Waters v. Kohl's Department Stores CA2/7

Filed 7/7/21 Waters v. Kohl’s Department Stores CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

CRYSTAL WATERS et al., B300638

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC650906)
v.

KOHL’S DEPARTMENT
STORES, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Reversed and remanded
with directions.
Esensten Law, Robert L. Esensten and Jordan S. Esensten
for Plaintiffs and Appellants.
Kelley Drye & Warren, Lauri A. Mazzuchetti, Tahir L.
Boykins and Rebecca J. Wahlquist for Defendant and
Respondent.

_______________________
 INTRODUCTION
Crystal Waters and Tony Valenti (together, Waters) appeal
the judgment entered after the trial court granted Kohl’s
Department Stores’ motion for a “no-merit” determination
pursuant to Civil Code1 section 1781, subdivision (c)(3), on
Waters’s Consumers Legal Remedies Act cause of action, and
Kohl’s’ subsequent motion for judgment on the pleadings on
Waters’s remaining causes of action. Waters argues the trial
court erred in several respects, including by denying Waters’s
request to continue the no-merit motion hearing to enable Waters
to conduct necessary discovery. We agree and reverse the
judgment.
FACTUAL AND PROCEDURAL HISTORY
A. Kohl’s Cash
Kohl’s allows customers to earn $10 in “Kohl’s Cash” usable
on a future transaction for each $50 spent at Kohl’s. The Kohl’s
Cash certificates have expiration dates and other terms and
conditions. The front of the certificate lists the dates on which
the certificate is valid and directs the holder to “[s]ee back for
details and exclusions.”
B. The Complaint
In this proposed class action, Waters alleges Kohl’s Cash
misleads consumers because, despite its name and appearance,
Kohl’s does not treat Kohl’s Cash as “actual cash,” but rather
applies Kohl’s Cash to certain purchases and returns in a manner
that causes customers to overpay for goods. With respect to

1 Unless otherwise designated all further statutory
references are to the Civil Code.

2
purchases, Waters alleges Kohl’s applies Kohl’s Cash to
purchases before it applies any percent-off discounts, which
deprives customers of the “full amount and benefit” of the Kohl’s
Cash “and/or” the advertised discount. With respect to returns,
Waters alleges that when customers return items that earned
them Kohl’s Cash, or items that customers purchased with Kohl’s
Cash, Kohl’s deducts the “full amount” of the Kohl’s Cash from
the refund amount, “even though the customer was only able to
utilize a portion of that Kohl’s Cash to purchase the item,” due to
Kohl’s’ alleged practice of applying Kohl’s Cash to purchases
before applying any percent-off discounts.
As an example of her purchase allegations, Waters alleges
that if a customer who earns $60 in Kohl’s Cash from the
purchase of a $300 blender then purchases a $100 toaster on sale
for 20 percent off, Kohl’s first deducts $60 in Kohl’s Cash from
the $100 purchase price, and then applies the 20 percent discount
to the remaining $40 purchase price, leaving the customer to pay
$32 for the toaster. If Kohl’s applied the 20 percent discount to
the $100 purchase price before deducting $60 in Kohl’s Cash, the
customer would pay $20 for the toaster. Waters alleges that this
example demonstrates that “[t]he customer has lost $12,”
effectively turning what appears to be $60 in Kohl’s Cash into
$48 in Kohl’s Cash.
As an example of her return allegations, Waters alleges
that “even though the customer receives the benefit of only $48 in
Kohl’s Cash from the $60 certificate,” when the customer later
returns the $300 blender, Kohl’s deducts $60 from the $300
refund price, thereby returning only $240 to the customer.
According to Waters, the customer “has now paid $92 [$32 + $60]
for a toaster that would have cost him or her no more than $80 if

3
he or she had never used Kohl’s Cash,” and Kohl’s has retained
$12.
Waters alleges Kohl’s’ labeling and application of Kohl’s
Cash violate the Consumers Legal Remedies Act (CLRA) (§ 1750
et seq.), the unfair competition law (UCL) (Bus. & Prof. Code,
§ 17200 et seq.), and the false advertising law (FAL) (Bus. & Prof.
Code, § 17500 et seq.). Waters also alleges a separate cause of
action for restitution.
C. The Demurrer to the Complaint and Waters’s Efforts To
Obtain Discovery
Waters filed her complaint on February 15, 2017. Kohl’s
removed the case to federal court on March 27, 2017. The federal
court remanded the case to the superior court on July 3, 2017.
Kohl’s filed a demurrer to the complaint on September 28,
2017. Kohl’s argued that Waters’s CLRA, UCL, and FAL causes
of action did not allege facts sufficient to state causes of action
because no reasonable consumer would be misled by the Kohl’s
Cash certificates, and because the back of the certificates
disclosed the terms and conditions of their use. Kohl’s argued
Waters’s restitution cause of action failed to state a claim because
restitution is not a separate cause of action.
The trial court overruled Kohl’s’ demurrer on November 20,
2017 “consistent with the ruling made in open court.”2 The court
ordered Kohl’s to answer the complaint by January 16, 2018, and
to file a motion for summary judgment or summary adjudication
by the same date. The court ordered Waters to file any
opposition to Kohl’s’ summary judgment motion by February 28,

2 The record does not contain a copy of a transcript of the
November 20, 2017 demurrer hearing.

4
2018, and to file a motion for class certification by March 15,
2018. The court scheduled the hearings on Kohl’s’ summary
judgment motion and Waters’s motion for class certification for
April 25, 2018.
Kohl’s removed the case to federal court a second time on
January 19, 2018. The federal court remanded the case to the
superior court a second time on April 9, 2018.
On May 18, 2018, the parties filed a joint statement
addressing Waters’s request for an informal discovery conference
to address certain of Kohl’s’ discovery responses. When the
parties filed the joint statement, Kohl’s had already deposed both
plaintiffs. Kohl’s objected to the scheduling of an informal
discovery conference.
In Waters’s portion of the joint statement, she stated the
parties had a discovery dispute about Waters’s request for
“documents and information directly related to class
certification,” including the identities of persons with knowledge
of the conduct Waters contended was deceptive, internal Kohl’s
documents and communications about “the advertising, labels,
and policies [Waters] contend[ed] [were] deceptive,” Kohl’s’ past
legal proceedings concerning Kohl’s Cash, the identities of known
class members, and “the facts supporting Kohl’s[’] defenses to
class certification.”
In Kohl’s’ portion of the joint statement, Kohl’s stated it
should not be required to provide any of the discovery Waters
sought because Kohl’s would shortly file a summary judgment
motion, which would dispose of Waters’s case. Kohl’s asserted
Waters “should have to identify what additional discovery, if any,
[she] believe[s] is necessary before the Court can adjudicate
[Kohl’s’ summary judgment] motion.”

5
D. The Summary Judgment Motion and Waters’s Efforts To
Obtain Discovery
Kohl’s filed its summary judgment motion on May 23, 2018.
In support of the motion, Kohl’s submitted a declaration from
Kohl’s employee Robin Bunkers which attached examples of
Kohl’s Cash certificates and copies of Kohl’s transaction records
for the two plaintiffs. Kohl’s also submitted excerpts from the
plaintiffs’ deposition transcripts.3
Citing the plaintiffs’ deposition testimony, Kohl’s argued
summary judgment should be granted on Waters’s CLRA, UCL,
and FAL causes of action because undisputed facts showed that
“Kohl’s processed Plaintiffs’ Kohl’s Cash coupons exactly as the
terms and conditions stated on those coupons promised,” and a
reasonable consumer would not understand Kohl’s Cash to be
treated as actual cash.4
After Kohl’s filed its motion, but before Waters filed her
opposition, the court held an informal discovery conference on

3 Kohl’s’ notice of motion does not address Waters’s separate
restitution cause of action.
4 Kohl’s also argued no reasonable consumer could be misled
by Kohl’s Cash because disclosures printed on the back of the
certificates allegedly “clearly disclosed the relevant conditions.”
The Kohl’s Cash certificate cited by Kohl’s states: “Kohl’s Cash
coupons and other dollar-off discounts will be applied prior to
percent-off total purchase discounts/coupons. . . . If merchandise
purchased earning a Kohl’s Cash coupon is subsequently
returned or price adjusted, the value of the Kohl’s Cash coupon
previously earned and/or the amount of the merchandise refund
will be reduced to reflect any unearned value. Return value of
merchandise purchased with a Kohl’s Cash coupon may be
subject to adjustment.”

6
May 31, 2018. The court extended Waters’s deadline to file
motions to compel responses to certain written discovery to
August 31, 2018; scheduled a status conference for July 2, 2018;
and continued the informal discovery conference to August 13,
2018, the same day as the hearing on Kohl’s’ summary judgment
motion.
The parties filed a joint status report before the July 2,
2018 status conference. Waters stated that to oppose Kohl’s’
summary judgment motion, she required discovery about
whether Kohl’s’ conduct was likely to deceive a reasonable
consumer, including complaints about Kohl’s Cash and
identification of persons with knowledge of Kohl’s Cash. Kohl’s
asserted Waters’s description of the discovery she needed to
oppose the summary judgment motion was not sufficiently
specific, and “other than any specific discovery that must occur in
order for the Court to be able to adjudicate Kohl’s[’] summary
judgment motion, no other discovery should occur.” The trial
court vacated the July 2, 2018 status conference.
Waters filed her opposition to Kohl’s’ summary judgment
motion on July 30, 2018. Waters submitted declarations from
both plaintiffs in which each stated that based on the name and
appearance of the Kohl’s Cash certificates, each “believed and
expected that Kohl’s would treat Kohl’s Cash as actual cash at its
stores and on its website and would apply Kohl’s Cash after the
percent-off discount.” Both stated they did not know they were
“not receiving the full benefit of the stated value of Kohl’s Cash
and the stated value of the percent-off discount.” Both also
stated they did not know that when returning items, Kohl’s
“subtracted the entire amount of Kohl’s Cash from the refund
price,” even though each plaintiff “was only able to redeem a

7
portion of the Kohl’s Cash due to Kohl’s[’] policy of applying
Kohl’s Cash prior to the percent-off discount.”
Waters also submitted a declaration from a marketing
expert, Thomas J. Maronick, in which Maronick set forth the
results of a survey he performed of California Kohl’s customers
who had received and used Kohl’s Cash. Maronick opined that
based on his survey results, Kohl’s customers who used Kohl’s
Cash “expect the Kohl’s Cash to be applied to the discounted/sale
price of an item they’re purchasing,” and that “if Kohl’s[’]
practice, as alleged, is to apply the Kohl’s Cash before application
of any sale or discount from the retail price, then Kohl’s is
misleading consumers to their detriment.”
Waters argued that Kohl’s’ summary judgment motion
should be denied because it did not dispose of all of Waters’s
causes of action, including because summary judgment could not
be granted against her CLRA cause of action pursuant to section
1781, subdivision (c).5 Waters also argued that triable issues of
fact precluded summary judgment. Waters asked that, if the
court did not deny the motion, it continue the motion hearing
pursuant to Code of Civil Procedure section 437c, subdivision (h),
to allow Waters to conduct discovery “because [Waters’s]
outstanding discovery requests, such as consumer complaints and
prior lawsuits filed by various states’ attorney generals [sic], will

5 Section 1781, subdivision (c), provides: “A motion based
upon Section 437c of the Code of Civil Procedure shall not be
granted in any action commenced as a class action pursuant to
subdivision (a)” of section 1781. Instead, pursuant to section
1781, subdivision (c)(3), a court may determine whether a CLRA
“action is without merit or there is no defense to the action.”

8
help [Waters] prove that Kohl’s[’] conduct is ‘likely to deceive’ the
public.”6
The trial court denied Kohl’s’ motion “for the reasons set
forth in open court.” The court’s minute order states that it
“finds that there are triable issues of material fact.” According to
the parties’ agreed statement,7 the court ruled summary
judgment could not be granted on Waters’s CLRA claim because
Kohl’s had not filed a no-merit motion against that claim, as
required by section 1781, subdivision (c)(3). The court sustained
Waters’s objection to Bunkers’s declaration and its exhibits
because Bunkers had not signed the declaration under penalty of
perjury “under the laws of the State of California,” as required by
Code of Civil Procedure section 2015.5, subdivision (b).
The court also ruled that “[a]ssuming arguendo that
Kohl’s[’] evidence was admissible,” Kohl’s had not satisfied its
summary judgment burden because Kohl’s did not “submit
evidence as to whether a reasonable consumer would read the
disclosures on the back of the Kohl’s Cash certificate or whether a
reasonable consumer would understand those disclosures.” The
court found the plaintiffs’ deposition testimony “does not show

6 Waters’s counsel appears to have filed a declaration in
opposition to Kohl’s’ summary judgment motion in which counsel
addressed Waters’s request for a continuance of the summary
judgment hearing to conduct discovery to oppose the motion. The
record does not contain a copy of the declaration.
7 A court reporter was not present at the summary judgment
hearing. The parties prepared an agreed statement pursuant to
California Rules of Court, rule 8.134 regarding the trial court’s
ruling. This court granted Waters’s unopposed motion to
augment the appellate record with a copy of the agreed
statement.

9
that there is no disputed fact issue about whether consumers are
likely to be deceived,” and Kohl’s had not “negate[d] the ‘unfair’
or ‘unlawful’ prongs of the UCL.” The court identified “[t]riable
issues of material fact [to] include whether a reasonable
consumer would read the disclosures on the back of the Kohl’s
Cash certificate and whether a reasonable consumer would
understand the significance of those disclosures.” The court
further found that even if Kohl’s had carried its initial summary
judgment burden, Waters satisfied her burden of submitting
evidence showing triable issues of fact by submitting Maronick’s
survey evidence.
E. The No-merit Motion and Waters’s Efforts To Obtain
Discovery
On August 3, 2018, before the August 13, 2018 hearing on
Kohl’s’ summary judgment motion, and in response to Waters’s
argument in her summary judgment opposition that section 1781,
subdivision (c), precluded summary judgment of a CLRA cause of
action, Kohl’s filed a motion pursuant to section 1781,
subdivision (c)(3), for a determination that Waters’s CLRA cause
of action had no merit. Kohl’s’ motion was identical in significant
respects to its summary judgment motion. Again citing the
plaintiffs’ deposition testimony, Kohl’s argued the court should
find the CLRA cause of action without merit because undisputed
facts showed that “Kohl’s processed Plaintiffs’ Kohl’s Cash
coupons exactly as the terms and conditions stated on those
coupons promised,” and a reasonable consumer would not
understand Kohl’s Cash to be treated as actual cash. Kohl’s
submitted the same Bunkers declaration with the same attached
examples of Kohl’s Cash certificates and copies of the plaintiffs’
Kohl’s transaction records, but with a corrected attestation.

10
Kohl’s also submitted the same excerpts from the plaintiffs’
deposition transcripts.
In her opposition to the no-merit motion, filed seven days
after the trial court denied Kohl’s’ summary judgment motion,
Waters argued the court’s denial of Kohl’s’ summary judgment
motion required denial of the no-merit motion, and the same
triable issues of fact the court found precluded summary
judgment also precluded a no-merit finding on the CLRA cause of
action. Waters also submitted a copy of the same Maronick
declaration she had submitted in opposition to Kohl’s’ summary
judgment motion.
In its August 24, 2018 reply, Kohl’s sought a continuance of
the August 31, 2018 hearing on its no-merit motion to enable
Kohl’s to depose Maronick. Kohl’s argued it had “had no
opportunity to address [the Maronick survey] through expert
discovery,” and should the court find that Maronick’s declaration
created triable issues of fact for the no-merit motion, the court
“should postpone consideration of [Kohl’s’] [n]o-[m]erit [m]otion
pending the completion of expert discovery.” Kohl’s asserted that
“[d]ue process requires that Kohl’s be provided a full and fair
opportunity to depose Dr. Maronick.” Kohl’s also submitted
another declaration from Bunkers in which she stated that Kohl’s
applies percent discounts to purchases before applying Kohl’s
Cash.
After hearing argument on August 31, 2018, the trial court
continued the no-merit motion hearing so Kohl’s could depose
Maronick. On October 15, 2018, while Kohl’s’ no-merit motion

11
remained pending, the court denied Waters’s ex parte application
to compel the deposition of Kohl’s’ person most qualified witness.8
Kohl’s deposed Maronick on October 19, 2018. On
October 31, 2018 Waters served Kohl’s with a second Maronick
declaration and survey. In his second survey, Maronick surveyed
California Kohl’s customers who had received and used Kohl’s
Cash about their understanding and expectations about Kohl’s’
application of Kohl’s Cash certificates and percent-off
certificates.9 Maronick opined his survey results “show[ed] a
significant inconsistency among consumers regarding what they
expect to pay and whether or not the discount is applied first,
suggesting a failure to read and/or understand the disclaimer on
the back of the Kohl’s Cash certificate,” and that “if Kohl’s[’]
practice, as alleged, is to apply the Kohl’s Cash before application
of any sale or discount from the retail price, then Kohl’s is
misleading consumers to their detriment.”
Following Maronick’s deposition, Kohl’s filed a “further
reply” in support of its no-merit motion on November 7, 2018.
Kohl’s submitted a copy of Maronick’s deposition transcript,

8 The record does not contain Waters’s ex parte application
or Kohl’s’ opposition. The trial court’s minute order states no
parties appeared at the ex parte hearing, and “[a]fter reading and
considering all moving party and opposing party papers . . . [t]he
ex parte is denied.”
9 For example, the survey asked: “Assume you were
shopping at Kohl’s and found $100.00 worth of items you wished
to purchase. You have a coupon that entitles you to 20% off your
entire transaction. You also have a $40.00 Kohl’s Cash
certificate. You wish to use both the 20% off coupon and the
$40.00 Kohl’s Cash certificate at checkout. How much would you
expect to pay for the transaction?”

12
copies of both Maronick declarations, and excerpts from the
plaintiffs’ deposition transcripts. Kohl’s argued that Bunkers’s
“undisputed” second declaration proved Kohl’s applied percent
discounts to purchases before applying Kohl’s Cash. Citing
extensively from Maronick’s deposition transcript, Kohl’s
asserted that neither of Maronick’s declarations created triable
issues of fact.
Waters filed a supplemental brief in opposition to Kohl’s’
no-merit motion on November 14, 2018. Waters argued that
Kohl’s had not carried its initial burden on the motion because
Kohl’s had not demonstrated a reasonable consumer would not be
deceived by the Kohl’s Cash certificates and, even if Kohl’s had
carried its burden, Maronick’s two surveys demonstrated that
Kohl’s’ conduct misled consumers. Waters also submitted copies
of Kohl’s transaction records that Waters maintained showed
Kohl’s applied Kohl’s Cash to Waters’s purchases before applying
a percent discount.
Citing Code of Civil Procedure section 437c, subdivision (h),
Waters also requested a continuance of the no-merit motion
hearing to permit Waters to conduct discovery on whether Kohl’s
Cash certificates were likely to deceive a reasonable consumer.
Waters identified the specific discovery she requested, including a
person most qualified deposition of Kohl’s, complaints related to
Kohl’s’ alleged practices with respect to Kohl’s Cash certificates,
and “[a]ny consumer correspondence or complaints concerning
Kohl’s Cash” and Kohl’s’ alleged application of Kohl’s Cash to
purchases and returns.
Waters’s counsel submitted a declaration in which he
described his unsuccessful efforts to obtain discovery responses
from Kohl’s, including discovery about “whether Kohl’s[’] conduct

13
is likely to deceive the reasonable consumer.” Waters’s counsel
also stated that at a September 26, 2018 hearing, the trial court
had instructed Waters that if she required discovery to oppose
Kohl’s’ no-merit motion, she should state that in her
supplemental brief in opposition to the motion.
The court heard argument on the no-merit motion on
January 10, 2019. Waters’s counsel argued Waters had “never
been presented the opportunity to conduct discovery as to
whether Kohl’s Cash is likely to deceive. We’ve not been able
to . . . get any evidence from Kohl’s because Kohl’s said that it
was all irrelevant to this motion. [¶] Now Kohl’s is saying that
we should have presented evidence which we weren’t allowed
discovery on. . . . [W]hen I made this argument earlier, Your
Honor said to outline the . . . types of discovery that we would
seek to be able to respond to the fact that consumers . . . are not
likely to be deceived or to prove that consumers are likely to be
deceived. [¶] And we’ve listed that in our supplemental briefing,
that type of discovery. . . . [W]e should be permitted to conduct
that discovery prior to any dismissal of the claims on that basis.
It would be entirely unjust for us not to be able to conduct
discovery . . . as to those issues. . . . [¶] So if Kohl’s did meet its
burden, we should be able to conduct discovery. . . . [¶] It would
be unjust for . . . Kohl’s [to] get a second chance, a third chance at
submitting evidence, at attempting to refute the plaintiffs’
evidence without affording us the same opportunity to refute
their evidence, to conduct discovery because we have been
hampered in discovery so far. We have been handcuffed.”
The court granted Kohl’s’ no-merit motion as to Waters’s
CLRA cause of action. Citing the plaintiffs’ deposition testimony,
the court ruled, “Based upon the evidence presented and the

14
specific plain language of the coupons in evidence, the court finds
that no reasonable consumer would be misled regarding the use
of the Kohl’s Cash coupons.” The court did not address Waters’s
request for a continuance of the hearing to permit her to conduct
discovery regarding whether Kohl’s Cash certificates are likely to
deceive a reasonable consumer.
F. The Motion for Judgment on the Pleadings and Waters’s
Efforts To Obtain Discovery
After the trial court granted Kohl’s’ no-merit motion, Kohl’s
moved on February 20, 2019 for judgment on the pleadings
against Waters’s remaining UCL, FAL, and restitution causes of
action.10 Kohl’s argued that because the court found that “‘no
reasonable consumer would be misled regarding the use of the
Kohl’s Cash coupons,’” none of Waters’s other causes of action
stated a claim.
Waters argued in opposition that the court had rejected
Kohl’s’ arguments in overruling Kohl’s’ demurrer, the court could
not judicially notice its no-merit ruling, and the court’s no-merit
ruling did not in any event dispose of Waters’s other causes of
action. Waters again argued she should be allowed discovery on
the likelihood of consumer deception before the court entered
judgment against her, observing that “[t]o date, Plaintiffs have
been unable to obtain discovery on likely to deceive.” Waters
again identified the specific discovery she requested and stated
that the requested discovery “would clearly be relevant to
Plaintiffs’ allegations concerning likely to deceive.” Waters’s

10 The same day Kohl’s filed its motion for judgment on the
pleadings the trial court granted Kohl’s’ ex parte application to
stay the briefing on Waters’s pending class certification motion.

15
counsel submitted a detailed declaration in which he described
Waters’s efforts to obtain discovery, the specific discovery Waters
requested, and the relevance of the discovery to disputed issues
in the case.
At the hearing on the motion, Waters’s counsel again
argued that “[t]o date, we have not been permitted to conduct any
discovery, much less discovery on likely to deceive. [¶] We asked
for discovery on likely to deceive. Your Honor said it was not
necessary for Kohl’s[’] motions and/or for class certification, and
so we have not been able to conduct discovery on that.”
After granting Kohl’s’ request for judicial notice of the no-
merit ruling, the court granted Kohl’s’ motion for judgment on
the pleadings as to Waters’s remaining causes of action. The
court found the no-merit ruling rendered Waters unable to prove
her UCL and FAL causes of action, and that restitution is not a
separate cause of action. The court did not address Waters’s
request to take discovery on whether Kohl’s Cash certificates are
likely to deceive a reasonable consumer. The court dismissed
Waters’s remaining causes of action “with prejudice [and] without
leave to amend.”
Waters timely appealed from the order granting the no-
merit motion and the judgment of dismissal entered after the
court granted Kohl’s’ motion for judgment on the pleadings as to
Waters’s remaining causes of action.
DISCUSSION
A. Relevant Law
Section 1770, subdivision (a), makes unlawful certain
“unfair methods of competition and unfair or deceptive acts or
practices undertaken by any person in a transaction intended to

16
result or that results in the sale or lease of goods or services to
any consumer.” Waters alleges Kohl’s’ labeling and application of
Kohl’s Cash certificates violate section 1770, subdivisions (a)(5),
(a)(7), (a)(9), and (a)(13).11
The plaintiff asserting a CLRA claim must show that an
allegedly fraudulent or deceptive representation is likely to
deceive a reasonable consumer. (Consumer Advocates v. Echostar
Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361-1362
(Consumer Advocates).) “This is determined by considering a
reasonable consumer who is neither the most vigilant and
suspicious of advertising claims nor the most unwary and
unsophisticated, but instead is ‘the ordinary consumer within the
target population.’ [Citation.] ‘“Likely to deceive” implies more
than a mere possibility that the advertisement might conceivably
be misunderstood by some few consumers viewing it in an
unreasonable manner. Rather, the phrase indicates that the ad
is such that it is probable that a significant portion of the general

11 Section 1770 provides: “(a) The following unfair methods of
competition and unfair or deceptive acts or practices undertaken
by any person in a transaction intended to result or that results
in the sale or lease of goods or services to any consumer are
unlawful: . . . [¶] (5) Representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits,
or quantities that they do not have or that a person has a
sponsorship, approval, status, affiliation, or connection that the
person does not have. [¶] (7) Representing that goods or services
are of a particular standard, quality, or grade, or that goods are
of a particular style or model, if they are of another.
[¶] (9) Advertising goods or services with intent not to sell them
as advertised. [¶] (13) Making false or misleading statements of
fact concerning reasons for, existence of, or amounts of, price
reductions.”

17
consuming public or of targeted consumers, acting reasonably in
the circumstances, could be misled.’” (Chapman v. Skype Inc.
(2013) 220 Cal.App.4th 217, 226 [reasonable consumer standard
for UCL and FAL causes of action]; see Consumer Advocates, at
p. 1360 [UCL and FAL reasonable consumer standard applies to
CLRA causes of action].) The question whether consumers are
likely to be deceived is generally a question of fact. (Chapman, at
p. 226; see Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th
1342, 1376.)
“[A] CLRA cause of action cannot be summarily disposed of
by means of a motion for summary adjudication or summary
judgment.” (Smith v. Wells Fargo Bank, N.A. (2005)
135 Cal.App.4th 1463, 1474 (Smith).) It can, however, “be
dismissed before trial on a motion for a determination that it is
without merit (i.e., a no-merit determination). [Citations.] In
practice, courts . . . have applied the standards applicable to
motions for summary judgment and summary adjudication in
deciding motions for no-merit determinations.” (Ibid.; see
Consumer Advocates, supra, 113 Cal.App.4th at p. 1359 [“[w]e
can see no meaningful distinction in the choice” between
summary judgment and a no-merit determination].)
B. The Trial Court Abused Its Discretion by Denying Waters’s
Request To Continue the No-merit Motion Hearing
Waters contends the trial court erred by denying her
request pursuant to Code of Civil Procedure section 437c,
subdivision (h), to continue the hearing on Kohl’s’ no-merit
motion to permit Waters to take discovery on whether Kohl’s
Cash certificates are likely to deceive a reasonable consumer.
Waters argues the deprivation of necessary discovery requires
reversal of the trial court’s order granting the no-merit motion.

18
 Code of Civil Procedure section 437c, subdivision (h),
provides, “If it appears from the affidavits submitted in
opposition to a motion for summary judgment or summary
adjudication, or both, that facts essential to justify opposition
may exist but cannot, for reasons stated, be presented, the court
shall deny the motion, order a continuance to permit affidavits to
be obtained or discovery to be had, or make any other order as
may be just.” The party opposing summary judgment who seeks
a continuance must show: “‘“‘(1) the facts to be obtained are
essential to opposing the motion; (2) there is reason to believe
such facts may exist; and (3) the reasons why additional time is
needed to obtain these facts.’”’” (Jade Fashion & Co., Inc. v.
Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 656 (Jade
Fashion).) “‘The party seeking the continuance must justify the
need, by detailing both the particular essential facts that may
exist and the specific reasons why they cannot then be
presented.’” (Chavez v. 24 Hour Fitness USA, Inc. (2015)
238 Cal.App.4th 632, 643 (Chavez).) “The statute mandates a
continuance of a summary judgment hearing upon a good faith
showing by affidavit that additional time is needed to obtain facts
essential to justify opposition to the motion.” (Cooksey v. Alexakis
(2004) 123 Cal.App.4th 246, 253-254 (Cooksey); see Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [“[a]n adverse
party who chooses to oppose [a summary judgment] motion must
be allowed a reasonable opportunity to do so”].) We review a trial
court’s decision whether to grant a continuance under Code of
Civil Procedure section 437c, subdivision (h), for an abuse of
discretion. (Jade Fashion, at p. 656; Chavez, at p. 643.)
“When a continuance of a summary judgment motion is not
mandatory, because of a failure to meet the requirements of Code

19
of Civil Procedure section 437c, subdivision (h), the court must
determine whether the party requesting the continuance has
nonetheless established good cause therefor. That determination
is within the court’s discretion.” (Lerma v. County of Orange
(2004) 120 Cal.App.4th 709, 716; accord, Chavez, supra,
238 Cal.App.4th at p. 643; see also Cooksey, supra,
123 Cal.App.4th at p. 254 [“in the absence of an affidavit that
requires a continuance under [Code of Civil Procedure] section
437c, subdivision (h), we review the trial court’s denial of
appellant’s request for a continuance for abuse of discretion”].)
In her supplemental opposition to Kohl’s’ no-merit motion,
Waters identified eight categories of discovery she asserted were
necessary to oppose the no-merit motion, including “PMQ
deposition(s);” “litigation, complaints, judicial proceedings, and
administrative proceedings relating to” the challenged policies;
discovery regarding “[h]ow the name Kohl’s Cash was created”
and “[h]ow the design of the Kohl’s Cash certificates was
created;” and “[a]ny consumer correspondence or complaints
concerning Kohl’s Cash” or the challenged policies. Waters
asserted the discovery was relevant to disproving Kohl’s’
contention that Kohl’s Cash certificates were not likely to deceive
a reasonable consumer. Waters’s counsel stated in his
declaration filed with the supplemental opposition that Waters
included the discovery categories in her brief at the court’s
direction. Waters’s counsel also described Waters’s unsuccessful
efforts to obtain discovery from Kohl’s. The declaration neither
repeated the discovery categories listed in Waters’s supplemental
brief nor reiterated that the discovery was necessary to oppose
Kohl’s’ no-merit motion. The declaration thus does not strictly
comply with the requirements of Code of Civil Procedure

20
section 437c, subdivision (h). (See Code Civ. Proc., § 437c,
subd. (h) [“affidavits” submitted in opposition to summary
judgment motion must show facts may exist to justify opposition
but cannot for reasons stated be presented].)
We need not determine whether Waters’s noncompliance
with Code of Civil Procedure section 437c, subdivision (h), can or
should be excused, however, because Waters unquestionably
showed good cause to continue the no-merit motion hearing
under the more general standard.12 When Waters filed her
supplemental opposition to the no-merit motion, Kohl’s had
deposed both plaintiffs and Waters’s expert, and had submitted
deposition testimony from all three witnesses in support of its no-
merit motion. Waters, by contrast, had not been permitted to
take any depositions. Indeed, when Waters sought to take Kohl’s’
person most qualified deposition during the multi-month delay
occasioned by Kohl’s’ request to continue the no-merit motion
hearing so Kohl’s could depose Waters’s expert, the court denied
Waters leave to do so. This disparity in discovery was apparent
from the parties’ motion papers, even without Waters’s

12 The parties debate whether Code of Civil Procedure
section 437c, subdivision (h), applies to no-merit motions. No
published case appears to address this issue, but courts apply
“the standards applicable to motions for summary judgment and
summary adjudication in deciding motions for no-merit
determinations.” (Smith, supra, 135 Cal.App.4th at p. 1474.)
Kohl’s offers no reason the standard in Code of Civil Procedure
section 437c, subdivision (h), for continuing a summary judgment
hearing to obtain necessary discovery would not constitute a
“standard[] applicable to motions for summary judgment and
summary adjudication” that courts apply to no-merit motions.
We need not resolve this question because, as discussed, Waters
showed good cause for a continuance under the common measure.

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identification in her supplemental brief of the specific discovery
she required to oppose the motion.
The discovery Waters sought was relevant to the no-merit
motion and necessary to oppose it. Kohl’s argued the motion
should be granted because no reasonable consumer would be
misled by the Kohl’s Cash certificates. Discovery reflecting
consumer complaints or confusion about Kohl’s Cash or Kohl’s’
treatment of Kohl’s Cash would bear directly on that contention.
A deposition of Kohl’s on topics including how Kohl’s applies
Kohl’s Cash to purchases and refunds would be similarly
probative, in addition to enabling Waters to test the veracity of
Bunkers’s statements regarding how and when Kohl’s applies its
Kohl’s Cash policies.
Further, Waters was diligent in seeking discovery to oppose
the no-merit motion. Waters alerted the court to her need for
discovery on the likelihood of consumer deception in the joint
status report filed before the (ultimately vacated) July 2, 2018
status conference, in her opposition to Kohl’s’ summary judgment
motion, in her supplemental brief in opposition to the no-merit
motion, and in her counsel’s declaration filed with the
supplemental brief.13 At the hearing on the no-merit motion,
Waters’s counsel argued Waters had “never been presented the
opportunity to conduct discovery as to whether Kohl’s Cash is
likely to deceive. . . . [W]e should be permitted to conduct that
discovery prior to any dismissal of the claims on that basis.” The
court granted Kohl’s’ no-merit motion without addressing

13 Waters also identified the requested discovery in her
opposition and accompanying counsel declaration filed in
opposition to Kohl’s’ motion for judgment on the pleadings after
the court granted Kohl’s’ no-merit motion.

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Waters’s request for a continuance of the hearing or her assertion
that she had been deprived of necessary discovery.
The trial court’s decision not to continue the no-merit
motion hearing to permit Waters to take discovery on the
likelihood of consumer deception prejudiced Waters. The court
granted the motion on the very issue about which Waters sought
discovery, finding that “[b]ased upon the evidence presented and
the specific plain language of the coupons in evidence, . . . no
reasonable consumer would be misled regarding the use of the
Kohl’s Cash coupons.” And the court did so after denying Kohl’s’
substantially identical summary judgment motion on the grounds
that “[t]riable issues of material fact include whether a
reasonable consumer would read the disclosures on the back of
the Kohl’s Cash certificate or whether a reasonable consumer
would understand the significance of those disclosures.”
“[I]n cases in which the opposing party (usually the
plaintiff) has been thwarted in the attempt to obtain evidence
that might create an issue of material fact, or discovery is
incomplete, the motion for summary judgment should not be
granted.” (Krantz v. BT Visual Images (2001) 89 Cal.App.4th
164, 174.) Waters’s efforts to obtain discovery on the likelihood of
consumer deception were thwarted, and discovery was
incomplete. Furthermore, the disparate treatment of Waters and
Kohl’s “tilted the scales of justice sharply in favor of” Kohl’s,
which had deposed Waters’s witnesses and relied on their
testimony to support its no-merit motion. (Hamilton v. Orange
County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 766 [trial court
abused its discretion by denying parties’ joint request to continue
summary judgment hearing for plaintiff to take necessary
depositions].) Waters should have been permitted a reasonable

23
opportunity to take discovery on the likelihood that Kohl’s Cash
certificates mislead a reasonable consumer before the trial court
adjudicated the CLRA cause of action against her on the ground
that the certificates do not mislead a reasonable consumer.
Because she was not, the order granting Kohl’s’ no-merit motion
must be reversed, as must the order granting Kohl’s’ motion for
judgment on the pleadings on Waters’s UCL and FAL causes of
action, which rests on the order granting the no-merit motion.14

14 In its demurrer to the complaint, which the trial court
overruled, Kohl’s argued Waters’s restitution cause of action did
not state a claim because California does not recognize a separate
cause of action for restitution. Even though no relevant “material
change in applicable case law or statute” had occurred, Kohl’s
made the same argument in its motion for judgment on the
pleadings, and the trial court granted the motion on that basis.
(See Code Civ. Proc., § 438, subd. (g)(1) [party may move for
judgment on the pleadings on same grounds on which party has
already unsuccessfully demurred “provided that there has been a
material change in applicable case law or statute since the ruling
on the demurrer”].) These procedural irregularities
notwithstanding, “[t]here is no freestanding cause of action for
‘restitution’ in California.” (Munoz v. MacMillan (2011)
195 Cal.App.4th 648, 661.) Moreover, Waters’s prayer for relief
includes a request for “an award of restitution in an amount
according to proof,” thus preserving Waters’s ability to seek
restitution on one or more of her other causes of action. We
accordingly affirm the trial court’s order granting Kohl’s’ motion
for judgment on the pleadings on Waters’s restitution cause of
action.

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 DISPOSITION
The judgment in favor of Kohl’s is reversed. The superior
court is directed to vacate its orders granting Kohl’s’ no-merit
motion and Kohl’s’ motion for judgment on the pleadings, to enter
a new order denying Kohl’s’ no-merit motion, and to enter a new
order denying Kohl’s’ motion for judgment on the pleadings on
the UCL and FAL causes of action and granting the motion for
judgment on the pleadings on the restitution cause of action.
Waters shall recover her costs on appeal.

McCORMICK, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.


Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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