincere business, where, in fact, it refuses to hire competent workers in general because of low pay and fails to hire competent supervisors in general to generally succeed in taking up the slack left by the deficient workers so that customers find that they are being injured by disappointed expectations which were reasonable expectations at first impression.” In an abridged version, appellant goes on to allege the following:
“[D]efendant refuses to make readily accessible to customers with problems competent supervisors to solve their problems ․ when plaintiff recently called as a test for the office manager, the best he could get was the manager [sic] was a new one and was out of the office to boot.
“[D]efendant refused to post the complaint phone number on the booth when plaintiff suggested it․
“[T]he booth takes the customer's address, giving him the reasonable impression that if he or his wife loses the receipt or forgets which (or when) booth the film was left at, even if the booth does not lose the material, that he will get a mailed reminder ․ [but] Fotomat does not mail reminders․
“[P]hones are purposely left off the hook in booths while [employees are] working ․
“The Los Angeles telephone book has no phone number for the area office so a customer with a problem can reach a supervisor, and when plaintiff tried to reach the ‘800’ [telephone number] which was finally found-out-about he found it was busy most of the time giving him reason to believe that it was under-staffed on purpose by defendant.”
From the above statements, it is manifestly clear that appellant is merely seeking redress for “ills” which have been traditionally left to the arena of the market place for remedy, rather than a judicial forum.18 Under the guise of deceptive or false advertising, appellant is evidently desirous of punishing Fotomat for an act which might be best described as an exercise of poor business judgment, rather than a civil wrong.19 , 20
Section 17500 which proscribes false advertising provides in pertinent part:
“It is unlawful for any person ․ with intent directly or indirectly to ․ perform services, professional or otherwise ․ to induce the public to enter into any obligation relating thereto, 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 whatsoever, any statement, concerning such real or personal property or services ․ 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․” (Emphasis added.)
Accordingly, Sinclair's complaint must allege (1) a misrepresentation; (2) scienter; (3) intent to deceive; (4) reliance and resulting damage. (See Hales v. Ojai Valley Inn & Country Club, supra, 73 Cal.App.3d at p. 30, 140 Cal.Rptr. 555, and 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 573, pp. 2210–2211.) Applying the above rules, appellant's complaint reveals only that Fotomat advertises and that it attempts to give the impression that it is “successful and sincere.” Sinclair also fails to disclose the nature and form of said advertising. Assuming that Fotomat does in fact advertise that it is “successful and sincere,” we fail to see exactly how this statement can be interpreted as anything more than puffing, nor for that matter that it is misleading or false. Nowhere is there an accompanying allegation that Fotomat was not in business to process and sell film or that it did not intend to operate within the confines of the law.
In their general usage, both “success” and “sincerity” are conclusory and opinionated terms capable of a myriad of different interpretations. Further, they are unquantifiable, absent additional amplifications. In this context, an advertisement seeking to attract customer patronage by the representation of “success and sincerety” which, at worst, is precatory but not necessarily untrue, clearly falls within the ambit of “puffery.” Thus, it would be unreasonable to presume that either representation was false and that it would deceive the public. Similarly, we find no mention in the complaint as to how any of the enumerated acts resulted in anything but a de minimus injury to appellant and the public at large. Hence, sustaining the demurrer to this cause of action was proper.
Lastly, it is an abuse of discretion when a court sustains a demurrer without leave to amend when a complainant has not had a fair opportunity to cure any defects in his complaint. (Galanis v. Mercury International Ins. Underwriters (1967) 247 Cal.App.2d 690, 699, 55 Cal.Rptr. 890.) Further, an amendment should not be allowed if it is apparent that the pleader “has only a moral claim or a disappointed expectation, and cannot validly state a justiciable cause of action.” (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 709, 72 Cal.Rptr. 441.)
Spanning a period of some two and one-half years, the deficiencies in appellant's causes of action appear to have been raised by demurrers on more than one occasion.21 Appellant made some six attempts to overcome some of the deficiencies noted. At this stage, it was reasonable for the trial court to conclude that Sinclair's sixth amended complaint suffered not only from want of form, but also from want of facts. The court did not abuse its discretion in sustaining demurrers to this complaint without leave to amend.
We note with disfavor the fact that appellant chose to bring this action in the superior court. Judging from the totality of all pleadings filed, unhesitatingly we must conclude that although appellant's film may have been wrongfully misplaced, which resulted in a wrongful and perhaps illegal charge, he clearly inflated his damages far in excess of the damage he actually sustained. On this note we would necessarily subscribe to the reasoning set forth in Vaughn v. Certified Life Ins. Co. (1965) 238 Cal.App.2d 177, 47 Cal.Rptr. 619, in confronting a similar situation.
“Our legal procedure is replete with legal remedies designed to apply readily to almost any transaction. The pleading in the case at bench prostitutes this procedure in an attempt to fix liability on respondent which exists only in the mind of an optimistic pleader. The liability the pleader seeks to weave is verbalized but no fibers of fact, real or synthetic, are pleaded to make a web. If appellant has in fact been wronged, he [should have filed his] action in the proper court on the contract squinted at in his pleading but religiously avoided as the source of any rights.” (Vaughn v. Certified Life Ins. Co., supra, 238 Cal.App.2d at p. 182, 47 Cal.Rptr. 619.)
The judgment is affirmed.
1. Not all of these facts are alleged in each of appellant's causes of action. Of all five counts, only one (the fourth) specifically refers to another cause of action.
2. Appellant itemized his expenses in his earlier complaints. These included $51 for the filing fee, $8.50 for the sheriff's service fee, and $400 for time and miscellaneous expenditures.
3. Using these figures, our computation would put Fotomat's alleged “handling charge fund” at somewhere in the neighborhood of $480,000.
4. Both litigants failed to supply this court with copies of the nature and disposition of each demurrer made to these earlier complaints.
5. Business and Professions Code section 17203 states in relevant part:“Any person performing ․ an act of unfair competition within the state may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.”
6. In deciding this issue with respect to section 17500, which proscribes false advertising as a deceptive and unfair business practice, the holding in Chern v. Bank of America (1976) 15 Cal.3d 866, 127 Cal.Rptr. 110, 544 P.2d 1310, is in accord. In Chern, our Supreme Court sustained the dismissal of a private citizen's suit for damages reasoning that “The applicable statutes do not authorize recovery of damages by private individuals. Private relief is limited to the filing of actions for an injunction (id., § 17535); and civil penalties are recoverable only by specified public officers (id., §§ 17535, 17536).” (Id., at p. 875, 127 Cal.Rptr. 110, 544 P.2d 1310; emphasis in original.) We find the compelling reasoning in Chern equally bars appellant's recovery for damages here, under section 17203.
7. The Consumers' Legal Remedies Act lists various proscribed unfair competition practices for which damages are recoverable. (Civ.Code, §§ 1770, 1780.) However, appellant makes no attempt to qualify his claim under these sections. Moreover, Sinclair's failure to state that he suffered any monetary injury would necessarily foreclose his personal stake under this theory.
8. The fact that this document was not attached to appellant's sixth amended complaint does not preclude our consideration of said document for the purpose of this review. (See Zappas v. King Williams Press, Inc. (1970) 10 Cal.App.3d 768, 775, 89 Cal.Rptr. 307.)
9. Although Sinclair's complaint alleges no contractual warrant existed as a basis for the charge, he does not dispell the possibility that a quasi-contractual setting was created, separate and apart from any initial agreement between some of the “wronged public” and Fotomat.
10. In addition to the abridged version of appellant's allegations set forth above, the following allegations are directed to Fotomat's culpability:“Defendant has informed plaintiff that the manager of defendant was informed of plaintiff's complaint during said complaint and refused to correct same, and plaintiff believes that defendant had advance knowledge of the unfitness of its employees and employed them with a conscious disregard of the rights of its customers, on the part of officers, directors, and managers, and that officers, directors, and managing agents have ratified the aforesaid malicious and oppressive acts and fore encouraged them, to increase the earnings of defendant․ Plaintiff further believes that in malicious and oppressive furtherance of the scheme to get away with the conversion's profitably exacting money from customers as it has succeeded to the tune of some $200,000.00 that said corporate personnel above mentioned oppressively threaten customers who seek their rights and fail to justly compensate said customers.”
11. Section 3336 of the Civil Code sets forth the civil measure of damages for conversion as follows:“The detriment caused by the wrongful conversion of personal property is presumed to be:“First—The value of the property at the time of the conversion with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and“Second—A fair compensation for the time and money properly expended in pursuit of the property.” (Emphasis added.)
12. We are not unmindful of the argument that by paying the charge, appellant would not necessarily have avoided the costs of later bringing a legal action. However, appellant's complaint leaves little doubt that said payment would have lessened any delay and mental distress incurred (should either be quantifiable). Moreover, due to the value involved here, appellant may have also mitigated his damages by more properly bringing this action in the justice or municipal court rather than the necessarily more costly superior court.
13. See Chartered Bank of London v. Chrysler Corp., supra, 115 Cal.App.3d at pp. 759–760, 171 Cal.Rptr. 748.
14. Assuming, arguendo, that any consent was withdrawn upon demand of the $1.00 charge, we would have to conclude as per the foregoing analysis that a situation tantamount to a non-gratuitous bailment existed. This in turn would equally appear to negate a claim of wrongfulness.
15. Uncertainty of this nature has been held to constitute grounds for a general demurrer where the uncertainty is ancillary to a pleader's failure to state facts essential to his cause of action. (Gonzalez v. State of California (1977) 68 Cal.App.3d 621, 634, 137 Cal.Rptr. 681.)
16. In point of fact, those people may have acquiesced to the charge, believing that their failure to claim their film after an unreasonable length of time, justified the additional charge.
17. Additionally, we note that Code of Civil Procedure section 382, which sanctions representative actions such as this one, specifies that representation may be permissible if, among other requirements, the parties are numerous, and it is impracticable to bring them all before the court. It is interesting to note that although Sinclair believes the class numbers, approximately 200,000, as indicated in his verified sixth amended complaint, in that same complaint, he concedes that despite his search for additional class members, to date he has found none.
18. Appellant concedes that “Faults of defendant are more properly to be corrected by the market place.” Nevertheless, he demonstrates his “true colors” with the concern that “they are taking business from businesses who are more sincere, and are thus a public menace because of their extensive advertising power to give false impressions merely because of size which a small competitor cannot meet.
19. Certainly poor business practices, exemplified by deficient and/or unimaginative management and less than competent employees, more often than not results in a reduction of consumer patronage which in turn results in an overall reduction of profits.
20. Albeit true that deceptive advertising would tend to indicate the employment of “poor business practices,” the obverse is not necessarily true. There is no standard which specifies how businesses must practice so that they are “successful and sincere.” It is unequivocal that every business is regulated by a panoply of legislation, yet we are unaware of any prescription of “success and sincerity” and that failing to achieve same warrants recovery. Needless to say, when a business fails to satisfy its patrons, as Fotomat has evidently done in the case of appellant, this does not establish “nonsuccess or insincerity” or that said business acted in contravention of civil law.
21. We reiterate that neither party presented us with a full and complete record on this point. We draw this conclusion from the briefs before us.
STEPHENS, Acting Presiding Justice.
ASHBY and HASTINGS, JJ., concur.