Gerash v. Verizon Online CA2/5

Filed 6/14/13 Gerash v. Verizon Online 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 EIGHT

GERALD A. GERASH, B239823

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC459508)
v.
ORDER MODIFYING OPINION
VERIZON ONLINE LLC et al., and
DENYING PETITION FOR
Defendants and Respondents. REHEARING
[NO CHANGE IN JUDGMENT]

THE COURT:
IT IS ORDERED that the opinion filed in the above-captioned matter on May 16,
2013, be modified, due to clerical error, to correct the inadvertent omission of portions
of the text. The modifications are as follows:

1. On page 7, delete the first paragraph and replace it with the following two
paragraphs:
Third, plaintiff asserts that Brewer‘s ―new right–exclusive remedy‖
principle does not apply because the doctrine relates to remedies (which
plaintiff equates with damages), ―not [to] which court has jurisdiction.‖
Plaintiff is again off the mark. The right to sue is a remedy. (Lew v.
Superior Court (1993) 20 Cal.App.4th 866, 872 [describing ―an action for
damages in small claims court‖ as a ―remedy‖].)
 Fourth, plaintiff points to Civil Code section 1428. That section
states in part that ―[a]n obligation arising from operation of law may be
enforced in the manner provided by law, or by civil action or proceeding.‖
Plaintiff seems to think this means he can enforce his section 1722 rights
either in small claims court (―in the manner provided by law‖) or outside
small claims court (―by civil action or proceeding‖). That is not what
Civil Code section 1428 means. It simply means that where a right is
given by statute without any prescribed remedy, ―‗it may be enforced by
any appropriate method recognized by the general law of procedure.‘‖ (3
Witkin, Cal. Procedure (5th ed. 2008) Actions, § 4, p. 66 [―‗This principle
is crystallized in section 1428 of the Civil Code.‘‖]; see also Palo Alto,
supra, 65 Cal.App.3d at p. 131 [observing that a party aggrieved by
violation of a new right created by statute ―is confined to the statutory
remedy if one is provided [citation]; otherwise any appropriate common
law remedy may be resorted to,‖ citing Civ. Code, § 1428].)

2. On page 7, replace the entire third paragraph (beginning with ―Finally‖) with the
following two paragraphs and intervening heading, including a new footnote 2 at the
end of the first paragraph:
Finally, plaintiff contends, by way of footnote, that if he is limited
to small claims court (which he is), ―the more appropriate procedure was
for the trial court to reclassify the case for the small claims division of the
court‖ rather than to dismiss the case. Plaintiff cites no case authority for
this contention, and did not suggest this procedure to the trial court. We
see no reason why a general jurisdiction court should not dismiss a case
that may be brought only in small claims court. Plaintiff points out that an
action that is reclassified—presumably as a limited civil case (see Code
Civ. Proc., § 403.030), which may be brought in the small claims division
if the case is within its jurisdiction (id., § 87)—is deemed to have been

2
 commenced when the complaint was initially filed, rather than at the time
of reclassification. (Id., § 403.070, subd. (a).) But plaintiff makes no
claim that the statute of limitations has expired or will expire before he
can file his small claims suit, so we see no prejudice to plaintiff in any
event.2
2. Judicial Notice and the “Utility” Issue
We would ordinarily have nothing more to say about plaintiff‘s
section 1722 claim in small claims court. But defendants asked the trial
court to, and the trial court did, take judicial notice of documents
purporting to show that defendant Verizon Online is not a utility and
therefore not subject to section 1722. The trial court included the latter
ruling in the judgment of dismissal, so that the judgment expressly states
as a matter of law that Verizon Online is not subject to section 1722. This
was error.

3. Add the text of new footnote 2, as follows:
Plaintiff alleges Verizon‘s conduct occurred in February and March 2011.
The statute of limitations for ―[a]n action upon a liability created by statute, other
than a penalty or forfeiture,‖ is three years. (Code Civ. Proc., § 338, subd. (a).)

4. On page 10, change the number of the heading now numbered ―2‖ to ―3.‖

5. On page 14, change the number of the heading now numbered ―3‖ to ―4.‖

These modifications do not change the judgment. The petition for rehearing is
denied.

____________________________________________________________________
BIGELOW, P. J. RUBIN, J. GRIMES, J.

3
Filed 5/16/13 Gerash v. Verizon Online CA2/8 (unmodifed version)
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 EIGHT

GERALD A. GERASH, B239823

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC459508)
v.

VERIZON ONLINE LLC et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court for the County of Los Angeles.
David L. Minning, Judge. Affirmed as modified.

Johnson & Johnson, Douglas L. Johnson and Nicholas A. Kurtz for Plaintiff and
Appellant.

Munger, Tolles & Olson, Henry Weissmann, James C. Rutten and Aaron G.
Liederman for Defendants and Respondents.
.
____________________________________
 SUMMARY
Civil Code section 1722 (hereafter section 1722) is a peculiar and obscure statute
that applies only to utilities, cable television companies and retailers. Enacted in 1989,
before widespread consumer use of the Internet, the part of the statute on which plaintiff
relies requires utilities to inform their subscribers of their right to service connection or
repair within an agreed upon four-hour period, and allows an action in small claims
court, for actual damages not exceeding $600 if the service or repair is not begun within
the agreed period. (The damages limit was $500 until a 2002 amendment raising it to
$600.) Plaintiff Gerald A. Gerash brought a class action lawsuit in superior court
against Verizon Online LLC and Verizon California, Inc., alleging violation of section
1722 (and, based on the same conduct, causes of action for negligence and for violation
of the unfair competition law (UCL) and Consumer Legal Remedies Act (CLRA)).
We hold plaintiff‘s exclusive remedy under section 1722 lies in small claims
court and therefore affirm the trial court‘s judgment of dismissal sustaining the
defendants‘ demurrer on that ground. The trial court erred, however, in taking judicial
notice of documents offered by defendants to establish that Verizon Online is an
internet service provider and not a utility subject to section 1722. We also reject
defendants‘ contention that plaintiff alleged no conduct by Verizon California, which is
conceded to be a utility. The complaint alleged both defendants contracted with
plaintiff to ―upgrade his DSL (internet) speed and change his phone service.‖ We need
not decide whether Verizon California infringed plaintiff‘s section 1722 rights, as we
accept as true all material facts alleged in the complaint on an appeal from the
sustaining of a demurrer. We conclude the trial court properly dismissed all of
plaintiff‘s other causes of action.
Accordingly, we affirm the judgment of dismissal, but order the judgment
modified to the extent it purports to preclude plaintiff from filing a cause of action
against Verizon Online in small claims court for violation of section 1722.

2
 FACTS
Plaintiff‘s complaint refers to the two defendant companies collectively as
―Verizon.‖ He alleges he has been a ―Verizon DSL and Verizon Wireless customer for
many years.‖ He entered a one-year contract with Verizon on February 28, 2011, ―to
upgrade his DSL (internet) speed and change his phone service.‖ This contract is not in
the record.
Verizon told him the change in DSL service would occur after a Verizon
technician provided in-home service, to occur in about four days. Without notice, his
internet connection was disconnected an hour later. He called Verizon on March 2 to
ask what happened and was told the new DSL speed would be installed the next day,
during a 10-hour window of time. Verizon changed the March 3 date to March 4, and
on March 4 told plaintiff ―that a technician would need to come to [his] home.‖ A
technician was scheduled to come on March 5, but on that date plaintiff received a
recorded telephone message telling him a technician would come on March 6, between
8:00 a.m. and 8:00 p.m. Verizon continued to postpone and reschedule appointments,
and plaintiff repeatedly had to wait at home for technicians who did not arrive.
On March 9, nine days after Verizon disconnected his service, a Verizon
technician came to plaintiff‘s home and ―performed the necessary adjustments to
reconnect his internet access, and install his new DSL speed and phone service.‖
During those nine days, plaintiff went to restaurants and coffee houses and had to pay
them to access their internet service.
Plaintiff sued, alleging the facts just described and including class action
allegations. He also alleged that ―Verizon‘s recording to its customers tells them to wait
in their homes for 12 hours for service calls.‖ Defendants ―have kept numerous
customers waiting in their homes for Defendants [sic] services in excess of four hours‖
and ―have failed to inform their customers of their right to have services performed
within four[]hours.‖ Plaintiff alleged causes of action for violation of section 1722,
unfair business practices under the UCL (Bus. & Prof. Code, § 17200 et seq.), violation
of the CLRA (Civ. Code, § 1750 et seq.), and negligence.

3
 Defendants demurred to the first amended complaint. Defendants argued that (1)
all causes of action against Verizon Online should be dismissed because, ―as a matter of
judicially noticeable fact,‖ Verizon Online provides internet services, not public utility
services, and is therefore not a ―utility‖ subject to section 1722; and (2) although
Verizon California ―actually is a public utility,‖ plaintiff ―[did] not allege any facts
indicating that this local telephone company violated the statute.‖ Defendants relied on
the Public Utility Code‘s definition of ―public utility,‖ which includes telephone
corporations but not internet service providers,1 and sought judicial notice of several
exhibits purporting to show that the California Public Utilities Commission (CPUC)
regulates telephone utilities, that Verizon Online is not on the CPUC‘s website list of
telephone utilities it regulates, and that Verizon Online‘s terms of service state that it
does not offer telephone services.
The trial court took judicial notice of the documents just described, and sustained
the demurrer without leave to amend. The court‘s written order entering final judgment
for defendants specified that the demurrer to plaintiff‘s section 1722 claim was
sustained without leave to amend on the ground that an action in small claims court is
the exclusive remedy and, with respect to Verizon Online, on the ground that it was not
a utility subject to section 1722. The judgment of dismissal further states that plaintiff
―remains free to file this cause of action against Verizon California in small claims court
if he so chooses.‖ The court also found plaintiff‘s other claims were not actionable.
This appeal followed.
DISCUSSION
A demurrer tests the legal sufficiency of the complaint. We review the complaint
de novo to determine whether it alleges facts sufficient to state a cause of action. For

1 The Public Utility Code states: ―‗Public utility‘ includes every common carrier,
toll bridge corporation, pipeline corporation, gas corporation, electrical corporation,
telephone corporation, telegraph corporation, water corporation, sewer system
corporation, and heat corporation, where the service is performed for, or the commodity
is delivered to, the public or any portion thereof.‖ (Pub. Util. Code, § 216, subd. (a).)

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purposes of review, we accept as true all material facts alleged in the complaint, but not
contentions, deductions or conclusions of fact or law. We also consider matters that
may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a
demurrer is sustained without leave to amend, ―we decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of discretion and
we affirm.‖ (Ibid.) Plaintiff has the burden to show a reasonable possibility the
complaint can be amended to state a cause of action. (Ibid.)
1. The Exclusive Remedy for a Section 1722 Violation
All of plaintiff‘s causes of action rest on the premise that Verizon violated
section 1722. Section 1722 requires cable television companies and utilities to inform
their subscribers of their right to service connection or repair within a four-hour period
if the presence of the subscriber is required. (§ 1722, subds. (b)(1) & (c)(1).) Similar
requirements apply to the delivery and service or repair of merchandise by retailers. (§
1722, subd. (a)(1).) If the service connection or repair is not begun within the agreed
four-hour period, except for delays caused by unforeseen or unavoidable circumstances,
―the subscriber may bring an action in small claims court against the [company or]
utility for lost wages, expenses actually incurred, or other actual damages not exceeding
a total of six hundred dollars ($600).‖ (Id., subds. (b)(2) & (c)(2).)
Plaintiff asserts he may also bring an action in superior court, but the authorities
are clear that he may not. ―‗[W]here a statute creates new rights and obligations not
previously existing in the common law, the express statutory remedy is deemed to be
the exclusive remedy available for statutory violations, unless it is inadequate.‘‖
(Brewer v. Premier Gulf Properties, LP (2008) 168 Cal.App.4th 1243, 1252 (Brewer),
quoting De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz
Mobile Estates (2001) 94 Cal.App.4th 890, 912 (De Anza); see also Palo Alto-Menlo
Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121,
131 (Palo Alto) [―Where a new right is created by statute, the party aggrieved by its
violation is confined to the statutory remedy if one is provided.‖].) Brewer refers to this

5
principle as the ―‗new right–exclusive remedy‘ doctrine.‖ (Brewer, at p. 1252.)
Accordingly, because section 1722 creates new rights and obligations that are unrelated
to any common law rights and obligations, the remedy provided by the statute is
plaintiff‘s exclusive remedy.
Plaintiff does not contend the small claims remedy is inadequate, yet insists he
can sue in superior court to recover the remedies enumerated in section 1722.
First, plaintiff cites statutory construction principles differentiating discretionary
action (―may‖) from mandatory action (―shall‖), and concludes that because the statute
says he ―may‖ bring an action in small claims court, he is not required to do so.
Plaintiff fundamentally misreads the statute. He may choose to sue or not to sue, but if
he does sue, there is only one place to do so: small claims court. Section 1722 is
directed at a small problem, the annoyance and lost wages that can accompany delays in
service repairs, for which the Legislature provided a small remedy not to exceed $600,
recoverable in small claims court. If the Legislature had meant to permit consumers
whose section 1722 rights are infringed to sue in small claims court or in some other
court of plaintiff‘s choosing, the statute would not have specified the remedy is
recoverable in small claims court.
Second, plaintiff cites Mims v. Arrow Financial Services, LLC (2012) 565 U.S.
___ [132 S.Ct. 740]. Mims, in the course of a discussion of concurrent jurisdiction,
stated a ―‗general rule that the grant of jurisdiction to one court does not, of itself, imply
that the jurisdiction is to be exclusive.‘‖ (Id. at p. 749.) Mims does not apply here.
Mims held that, where a federal consumer protection statute contained a permissive
grant of jurisdiction to state courts, federal and state courts had concurrent jurisdiction
over private suits arising under the statute. (Ibid.; id. at p. 745 [―We find no convincing
reason to read into the [statute‘s] permissive grant of jurisdiction to state courts any
barrier to the U.S. district courts‘ exercise of the general federal-question jurisdiction
they have possessed since 1875.‖].) Principles of concurrent state and federal court
jurisdiction are not relevant to the ―new right–exclusive remedy‖ principle of California
law.

6
 Third, plaintiff asserts that Brewer‘s ―new right–exclusive remedy‖ principle
does not apply because the doctrine relates to remedies (which plaintiff equates with
damages), ―not [to] which court has jurisdiction.‖ That is not what Civil Code section
1428 means. It simply means that where a right is given by statute without any
prescribed remedy, ―‗it may be enforced by any appropriate method recognized by the
general law of procedure.‘‖ (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 4, p. 66
[―‗This principle is crystallized in section 1428 of the Civil Code.‘‖]; see also Palo Alto,
supra, 65 Cal.App.3d at p. 131 [observing that a party aggrieved by violation of a new
right created by statute ―is confined to the statutory remedy if one is provided [citation];
otherwise any appropriate common law remedy may be resorted to,‖ citing Civ. Code, §
1428].)
In sum, section 1722 admits of no ambiguity or doubt: it permits an action in
small claims court for a statutory right that has never existed at common law.
Accordingly, that remedy is exclusive. (Brewer, supra, 168 Cal.App.4th at p. 1252; De
Anza, supra, 94 Cal.App.4th at p. 912; Palo Alto, supra, 65 Cal.App.3d at p. 131.)
Finally, plaintiff contends, by way of footnote, that if he is limited to small
claims court (which he is), ―the more appropriate procedure was for the trial court to
reclassify the case for the small claims division of the court‖ rather than to dismiss the
case. This was error.
Defendants contend that Verizon Online is not a utility and that, while Verizon
California is a public utility, plaintiff ―failed to allege that Verizon California did
anything, much less anything to violate the law.‖ That is not the case. We must accept
as true the allegations of the complaint, and the complaint alleges both defendants
contracted with him to ―upgrade his DSL (internet) speed and change his phone
service,‖ and that a Verizon technician eventually ―performed the necessary adjustments
to reconnect his internet access, and install his new DSL speed and phone service.‖ We
cannot decide on this record which Verizon entities participated in the conduct allegedly
violating section 1722.

7
 We turn then to the question of judicial notice of documents purporting to
establish that Verizon Online is not a utility subject to section 1722. We take no
position on whether, if judicial notice were proper, the documents proffered would
establish that Verizon Online is not a utility within the meaning of section 1722. The
documents defendants offered to establish that Verizon Online provides internet
services, not public utility services, were not properly subject to judicial notice.
The three documents presented were (1) a CPUC publication entitled
―Regulatory Responsibilities of the [CPUC],‖ describing the CPUC‘s responsibility for
regulating telecommunications utilities, among others; (2) a printout of a portion of the
CPUC‘s website called ―Utility Contact System Search,‖ which displays search results
for ―Verizon‖ in the CPUC‘s database for all telephone corporations operating in
California (showing that Verizon California is on the list, but Verizon Online is not);
and (3) Verizon Online‘s ―Terms of Service‖ (demonstrating, defendants asserted, but
without identifying any particular provision, that Verizon Online is an internet service
provider, not a telephone corporation).
Defendants contend the two CPUC documents are subject to judicial notice
under Evidence Code section 452, subdivision (c) as ―[o]fficial acts of the . . . executive
. . . department[]‖ of the State of California. All three documents, they say, are
―publicly available on the internet‖ and therefore are judicially noticeable as ―[f]acts
and propositions that are not reasonably subject to dispute and are capable of immediate
and accurate determination by resort to sources of reasonably indisputable accuracy.‖
(Evid. Code, § 452, subd. (h).) We cannot agree with defendants on either point.
In Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, the Supreme Court
denied the plaintiffs‘ request for judicial notice ―of what appear to be Internet articles
found on a DHS [Department of Health Services] Web site.‖ The articles indicated that
a certain chemical was ―an unregulated chemical that required monitoring.‖ The court
agreed with defendants that ―the articles contain unauthenticated statements with no
indication of author, custodian, date of creation, purpose, reliability, or veracity.‖ (Id. at
p. 279, fn. 12; see also Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364 (Conlan)

8
[refusing to take judicial notice of a California State Auditor‘s report under Evid. Code,
§ 452, subd. (h); ―[b]eyond the mere fact that the report exists, the availability of the
report on the Internet hardly renders the content of the report ‗not reasonably subject to
dispute‘‖].)
To support their claim that documents from the CPUC‘s website are ―official
acts‖ of the State of California, defendants cite Southern Cal. Gas Co. v. City of Vernon
(1995) 41 Cal.App.4th 209, 216 and footnote 3 (taking judicial notice of the CPUC‘s
General Order No. 112-D, establishing minimum requirements for design, etc., of
facilities used for gas transmission and distribution), and Hogen v. Valley Hospital
(1983) 147 Cal.App.3d 119, 125 (taking judicial notice of certain files of the Board of
Medical Quality Assurance relating to a report by the respondents in that case to the
Board and to the charges ultimately brought against the appellant). Neither case
involves, as here, an unauthenticated printout from the Internet, much less a printout of
search results with no indication of who ran the search or of the reliability, date of
creation, or anything else concerning the underlying database. Moreover, the results of
a search of a government database simply cannot be said to be an ―official act‖ of the
State of California.
Defendants cite only one case, Ampex Corp. v. Cargle (2005) 128 Cal.App.4th
1569, to support their contention that the documents—including Verizon Online‘s terms
of service—are judicially noticeable because they are ―publicly available on the
Internet‖ and therefore are ―[f]acts and propositions . . . not reasonably subject to
dispute and . . . capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.‖ (Evid. Code, § 452, subd. (h).) Ampex is not
instructive here. Ampex was a defamation case where defendant posted messages
critical of plaintiff Ampex on an internet message board. Various computer printouts
from Ampex‘s website and the Yahoo message board were offered to show that they
existed in the public eye; they were not offered for the truth of the matter asserted and
thus were not hearsay. So, judicial notice was proper. That is not this case.

9
 Accordingly, the CPUC documents are not subject to judicial notice either as
official acts (Evid. Code, § 452, subd. (c)) or because they are ―publicly available on the
internet‖ and therefore ―not reasonably subject to dispute‖ under Evidence Code
section 452, subdivision (h). Nor is the document stating Verizon Online‘s Terms of
Service subject to judicial notice under that subdivision. It is unauthenticated hearsay.
As Conlan pointed out, the availability of a document on the Internet ―hardly renders
the content of the [document] ‗not reasonably subject to dispute.‘‖ (Conlan, supra, 131
Cal.App.4th at p. 1364.)
Because we are not persuaded judicial notice is proper, the judgment entered by
the trial court will be modified to the extent it purports to preclude plaintiff from suing
Verizon Online in small claims court.
2. Plaintiff’s Other Causes of Action Were Properly Dismissed
Plaintiff contends the trial court erred in dismissing the three other causes of
action he alleged. We disagree.
a. Unfair business practices
An unfair business practices claim under Business and Professions Code section
17200 is an equitable action by which a plaintiff may recover money or property
obtained from the plaintiff through unfair or unlawful business practices. ―By
proscribing ‗any unlawful‘ business practice, ‗section 17200 ―borrows‖ violations of
other laws and treats them as unlawful practices‘ that the unfair competition law makes
independently actionable.‖ (Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 180.) A practice ―may be deemed unfair even if
not specifically proscribed by some other law.‖ (Ibid.) Thus, a practice ―‗―is prohibited
as ‗unfair‘ or ‗deceptive‘ even if not ‗unlawful‘ and vice versa.‖‘‖ (Ibid.)
i. The “unfair” prong
Plaintiff argued he should be granted leave to amend to allege additional facts in
support of the ―unfair‖ prong, seeking an injunction. Plaintiff acknowledged in briefing
and at oral argument that the $600 remedy in Civil Code section 1722 is adequate to
compensate for lost wages and expenses incurred by the delay in restoring and

10
upgrading his internet service. But he wants an injunction to make defendants offer a
four-hour window of service to protect consumers from the annoyance and frustration of
waiting in their homes for defendants‘ services longer than four hours.
Various tests have been applied to define the standard for relief under the
―unfair‖ prong of the UCL. One of them involves ―‗weigh[ing] the utility of the
defendant‘s conduct against the gravity of the harm to the alleged victim.‘‖ (Smith v.
State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718 Another says a
practice is unfair when it ―‗―offends an established public policy or when the practice is
immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.‖‘‖
(Id. at p. 719.) Still another says that an unfair practice predicated on public policy
―‗must be ―tethered‖ to specific constitutional, statutory or regulatory provisions.‘‖
(Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.) And yet another
uses the factors that define unfairness under section 5 of the Federal Trade Commission
Act (15 U.S.C. § 41 et seq.), one of which is that the consumer injury must be
substantial. (Camacho v. Automobile Club of Southern California (2006) 142
Cal.App.4th 1394, 1403.)
Plaintiff has not stated how he might amend the complaint to allege an unfair
business practice under any of these definitions. Plaintiff has never said what additional
facts he might allege. At oral argument, he said he might uncover additional facts in
discovery. But a plaintiff does not need discovery to know what injury he has suffered.
On this record, we are not persuaded plaintiff has or can allege a UCL claim under the
―unfair‖ prong of the statute.
ii. The “unlawful” prong
Plaintiff contends that, since the trial court found he may file a small claims
action under section 1722, then necessarily he can state a UCL claim under the
―unlawful‖ prong.
Section 1722 does not forbid, prohibit, or proscribe any business practice or
declare any conduct to be unfair, unlawful or otherwise against the law. It is a sui
generis statute that requires utilities and a few others to provide their customers with a

11
four-hour period for service connection or repair and caps any recovery for an untimely
repair at $600. In creating the small claims remedy for a practice that nothing in the
common law or any statute has ever prohibited or declared to be an impediment to fair
competition in commercial markets, the Legislature cannot have intended to brand a
violation of section 1722 as ―unlawful‖ within the meaning of the UCL.
b. The CLRA claim
Plaintiff alleged defendants‘ conduct also violated the CLRA, specifically Civil
Code section 1770, subdivision (a)(14). That provision states: ―(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 which results in the sale or lease of
goods or services to any consumer are unlawful: [¶] . . . [¶] (14) Representing that a
transaction confers or involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law.‖
The CLRA provision plaintiff cites does not apply.
First, plaintiff‘s complaint does not rest on a representation or omission in a
transaction ―intended to result or which results in the sale or lease of goods or services.‖
(Civ. Code, § 1770, subd. (a).) Plaintiff already had Verizon internet service. He
contracted ―to upgrade his DSL (internet) speed and change his phone service.‖ After
he made his new contract, his service was disconnected and it took nine days to restore,
all of which was inconvenient for him. But the CLRA was not intended to remedy
postcontractual statements or omissions that result in inconvenience for the customer.
(Cf. Stickrath v. Globalstar, Inc. (N.D. Cal. 2007) 527 F.Supp.2d 992, 996 [CLRA
protects ―only plaintiffs who have suffered harm ‗as a result of‘ defendants‘ unlawful or
unfair practices‖; the plaintiffs failed to allege ―that any of the misrepresentations were
made before Plaintiffs‘ purchase‖ or that the representations were a substantial factor in
the plaintiffs‘ decision to purchase the service].)
Second, even had plaintiff cleared the first hurdle, he stumbles on the second; he
does not and cannot allege defendants ―[r]epresent[ed] that a transaction . . . involv[ed]
. . . obligations which it does not . . . involve . . . .‖ (Civ. Code, § 1770, subd. (a)(14).)

12
An ―obligation‖ is defined in the Civil Code as a ―legal duty, by which a person is
bound to do or not to do a certain thing.‖ (Id., § 1427.) Plaintiff contends there was an
―obligation for [plaintiff] to stay in his home while he awaited service, as this was the
only way his Internet connection would be restored.‖ While as a practical matter, either
plaintiff or someone else had to let the technician enter, that is not the sort of
―obligation‖ to which the CLRA refers, and indeed it is not an ―obligation‖ at all. (See,
e.g., Webster‘s 10th Collegiate Dict. (2001), p. 800, col. 1 [defining ―obligation‖ as ―the
action of obligating oneself to a course of action (as by a promise or vow)‖; ―something
(as a formal contract, a promise, or the demands of conscience or custom) that obligates
one to a course of action‖].) Plaintiff has never alleged defendants told him he had an
―obligation‖ to stay home within any reasonable meaning of that term.
c. The negligence claim
Plaintiff contends that defendants had a legal duty to inform him of the statutory
four-hour window, and that their failure to do so constituted negligence, relying on the
negligence per se doctrine.
First, plaintiff‘s negligence cause of action fails because defendants owed no
duty of care to plaintiff to protect him from the annoyance of being without service and
being inconvenienced by the technician. No such duty exists in common law, and not
every statutory ―duty‖ is a duty to exercise due care. Second, section 1722 does not
create a negligence per se cause of action. Negligence per se is an evidentiary doctrine
under which a person‘s failure ―to exercise due care‖ is presumed if he violated a
statute, the violation ―proximately caused death or injury to person or property‖; the
death or injury ―resulted from an occurrence of the nature which the statute . . . was
designed to prevent‖; and the ―person suffering the death or the injury to his person or
property was one of the class of persons for whose protection the statute . . . was
adopted.‖ (Evid. Code, § 669.)
The negligence per se doctrine does not apply where, as here, there is no cause of
action for negligence. (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430
[―‗[a]n underlying claim of ordinary negligence must be viable before the presumption

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of negligence of Evidence Code section 669 can be employed‘‖; ―‗―it is the tort of
negligence, and not the violation of the statute itself, which entitles a plaintiff to recover
civil damages‖‘‖; the ―presumption of negligence created by Evidence Code section 669
concerns the standard of care, rather than the duty of care‖].) And if that principle were
not enough, in any event the presumption of negligence requires ―death or injury to
person or property.‖ (Evid. Code, § 669, subd. (a)(2); see also California Service
Station etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1178
[―‗Nearly all the cases in which the presumption of negligence under Evidence Code
section 669 has been applied involve what may be termed ―safety‖ statutes, ordinances
or regulations, that is, governmentally designed standards of care intended to protect a
particular class of persons from the risk of particular accidental injuries.‘‖].)
3. Amendment of the Complaint
Finally, plaintiff contends the trial court abused its discretion in not allowing him
to amend his complaint. As to his section 1722 claim, his desire to allege that
defendants are ―retailers‖ under section 1722 is moot in view of our conclusion that
plaintiff‘s only remedy is in small claims court. And as to his other causes of action, he
says only that he could allege ―additional facts‖ without saying what they are. This
does not meet plaintiff‘s burden to show a reasonable possibility the complaint could be
amended to state a cause of action. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

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 DISPOSITION
The judgment of dismissal is modified to eliminate all statements indicating that
Verizon Online is not a utility subject to section 1722 and that plaintiff alleged no facts
against Verizon California. As so modified, the judgment of dismissal is affirmed.
Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.

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