Zamora v. CVS Pharmacy CA2/5

Filed 2/5/21 Zamora v. CVS Pharmacy CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

OSIRIS ZAMORA et al., B299375

Plaintiffs and (Los Angeles County
Appellants, Super. Ct. No. BC661092)

v.

CVS PHARMACY, INC.,

Defendant and
Respondent.

APPEAL from an order and judgment of the Superior
Court of Los Angeles County, Daniel J. Buckley, Judge.
Reversed.
Kostas Law Firm, James S. Kostas, for Plaintiff and
Appellant.
Alston & Bird, Todd B. Benoff, Lisa L. Garcia, for
Defendant and Respondent.
 __________________________

A consumer purchased a product from a national retail
pharmacy that did not make the text of the manufacturer’s
written warranty available for review before purchase as
required under the federal Magnuson-Moss Warranty Act
(Magnuson-Moss) (15 U.S.C. § 2301 et seq.). The consumer
brought an action against the pharmacy seeking injunctive
relief under the Unfair Competition Law (UCL) (Bus. & Prof.
Code, § 17200 et seq.)1 based on the violation of federal
warranty law. In summary judgment proceedings, the
consumer declared that she did not know she had a right to
review the warranty before making her purchase, she would
have reviewed the warranty if the seller had made it
available as required by federal law, and she would not have
purchased the product after she learned the warranty was
limited to replacement parts. The trial court found her
statement that she did not know she could review the
warranty before purchase contradicted her deposition
testimony. The court granted summary judgment on the
ground that she did not suffer an economic injury, because
she made a warranty claim and the manufacturer elected to
replace the entire product, and therefore she lacked standing
under the UCL. On appeal, the consumer contends her
declaration was consistent with her deposition testimony,
and she suffered economic injury as a result of the unfair

1All further statutory references are to the Business
and Professions Code unless otherwise indicated.

2
competition, because she paid for a product that she would
not have purchased if the seller had complied with the
warranty law.
We conclude the consumer’s declaration did not
contradict any deposition testimony. Evidence that the
consumer paid for a product that she would not have
purchased if the seller had complied with federal warranty
law met the standing requirements under the UCL by
demonstrating an economic injury as a result of unfair
competition. A triable issue of fact exists as to whether the
seller’s failure to make the warranty available was a
substantial factor in causing the purchase of a product that
the consumer would not have purchased had she known the
warranty terms. Injunctive relief is available based on the
threat of future harm to the general public. Therefore, we
reverse.

FACTS AND PROCEDURAL BACKGROUND

Allegations of the Complaint

On May 12, 2017, Osiris Zamora filed a class action
lawsuit seeking injunctive relief for violation of the UCL.
Omitting the class allegations, she filed an amended
complaint on October 18, 2017, that sought injunctive relief
for violation of the UCL on behalf of herself and others
similarly situated as follows. CVS sells consumer goods at
retail outlets throughout California. Zamora purchased a

3
WaterPik Water Flosser Ultra at CVS in Palmdale,
California on December 12, 2016. The WaterPik package
stated the product came with a manufacturer’s “three-year
warranty.” Zamora believed the statement meant a full
product warranty requiring the manufacturer to repair
defects or replace the product at the manufacturer’s expense.
She could not read the warranty, which was inside the
sealed package, and she did not know she had the right to
request a copy of the warranty from CVS prior to purchase.
CVS did not post a copy of the limited warranty in
close proximity to the area where the device was displayed
for sale. The store also did not furnish copies of warranties
upon request prior to purchase and did not post signs in
prominent locations throughout its stores that were
reasonably calculated to elicit prospective purchasers’
attention advising them of their right to request a copy of
the manufacturer’s warranty prior to sale.
After making her purchase and opening the package,
Zamora read the warranty and learned it was limited to
replacement parts only. Customers were required to install
the replacement parts themselves or pay a third party to
have the parts installed. The limited warranty also required
the purchaser to provide the original sales receipt as a
condition of obtaining warranty services.
If Zamora had known of her right to request a copy of
the WaterPik warranty prior to sale, she would have read
the warranty before purchasing the product. Zamora lost

4
money, because she would not have purchased the WaterPik
had she known the actual terms of the warranty.
Zamora brought the action acting in the capacity of a
private attorney general to obtain relief for a large number
of California consumers who will benefit significantly should
the action be successful. She sought an injunction ordering
CVS to comply with its obligations to provide warranty
information prior to sale, as well as an award of attorney
fees and costs.

Motion for Summary Judgment and Supporting
Evidence

On July 31, 2018, CVS filed a motion for summary
judgment on the ground that Zamora did not have standing
under the UCL. CVS argued Zamora did not suffer economic
injury. Economic loss did not result simply because she
parted with money, and she received the benefit of her
bargain. Zamora also could not prove causation. The failure
to display the warranty did not cause her harm, because she
would not have read the warranty if it had been displayed.
Lastly, CVS argued that Zamora could not prove imminent
likelihood of future harm on behalf of herself or other CVS
customers. She testified in deposition that she would not
buy another WaterPik without asking to see the warranty,
so there is no likelihood that she would be injured by CVS
again in a similar way that could be redressed by injunctive
relief. She was required to establish her individual standing

5
to sue, even if she claimed to be suing on behalf of others,
but she could not identify any other customer who bought a
WaterPik under similar conditions.
CVS submitted portions of Zamora’s deposition
testimony in support of the motion. Zamora decided to buy
the device in order to better clean a crown that was
bothering her. She compared the products at CVS, but did
not talk to anyone about the warranty before she bought the
device. She saw on the box that it had a three-year
warranty. She believed all warranties were full warranties
that covered the whole product. She assumed WaterPik
would repair or replace the entire product, as opposed to just
a piece that was broken.
On the underside of the box, in very fine print, the
package stated “limited three-year warranty” and “see
instruction booklet for warranty details.” Zamora did not
see the bottom of the packaging where it stated the warranty
was limited. Zamora did not open the box to read the
instruction booklet with the warranty details before buying
the WaterPik, because it was sealed. She did not look online
or take any steps to read the text of the warranty, because
she relied on the statement on the box that it had a three-
year warranty and her assumption of what she believed a
full warranty was. She did not know that she could ask
someone to see the warranty before she bought the product.
She bought the WaterPik and opened the box at home.
The WaterPik manual was inside the box. She did not read
the warranty information until the machine stopped working

6
two or three months later. She was surprised the manual
said the warranty was limited. Counsel for CVS asked,
“When you first read the [WaterPik] warranty, did you think
that the [WaterPik] was worth less than full price because of
that warranty?” Zamora answered, “No.” She called
WaterPik, explained the problem with the device, and made
a warranty claim. WaterPik replaced the entire unit, which
was the recourse that Zamora expected and thought she
should receive under a warranty. She has had the new unit
for several months and it works fine.
Counsel for CVS asked, “Before December of 2016,
what other products had you read the warranty for before
buying?” Zamora answered, “I don’t remember.” Counsel
asked, “As you sit here today, can you think of any product
where you’ve ever done that?” She answered, “I’m thinking.
I can’t remember, sir.”
She spoke about the issue with a customer at her job,
who she knew was an attorney, and learned that she has a
right to ask to see a copy of the warranty before buying the
product. She is now aware that she may ask to see a copy of
the warranty before buying the product; there is no
possibility that she would buy another WaterPik from CVS
without asking to see a copy of the warranty first. Zamora
could not identify any other CVS customer who read “three-
year warranty” on the WaterPik box and interpreted it to
mean a full warranty or was upset about WaterPik’s
warranty. She wants CVS to make warranty information
available to customers before they purchase items.

7
 CVS also submitted photographs of the WaterPik’s
packaging. The front of the package listed features
including “Three Year Warranty.” The back of the package
had no information about the warranty. On the bottom of
the box, in a very small font size, it states, “Limited three-
year warranty. [¶] See instruction booklet for warranty
details.”
CVS submitted the instruction manual as well. The
warranty states in pertinent part, “Water Pik, Inc. will
replace at its discretion any part of the product, which in its
opinion is defective, provided the product has not been
abused, misused, altered or damaged after purchase . . . .
Installation is the responsibility of the consumer and is not
covered by the warranty.”
CVS also submitted the declaration of a district
manager, who stated that there were at least half a dozen
signs at the front counter, the pharmacy counter, and the
front door, among other locations. The signs included
information about coupon policies, return policies, check
acceptance, and prepaid gift card notices.
Although the evidence in support of the motion
included Zamora’s statement that after reading the
warranty, she did not think the WaterPik was worth less
than full price because of the warranty, CVS did not refer to
this particular statement in the motion or in the separate
statement of facts.

8
Opposition to Motion for Summary Judgment and
Supporting Evidence

Zamora filed an opposition to CVS’s motion for
summary judgment on the ground that she has standing,
because (1) at the time of purchase she was unaware of her
right to ask CVS for a copy of the warranty before purchase;
(2) had she known of her right to inspect the warranty prior
to purchase, she would have done so; and (3) she would not
have purchased the WaterPik had she known the terms of
the warranty. The money lost was the amount of the
purchase price, which she would not have spent if she had
known the terms of the warranty.
Zamora submitted portions of her deposition testimony
in support of the opposition. She stated that she had owned
a product that did not have what she considered to be a full
warranty.
Zamora submitted her own declaration in support of
the opposition. When she purchased the WaterPik, she did
not know that she had the right to obtain a copy of the
product warranty from CVS before she made her purchase.
The warranty was not displayed with the product. She did
not see any signs advising customers that the
manufacturer’s warranty was available for inspection prior
to purchase. If she had known of her right to obtain a copy
of the WaterPik warranty prior to purchase, she would have
asked CVS for a copy of the warranty and she would have
read it. Had she known the WaterPik warranty simply

9
provided for parts replacement and she would be responsible
for installing replacement parts, she would not have
purchased the device.

Reply, Evidentiary Objections, and Trial Court Ruling

CVS filed a reply arguing that Zamora could not create
a triable issue of fact by submitting a declaration that
contradicted her deposition testimony. CVS characterized
her testimony that she did not remember reading a warranty
before buying any other product to mean that she had never
read a warranty before in her life. CVS argued the
statement in her declaration that she would have read the
warranty if it had been made available before purchase
contradicted her deposition testimony and must be
disregarded.
In addition, CVS argued Zamora’s theory that she
suffered economic injury by paying the purchase price did
not apply in cases without allegations of mislabeling or
fraud. In the absence of fraud, Zamora did not suffer any
harm because she received the benefit of the bargain of her
transaction with CVS. CVS reiterated that Zamora lacks
individual standing because she faces no likelihood of future
harm, and this also precludes her from bringing her case on
behalf of a class.
CVS filed evidentiary objections as well. CVS objected
to six statements in Zamora’s declaration. Statement 1 was,
“At the time I purchased the WaterPik at a Palmdale CVS

10
store, I did not know I had the right to obtain a copy of the
product’s warranty from CVS before I made my purchase.”
CVS argued that the statement was barred under D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico),
because she could not offer a declaration that simply
contradicted her deposition testimony. CVS characterized
the deposition testimony as follows: Zamora admitted that
she had never read a warranty before in her life, did not read
the warranty when she got home and opened the box, did not
recall reading any presale signs in other stores and did not
pay attention to any signs in the CVS, did not read the
information on the bottom of the box that the warranty was
limited, and took no steps to read the warranty before
buying the device because she assumed it was a full
warranty. CVS also objected that the statement would
consume undue time, because it contradicted sworn
testimony. Lastly, CVS objected to the statement on the
ground that Zamora’s knowledge of the presale rule was not
relevant to the issue of standing. CVS had several objections
to Zamora’s other evidence as well.
A hearing was held on April 23, 2019. The court stated
Zamora’s declaration was inconsistent with her deposition
testimony. Zamora argued that her declaration did not
conflict with anything that she said at her deposition,
because she was not asked any questions that pertained to
her theory of standing. CVS argued Zamora admitted in
deposition that she had never read a warranty, did not try to
read the warranty because she assumed all warranties were

11
full warranties, and did not read the warranty for the
WaterPik until the product malfunctioned. The trial court
took the matter under submission.
The following day, the trial court ruled on the
evidentiary objections and the motion for summary
judgment. The court sustained CVS’s objection to statement
1 from Zamora’s declaration, and overruled CVS’s objections
to the other statements in Zamora’s declaration and to
Zamora’s other evidence. The court granted the motion for
summary judgment. The court found CVS presented
undisputed evidence that Zamora purchased the device
under the belief that it was covered by a full warranty and
she received everything that she expected under that
warranty when WaterPik sent her a replacement unit for
free. Because she received the expected benefit of her
bargain, she suffered no economic loss. Zamora’s declaration
did not create a triable issue of fact with respect to standing.
The trial court entered judgment in favor of CVS on
May 10, 2019. Zamora filed a timely notice of appeal from
the judgment.

DISCUSSION

Standard of Review

“Summary judgment is appropriate when all of the
papers submitted show there are no triable issues of any
material fact and the moving party is entitled to a judgment

12
as a matter of law. ([Code Civ. Proc.,] § 437c, subd. (c);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
[(Aguilar)].)” (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223
Cal.App.4th 133, 136 (Ahn).) “A defendant moving for
summary judgment has the burden of showing the plaintiff’s
causes of action have no merit. (Aguilar[,] supra, 25 Cal.4th
at pp. 849–850.) A defendant meets this burden if it makes
a prima facie showing that one or more elements of each
cause of action cannot be established or is subject to a
complete defense. (Id. at p. 849.) If the defendant makes
this showing, the burden shifts to the plaintiff to produce
evidence demonstrating the existence of a triable issue of
material fact. (Id. at pp. 849–850; [Code Civ. Proc.,] § 437c,
subd. (p)(2).)” (Ahn, supra, 223 Cal.App.4th at p. 136.)
We review an order granting summary judgment de
novo. (Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 181.) “The evidence of the moving party is
strictly construed and that of the opponent is liberally
construed, and any doubts as to the propriety of granting the
motion are to be resolved in favor of the party opposing the
motion.” (Campbell v. Scripps Bank (2000) 78 Cal.App.4th
1328, 1333, fn. 2.) “‘[S]ummary judgment cannot be granted
when the facts are susceptible to more than one reasonable
inference . . . .’ [Citation.]” (Husman v. Toyota Motor Credit
Corp. (2017) 12 Cal.App.5th 1168, 1180 (Husman).)
“‘In determining whether a triable issue was raised or
dispelled, we must disregard any evidence to which a sound
objection was made in the trial court, but must consider any

13
evidence to which no objection, or an unsound objection, was
made. (See Reid [v. Google, Inc. (2010)] 50 Cal.4th 512, 534;
. . . [Code Civ. Proc.,] § 437c, subds. (b)(5), (c), (d).) Such
evidentiary questions, however, are subject to the
overarching principle that the proponent’s submissions are
scrutinized strictly, while the opponent’s are viewed
liberally.’ (McCaskey v. California State Automobile Assn.
(2010) 189 Cal.App.4th 947, 957.)” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 852 (Serri).)

Exclusion of Evidence

Zamora contends the trial court erred by excluding the
statement in her declaration that she was unaware of her
right to obtain a copy of the product warranty before she
made her purchase. CVS objected to the statement on the
grounds that it contradicted her deposition testimony and
was not relevant. We agree with Zamora that the statement
should not have been excluded.2

2 In its respondent’s brief on appeal, CVS asserts the
trial court sustained objections to six statements in Zamora’s
declaration. This is incorrect. The minute order expressly
stated: “Defendant’s Objections to the Declaration of Osiris
Zamora No. 1 is SUSTAINED; all other objections to that
document are OVERRULED.” Even if the trial court had
sustained CVS’s objections to multiple statements, however,
our conclusion would be the same. The statements made in
the declaration did not contradict Zamora’s deposition
testimony and should not have been excluded on this basis.

14
 “[T]he weight of California appellate court authority
holds that a trial court’s evidentiary rulings in summary
judgment proceedings are reviewed for an abuse of discretion
(Miranda v. Bomel Construction Co., Inc. (2010) 187
Cal.App.4th 1326, 1335), but the California Supreme Court
has yet to determine ‘generally whether a trial court’s
rulings on evidentiary objections based on papers alone in
summary judgment proceedings are reviewed for abuse of
discretion or are reviewed de novo’ (Reid v. Google, Inc.,
supra, 50 Cal.4th at p. 535).” (Ahn, supra, 223 Cal.App.4th
at pp. 143–144.) In this case, under either standard of
review, the statement was erroneously excluded.
When a party makes a clear and unequivocal
admission in deposition testimony, contradictory statements
in a subsequent declaration in opposition to summary
judgment may be disregarded as irrelevant, inadmissible or
evasive. (Ahn, supra, 223 Cal.App.4th at p. 144; Scalf v. D.
B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521
(Scalf).) “As the law recognizes in other contexts (see Evid.
Code, §§ 1220–1230) admissions against interest have a very
high credibility value. This is especially true when . . . the
admission is obtained . . . in the context of an established
pretrial procedure whose purpose is to elicit facts.” (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)
There is simply no substantial evidence of a triable issue of
fact. (Id. at p. 21.)
Admissions must be examined in the context of the
entire record however. (Ahn, supra, 223 Cal.App.4th at

15
p. 144.) “This is because the record may contain evidence
that credibly contradicts or explains what might appear to
be clear and unequivocal admissions, if the admissions are
viewed in isolation and without reference to the other
evidence. [Citation.]” (Ibid., italics omitted.) “Courts have
consistently refused to apply the D’Amico rule to exclude
evidence adduced in opposition to a summary judgment
motion when either evidence adduced on the motion credibly
explains or contradicts a party’s earlier admissions.” (Id. at
pp. 144–145.)
“While the D’Amico rule permits a trial court to
disregard declarations by a party which contradict his or her
own discovery responses (absent a reasonable explanation
for the discrepancy), it does not countenance ignoring other
credible evidence that contradicts or explains that party’s
answers or otherwise demonstrates there are genuine issues
of factual dispute.” (Scalf, supra, 128 Cal.App.4th at
pp. 1524–1525.)
In this case, Zamora declared that she did not know
she had the right to obtain a copy of the product’s warranty
from CVS before making her purchase. No deposition
testimony cited by CVS contradicted this statement. In fact,
Zamora clearly testified in her deposition that in December
2016, she did not know she could ask to see a warranty
before buying a product. Her declaration was entirely
consistent with her deposition testimony.
CVS argued Zamora testified that she had never read a
warranty before in her life, which was contradictory of her

16
declaration. In fact, Zamora testified that before December
2016, she did not remember having read a warranty before
buying a product. She did not testify that she had never
read a warranty before purchasing a product, but simply
that she did not remember one way or the other. Her
testimony was consistent with her declaration that she was
not aware she had the right to review the warranty before
making a purchase. CVS did not ask, and Zamora did not
testify, about whether she had read a warranty before
purchasing a product when the warranty was made
available to her before purchase. Zamora’s inability to recall
whether she had read a warranty before making a purchase
was consistent with, not contradictory of, her declaration.
Zamora’s deposition testimony that she did not read
the WaterPik warranty when she got home and opened the
box also did not contradict her declaration that she did not
know she could review the warranty before making her
purchase and would have requested to read the warranty if
she had known that she could. Her testimony showed that
she gathered information to make an informed purchase by
comparing products on the shelf in the store. After the
purchase, when she was home, her purchase decision was
already complete. The fact that she did not review the
warranty after completing the purchase may go to the
weight of the evidence, but does not contradict her
declaration or make it not credible that she would have
reviewed the warranty before making a purchase decision.

17
 Zamora testified in deposition that she has made
purchases from other major retailers, none of which had a
sign saying that she could ask to see a warranty before
buying a product. Her deposition testimony is consistent
with, not contradictory of, her declaration that she did not
know she had the right to see the warranty before purchase.
CVS did not establish, through Zamora’s deposition or any
other evidence, that other stores where she has made
purchases have signs posted about warranty rights which
she read or failed to read.
Zamora’s testimony that she did recall seeing signs
posted in CVS on other topics did not contradict her
declaration or make it less credible, because CVS did not
submit evidence to show there were any signs posted in the
store that applied to Zamora or her purchase. If Zamora
failed to notice signs that affected her or her purchase, it
would affect the weight of the evidence, but would not
contradict her declaration that she would have noticed and
responded to a sign about warranties.
The fact that Zamora read the clear print on the front
of the box promoting the three year warranty, but did not
read the very fine print underneath the box which revealed
that the warranty was limited, also does not contradict her
declaration that she did not know she could review the
warranty before making her purchase and would have
requested to review it had she known. Incomplete
information and misleading packaging about product

18
warranties is exactly the type of confusion that the warranty
law was designed to mitigate.
Zamora did not make a clear, unequivocal admission in
her deposition that was contradicted in her declaration. The
portions of her testimony that CVS argued were
contradictory relate to the weight of the evidence, but none
of the testimony contradicts the statements in her
declaration or makes them not credible. If conflicting
inferences can reasonably be drawn from the evidence, a
triable issue of fact exists. (Savaikie v. Kaiser Foundation
Hospitals (2020) 52 Cal.App.5th 223, 229–230.)
In addition, Zamora’s statement in her declaration was
clearly relevant to the issue of standing. If Zamora had been
aware of her right to request the warranty before making a
purchase, CVS’s violation of the federal warranty
requirements by failing to notify her of that right would not
have been a substantial factor in causing her injury. In light
of the requirement in summary judgment proceedings to
construe the evidence presented by CVS strictly and the
evidence presented by Zamora liberally, we conclude the
trial court abused its discretion in sustaining CVS’s objection
to Zamora’s declaration.

UCL Claim

Zamora contends that she established standing under
the UCL, because her evidence showed she suffered an
economic injury as a result of unfair competition.

19
Specifically, she lost money, because she paid for a product
that she would not have purchased if CVS had made the
warranty available for review as required by law. We agree
that she has submitted evidence of an economic injury.

A. Presale Rule in Federal Warranty Law

“Magnuson-Moss governs warranties for consumer
products distributed in interstate commerce. It requires
disclosures in connection with written warranties, regulates
the substantive content of warranties, and establishes a
federal cause of action for breach of a written or an implied
warranty (15 U.S.C. § 2310(d)), among other provisions.”
(Orichian v. BMW of North America, LLC (2014) 226
Cal.App.4th 1322, 1330.) Magnuson-Moss directs the
Federal Trade Commission (FTC) to “prescribe rules
requiring that the terms of any written warranty on a
consumer product be made available to the consumer (or
prospective consumer) prior to the sale of the product to
him.” (15 U.S.C. § 2302(b)(1)(A).)
Under this authority, the FTC promulgated regulations
requiring the seller of a consumer product with a written
warranty that costs more than $15 to make the text of the
warranty available to prospective purchasers by either (1)
displaying it in close proximity to the product, or (2)
furnishing it upon request prior to sale and placing signs
reasonably calculated to draw a prospective buyer’s
attention in prominent locations in the store advising of the

20
availability of warranties upon request. (16 C.F.R. § 702.3,
subd. (a) (2021).)3
In introducing the original bill to the Senate, Senator
Warren Magnuson described the need for requiring
disclosure of warranty provisions as follows in part: “‘. . .
[W]arranties have for many years confused, misled, and
frequently angered American consumers . . . . Consumer
anger is expected when purchasers of consumer products
discover that their warranty may cover a 25-cent part but
not the $100 labor charge or that there is full coverage on a

3 16 C.F.R. section 702.3, subdivision (a), states in full:
“The following requirements apply to consumer products
actually costing the consumer more than $15.00: [¶] (a)
Duties of seller. Except as provided in paragraphs (c)
through (d) of this section [related to catalog, mail order, and
door-to-door sales], the seller of a consumer product with a
written warranty shall make a text of the warranty readily
available for examination by the prospective buyer by: [¶]
(1) Displaying it in close proximity to the warranted product
(including through electronic or other means, if the
warrantor has elected the option described in paragraph
(b)(2) of this section [to provide warranty terms on the
warrantor’s website]), or [¶] (2) Furnishing it upon request
prior to sale (including through electronic or other means, if
the warrantor has elected the option described in paragraph
(b)(2) of this section [to provide the warranty terms on the
warrantor’s website]) and placing signs reasonably
calculated to elicit the prospective buyer’s attention in
prominent locations in the store or department advising such
prospective buyers of the availability of warranties upon
request.”

21
piano so long as it is shipped at the purchaser’s expense to
the factory . . . [¶] . . . [T]he bill is designed to promote
understanding. Far too frequently, there is a paucity of
information supplied to the consumer about what in fact is
offered him in that piece of paper proudly labeled
“warranty.”’” (40 Fed.Reg. 60168 (Dec. 31, 1975).)

B. UCL Statutory Scheme

“Unfair competition” under the UCL includes “any
unlawful, unfair or fraudulent business act or practice.”
(§ 17200.) The scope of the UCL is broad, covering anything
that can be considered a business practice but is prohibited
by law. (Cel-Tech Communications, Inc. v. Los Angeles
Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 (Cel-
Tech).) “Its purpose ‘is to protect both consumers and
competitors by promoting fair competition in commercial
markets for goods and services.’ [Citations.]” (Kwikset Corp.
v. Superior Court (2011) 51 Cal.4th 310, 320 (Kwikset).)
Because it is written in the disjunctive, section 17200
encompasses three forms of unfair competition—acts or
practices which are unlawful, or unfair, or fraudulent. (Cel–
Tech, supra, 20 Cal.4th at p. 180.) “The UCL’s ‘unlawful’
prong ‘borrows violations of other laws . . . and makes those
unlawful practices actionable under the UCL.’ [Citation.]
‘“[V]irtually any law or regulation—federal or state,
statutory or common law—can serve as [a] predicate for [an]

22
. . . ‘unlawful’ [prong] violation.”’ [Citation.]” (Candelore v.
Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1155.)

C. Standing under the UCL

Prior to 2004, “any person acting for the interests of
itself, its members or the general public” had standing to
bring a UCL action. (Former § 17204, as amended by Stats.
1993, ch. 926, § 2, p. 5198; Hansen v. Newegg.com Americas,
Inc. (2018) 25 Cal.App.5th 714, 723 (Hansen).) Proposition
64 amended section 17204 to limit private standing to “a
person who has suffered injury in fact and has lost money or
property as a result of the unfair competition.” (§ 17204, as
amended by Prop. 64, § 3, as approved by voters, Gen. Elec.
(Nov. 2, 2004).)
The intent of Proposition 64 was to prohibit private
attorneys from filing lawsuits “on behalf of ‘clients who [had]
not used the defendant’s product or service, viewed the
defendant’s advertising, or had any other business dealing
with the defendant’ ([Prop. 64 § 1,] subd. (b)(3)) and had not
‘been injured in fact’ (id., subd. (b)(2)) as a way of ‘generating
attorney’s fees without creating a corresponding public
benefit’ (id., subd. (b)(1)). In short, voters focused on curbing
shakedown suits by those who had never engaged in any
transactions with would-be defendants. [Citation.]”
(Kwikset, supra, 51 Cal.4th at p. 335, fn. 21.) “While the
voters clearly intended to restrict UCL standing, they just as
plainly preserved standing for those who had had business

23
dealings with a defendant and had lost money or property as
a result of the defendant’s unfair business practices. (Prop.
64, § 1, subds. (b), (d); see § 17204.)” (Clayworth v. Pfizer,
Inc. (2010) 49 Cal.4th 758, 788.)
To determine whether a plaintiff has standing to bring
a private UCL action, the plaintiff must “(1) establish a loss
or deprivation of money or property sufficient to qualify as
injury in fact, i.e., economic injury, and (2) show that that
economic injury was the result of, i.e., caused by, the unfair
business practice or false advertising that is the gravamen of
the claim.” (Kwikset, supra, 51 Cal.4th at p. 322.)4

4 As used in section 17204, “injury in fact” is a legal
term of art that incorporates the established meaning under
federal law. (Kwikset, supra, 51 Cal.4th at p. 322.)
Economic injury, in the form of lost money or property, is a
classic type of injury in fact (id. at pp. 323–324), and a
negligible identifiable injury is sufficient for federal standing
purposes (id. at pp. 324–325). The standing requirements of
section 17204 are stricter than federal standing
requirements, since the plaintiff’s injury in fact must involve
lost money or property. (Id. at pp. 323–324.) “[A] party who
has lost money or property generally has suffered injury in
fact.” (Id. at p. 322.) The question of whether the plaintiff
has shown injury in fact is incorporated into the
determination of whether the plaintiff has shown an
economic injury sufficient to constitute an injury in fact. (Id.
at p. 323.) “If a party has alleged or proven a personal,
individualized loss of money or property in any nontrivial
amount, he or she has also alleged or proven injury in fact.
Because the lost money or property requirement is more
difficult to satisfy than that of injury in fact, for courts to

24
 D. Relevant Case Law

In Kwikset, supra, 51 Cal.4th 317, the plaintiffs
brought an action under the UCL alleging defendant
Kwikset falsely marketed locksets as “Made in U.S.A.”
(Kwikset, supra, 51 Cal.4th at p. 317.) The claim was alleged
under the unlawful prong of the UCL, but the predicate
statutory violations concerned misrepresentation and
deception. (Id. at p. 327, fn. 9.) When a UCL claim is based
on a fraud theory, the type of causation required to
demonstrate standing is “‘actual reliance on the allegedly
deceptive or misleading statements, in accordance with well-
settled principles regarding the element of reliance in
ordinary fraud actions’ ([In re Tobacco II Cases (2009) 46
Cal.4th 298,] 306).” (Kwikset, supra, 51 Cal.4th at pp. 326–
327.) The plaintiffs did not allege the locksets that they
received were overpriced or defective, but alleged that they
relied on the false representation that the locksets were
made in the United States and would not have purchased
them if the place of origin had not been misrepresented. (Id.
at pp. 319–320.) The California Supreme Court held that

first consider whether lost money or property has been
sufficiently alleged or proven will often make sense. If it has
not been, standing is absent and the inquiry is complete. If
it has been, the same allegations or proof that suffice to
establish economic injury will generally show injury in fact
as well (ibid.), and thus it will again often be the case that
no further inquiry is needed.” (Id. at p. 325.)

25
“plaintiffs who can truthfully allege they were deceived by a
product’s label into spending money to purchase the product,
and would not have purchased it otherwise, have ‘lost money
or property’ within the meaning of Proposition 64 and have
standing to sue.” (Id. at p. 317.)
The Kwikset court explained, “For each consumer who
relies on the truth and accuracy of a label and is deceived by
misrepresentations into making a purchase, the economic
harm is the same: the consumer has purchased a product
that he or she paid more for than he or she otherwise might
have been willing to pay if the product had been labeled
accurately. This economic harm—the loss of real dollars
from a consumer’s pocket—is the same whether or not a
court might objectively view the products as functionally
equivalent.” (Kwikset, supra, 51 Cal.4th at p. 329.)
In a UCL case based on a fraud theory, an allegation
that the party would not have bought the product but for the
misrepresentation is sufficient to allege causation. (Kwikset,
supra, 51 Cal.4th at p. 330.) “From the original purchasing
decision we know the consumer valued the product as
labeled more than the money he or she parted with; from the
complaint’s allegations we know the consumer valued the
money he or she parted with more than the product as it
actually is; and from the combination we know that because
of the misrepresentation the consumer (allegedly) was made
to part with more money than he or she otherwise would
have been willing to expend, i.e., that the consumer paid
more than he or she actually valued the product. That

26
increment, the extra money paid, is economic injury and
affords the consumer standing to sue.” (Ibid.)
The defendant argued the plaintiffs had no economic
injury, and therefore lacked standing, because they received
the benefit of their bargains. (Kwikset, supra, 51 Cal.4th at
p. 332.) Without deciding whether a party who actually
receives the benefit of his or her bargain may lack standing
in another case, the Supreme Court found the plaintiffs in
Kwikset did not receive the benefit of their bargain, because
the misrepresentation about the country of origin may have
been a material part of the bargain. (Ibid.) The plaintiffs
bargained for products made in the United States, but
received products that were not. (Ibid.) A
misrepresentation is material if “‘“a reasonable man would
attach importance to its existence or nonexistence in
determining his choice of action in the transaction in
question” . . . .’ [Citations.].” (Id. at pp. 332–333.) In
regulating the marketing of merchandise as made in the
United States, the Legislature made clear that the country
of origin is a material consideration to reasonable people.
(Id. at p. 333.) The materiality of a misrepresentation is
generally a question of fact, which was not appropriate to
resolve in that case on demurrer. (Ibid.)
In contrast, in Demeter v. Taxi Computer Services, Inc.
(2018) 21 Cal.App.5th 903 (Demeter), plaintiff Michael
Demeter purchased a membership to access the defendant’s
talent listing services. Demeter filed a class action lawsuit,
including a UCL claim, alleging that the defendant failed to

27
obtain a bond or provide a written contract satisfying the
requirements of California’s talent services law. (Id. at
pp. 906–907.) The defendant brought a motion for summary
judgment on the ground that the plaintiff could not show he
had suffered an economic injury; Demeter was unaware of
the bond requirement, did not rely on the bond requirement
when he purchased the membership, and he received the
services that he expected. (Id. at p. 908.) Demeter argued
that he would not have paid the membership fee if he had
known the company was not complying with legal
requirements. (Id. at p. 909.)
This appellate court found that although Demeter
showed he spent money to purchase the membership, the
evidence did not establish that he suffered an economic
injury as a result of the unlawful practices alleged.
(Demeter, supra, 21 Cal.App.5th at p. 915.) There was no
evidence that the failure to include certain contract terms
required by the talent services law had caused him to pay for
the membership. (Ibid.) Because the plaintiff did not know
about the bond requirement when he purchased the
membership and did not expect the defendant to have posted
a bond, he could not establish the unlawful practices had
caused him to suffer an economic injury. (Ibid.)

E. Loss of Money or Property

“‘There are innumerable ways in which economic injury
from unfair competition may be shown. A plaintiff may (1)

28
surrender in a transaction more, or acquire in a transaction
less, than he or she otherwise would have; (2) have a present
or future property interest diminished; (3) be deprived of
money or property to which he or she has a cognizable claim;
or (4) be required to enter into a transaction, costing money
or property, that would otherwise have been unnecessary.
[Citation.]’ (Kwikset[], supra, 51 Cal.4th at p. 323.) The
foregoing list is not exhaustive and the notion of ‘lost money’
under the UCL is not limited. [(Ibid.)] Moreover, ‘the
quantum of lost money or property necessary to show
standing is only so much as would suffice to establish injury
in fact’ and ‘it suffices . . . to “‘allege[] some specific,
“identifiable trifle” of injury.’” [Citations.]’ (Id. at pp. 324–
325, fn. omitted.) ‘“‘The basic idea . . . is that an identifiable
trifle is enough for standing to fight out a question of
principle; the trifle is the basis for standing and the principle
supplies the motivation.’” [Citations.]’ (Id. at p. 325, fn. 7.)”
(Law Offices of Mathew Higbee v. Expungement Assistance
Services (2013) 214 Cal.App.4th 544, 561.)
In this case, Zamora declared that she would not have
purchased the WaterPik product if she had known the
warranty featured on the front of the package was limited to
replacement parts. Her evidence, if found to be credible by a
trier of fact, establishes a loss of money sufficient to
constitute injury in fact. She believed that she was
purchasing a product with a full replacement warranty,
when in fact, the product she got had a limited warranty. A
consumer who paid money to buy a product from the

29
defendant and subsequently made a warranty claim to the
manufacturer is not the type of plaintiff that the UCL
standing requirements were designed to bar, who did not
view the defendant’s advertising or have business dealings
with the defendant.
CVS argued that Zamora did not suffer an economic
injury, because she received the benefit of her bargain;
WaterPik provided a full replacement for her product when
she made a warranty claim. This argument is a red herring,
because Zamora’s loss did not depend on whether she made a
warranty claim or the outcome of the claim. Even if Zamora
had not made any warranty claim, she lost money spent on a
product that she would not have purchased if she had been
given an opportunity to read the warranty terms before
making her purchase and discovered the warranty was
limited. Although WaterPik chose to provide a full
replacement when she made a claim, there is no evidence
that WaterPik changed its warranty terms or that the
replacement product came with a full warranty. Zamora
still received a product with a limited warranty, and if she
had made a second claim, WaterPik could elect to provide
parts only.
The amount that Zamora paid for a product that she
would not have purchased if she had known the limited
warranty terms was an economic injury sufficient to
establish injury in fact.

30
 E. Causation

“In order to pursue a UCL claim, the plaintiff must
show that the practices that it characterizes as unlawful
caused it to suffer an actual economic injury.” (Two Jinn,
Inc. v. Government Payment Service, Inc. (2015) 233
Cal.App.4th 1321, 1333 (Two Jinn).) “When a UCL action is
based on an unlawful business practice, as here, a party may
not premise its standing to sue upon injury caused by a
defendant’s lawful activity simply because the lawful activity
has some connection to an unlawful practice that does not
otherwise affect the party. In short, there must be a causal
connection between the harm suffered and the unlawful
business activity. That causal connection is broken when a
complaining party would suffer the same harm whether or
not a defendant complied with the law.” (Daro v. Superior
Court (2007) 151 Cal.App.4th 1079, 1099, fn. omitted
(Daro).)
Causation is typically a question of fact that cannot be
resolved in summary judgment proceedings. (Lawrence v.
La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th
11, 33 (Lawrence).) “‘The issue of causation may be decided
as a question of law only if, under undisputed facts, there is
no room for a reasonable difference of opinion.’ (Nichols v.
Keller (1993) 15 Cal.App.4th 1672, 1687.)” (Lawrence, supra,
231 Cal.App.4th at p. 33.) “A number of courts have found,
as a matter of law, that a defendant is not liable for an
injury only distantly connected to defendant’s conduct.”

31
(Novak v. Continental Tire North America (2018) 22
Cal.App.5th 189, 198.)
The evidence in this case showed Zamora read the
information on the front of the WaterPik package that the
product featured a three-year warranty. She believed the
warranty to be a full replacement warranty, and did not
notice very fine print on the underside of the box stating that
the warranty was limited. The text of the warranty was not
posted in proximity to the product, nor were there signs that
the warranty was available for her to review before
purchasing the product. She declared that she would have
seen a sign about warranties, requested to read the product
warranty, and not purchased the product when she learned
the warranty was limited to replacement parts. We cannot
say the causation chain in this case is too speculative or
remote as a matter of law, when the very purpose of the
federal warranty law is to provide information about
warranty terms to consumers prior to making purchases,
and the harm it seeks to avoid is surprising consumers with
unfavorable warranty terms and limitations after the
purchases are complete. A triable issue of fact exists as to
whether CVS’s failure to comply with federal law by making
warranties available for review was a substantial factor in
causing Zamora to purchase a product that she otherwise
would not have bought.

32
Injunctive Relief

CVS contends Zamora cannot obtain injunctive relief
under the UCL, because there is no likelihood of harm
against her in the future, since she is aware now of her right
to review a written warranty before making a purchase.
This analysis is incorrect.
Remedies under the UCL are generally limited to
injunctive relief and restitution. (In re Tobacco II Cases,
supra, 46 Cal.4th at p. 312.) “Injunctions are ‘the primary
form of relief available under the UCL to protect consumers
from unfair business practices,’ while restitution is a type of
‘ancillary relief.’ [Citation.]” (Kwikset, supra, 51 Cal.4th at
p. 337.) “‘[T]he equitable remedies of the UCL are subject to
the broad discretion of the trial court. [Citation.] The UCL
does not require “restitutionary or injunctive relief when an
unfair business practice has been shown. Rather, [section
17203] provides that the court ‘may make such orders or
judgments . . . as may be necessary to prevent the use or
employment . . . of any practice which constitutes unfair
competition . . . or as may be necessary to restore . . . money
or property.’”’ (Zhang[ v. Superior Court (2013)] 57 Cal.4th
[364,] 371.)” (In re Tobacco Cases II (2015) 240 Cal.App.4th
779, 790.)
The remedies available for a violation of the UCL
include “public injunctive relief, i.e., injunctive relief that
has the primary purpose and effect of prohibiting unlawful
acts that threaten future injury to the general public. (Cruz

33
v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303,
315–316 (Cruz); Broughton v. Cigna Healthplans (1999) 21
Cal.4th 1066, 1077 (Broughton).)” (McGill v. Citibank, N.A.
(2017) 2 Cal.5th 945, 951 (McGill).)
Proposition 64’s amendment of the standing
requirements for an action under the UCL “do not preclude a
private individual who has ‘suffered injury in fact and has
lost money or property as a result of’ a violation of the UCL
or the false advertising law (Bus. & Prof. Code, §§ 17204,
17535)—and who therefore has standing to file a private
action—from requesting public injunctive relief in connection
with that action. A person who meets these requirements is
‘fil[ing]’ the ‘lawsuit[]’ or ‘action[]’ on his or her own behalf,
not ‘on behalf of the general public.’ (Prop. 64, § 1, subds.
(b)(4)), (f); see [Historical and Statutory Notes, 4D West’s
Ann. Bus. & Prof. Code (2008 ed.) foll. § 17203,] p. 409.)
This remains true even if the person seeks, as one of the
requested remedies, injunctive relief ‘the primary purpose
and effect of’ which is ‘to prohibit and enjoin conduct that is
injurious to the general public.’ (Broughton, supra, 21
Cal.4th at p. 1077.)” (McGill, supra, 2 Cal.5th at p. 959.)
Moreover, a plaintiff bringing a private action under
the UCL does not have to comply with the statutory
requirement for class actions in order to seek an injunction
against future wrongful business practices that will injure
the public. (McGill, supra, 2 Cal.5th at p. 960.) “Indeed,
imposing this requirement would largely eliminate the
ability of a private plaintiff to pursue such relief, because

34
class certification requires ‘the existence of both an
ascertainable class and a well-defined community of interest
among the class members’ (Washington Mutual Bank v.
Superior Court (2001) 24 Cal.4th 906, 913), and ‘“the general
public . . .” . . . fails to meet’ this requirement (Czap v. Credit
Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 6).”
(McGill, supra, 2 Cal.5th at p. 960.)
The trial court’s broad equitable authority to enjoin
conduct that violates the UCL is not unlimited. (In re
Tobacco Cases II, supra, 240 Cal.App.4th at p. 802.) In order
to grant injunctive relief under the UCL, “there must be a
threat that the wrongful conduct will continue. ‘Injunctive
relief will be denied if, at the time of the order of judgment,
there is no reasonable probability that the past acts
complained of will recur, i.e., where the defendant
voluntarily discontinues the wrongful conduct.’ [Citations.]”
(Colgan v. Leatherman Tool Group, Inc. (2006) 135
Cal.App.4th 663, 702.)
In this case, Zamora sought an injunction ordering
CVS to comply with federal regulations to provide warranty
information prior to sale in order to prevent future injury to
the general public. As discussed above, triable issues of fact
exist as to standing. If the trier of fact determines that
Zamora established an economic injury as a result of CVS’s
failure to comply with the federal warranty laws, then she
has standing to maintain her action seeking an injunction on
behalf of the general public. There is no evidence that CVS
is complying with the warranty requirements, so the threat

35
remains that the wrongful conduct will continue and
members of the general public will not be notified of their
right to review warranties prior to making purchases.

DISPOSITION

The judgment and the order granting summary
judgment are reversed. The trial court is directed to enter a
new and different order denying the motion for summary
judgment. Appellant Osiris Zamora is awarded her costs on
appeal.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

36