Veera v. Banana Republic, LLC

Decision Date15 December 2016
Docket NumberB270796
CourtCalifornia Court of Appeals Court of Appeals
Parties Sajid VEERA et al., Plaintiffs and Appellants, v. BANANA REPUBLIC, LLC, Defendant and Respondent.

Jones, Bell, Abbott, Fleming & Fitzgerald, William M. Turner, Asha Dhillon, Los Angeles; Grignon Law Firm, Anne M. Grignon and Margaret M. Grignon for Plaintiffs and Appellants.

Morrison & Foerster, David F. McDowell and Miriam A. Vogel, Los Angeles, for Defendant and Respondent.

WILLHITE, Acting P.J.Plaintiffs Cherilyn DeAguero, Sean Bose, and Rakhee Bose filed a putative class action against Banana Republic, LLC, a clothing and accessories retailer with stores throughout California, alleging that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not disclose that the discount applied only to certain items. Plaintiffs alleged causes of action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq. ) (UCL), the False Advertising Law (Bus. & Prof. Code, § 17500 et seq. ) (FAL)1 and the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq. ) (CLRA). In opposition to Banana Republic's summary judgment motion, plaintiffs produced evidence that in reliance on the allegedly false advertising, they were lured to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, plaintiffs were told for the first time that the advertised discount did not apply to their chosen merchandise. Having waited in line to purchase the selected items, and out of frustration and embarrassment, they ultimately bought some (but not all) of the items they chose even though the discount did not apply. The trial court granted summary judgment in favor of Banana Republic, concluding that plaintiffs lacked standing because they failed to raise a triable issue whether they suffered injury in fact and lost money or property. In this appeal by plaintiffs, we conclude that neither the ground cited by the trial court, nor the other grounds raised in Banana Republic's motion, support summary judgment. Instead, we conclude that on the evidence presented, plaintiffs raised a triable issue whether they lost "money or property sufficient to qualify as injury in fact, i.e., economic injury ," and whether "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 Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, 120 Cal.Rptr.3d 741, 246 P.3d 877 (Kwikset ).) Therefore, we reverse the judgment.

BACKGROUND

I. The Complaint

As here relevant, plaintiffs alleged that they were lured to shop at Banana Republic stores (DeAguero in November 2010, the Boses in December 2011) by store window signs advertising a discount of 40 percent off purchases, with no apparent limit. Though they would not have entered the store but for the advertised discount, they ultimately purchased some (but not all) of their selected items after being informed by a store clerk at the cash register that none of the items they wished to purchase were on sale. They alleged that they had been damaged in the amount they overpaid for the items they bought, and that Banana Republic's deceptive advertising violated the FAL, UCL, and CLRA.

II. Banana Republic's Motion for Summary Judgment

In support of its summary judgment motion, Banana Republic submitted a declaration by a project manager, Debbie Cotton. Cotton described the various promotions offered at Banana Republic stores in December 2011. She explained that Banana Republic employees were instructed about which merchandise was excluded from the promotions and were given handouts to provide to customers about the promotions. According to Cotton, there were no 40 percent off promotions in any Banana Republic stores in California on November 7, 2010, the date DeAguero alleged she saw the sign.

Banana Republic attached copies of the handouts, the display easels (freestanding signs) and the so-called "window clings" that stores were instructed to display to advertise the various promotions in December 2011. Banana Republic also attached a copy of the displays of Banana Republic store windows on November 7, 2010.

Banana Republic moved for summary judgment on three grounds: (1) plaintiffs could not establish they suffered injury as a result of the allegedly misleading advertising; (2) the signs were not misleading, and (3) plaintiffs were not entitled to injunctive relief because plaintiffs did not know whether Banana Republic continued to engage in the contested conduct.

III. Plaintiffs' Opposition

In opposition to summary judgment, plaintiffs produced the following evidence.

A. Cherilyn DeAguero

Cherilyn DeAguero testified in her deposition that on November 7, 2010, she and her 14-year-old daughter were driving past a Banana Republic store on Ventura Boulevard in Studio City. DeAguero saw a large red sign in the store window stating in black letters "40 percent off." She pointed it out to her daughter, and they decided to stop and go shopping. Based on the 40 percent off discount, DeAguero thought she would be able to buy six to eight outfits for her daughter, who required a variety of outfits for auditions in her acting career.

As they entered the store, DeAguero saw another sign on a stand. This sign also was red and stated "40 percent off" in black lettering. DeAguero did not recall if the sign said anything else. She did not recall seeing any signs inside the store while they were shopping, other than one advertising "New arrivals."

After shopping and trying on outfits for approximately 40 minutes, DeAguero's daughter chose eight pieces and wore one new outfit out of the dressing

room. They went to the register, and the sales clerk began ringing up the items. DeAguero was talking excitedly with the customer behind her, stating "This is great, 40 percent off." The clerk told her the items she was purchasing were not 40 percent off. DeAguero replied that the sign indicated everything was 40 percent off, but the clerk said the discount did not apply to the items she chose.

DeAguero became embarrassed, noticing that the line behind her was getting long. She found the experience "humiliating," because she was trying to remain in a budget but did not want to make her daughter return to the dressing

room to remove the outfit she was wearing.

She became angry and asked the clerk why the store had "waste[d] [her] time luring [her] in" and which items were 40 percent off. The clerk explained that there were "selected items" throughout the store, even though DeAguero did not see any signs in the store indicating those items.

DeAguero did not ask to speak with a manager because her daughter was embarrassed and was whispering to stop. She ultimately purchased the new items her daughter was wearing because she did not want to embarrass her. She did not buy the other items because they were not 40 percent off.

B. The Boses

Plaintiffs Sean and Rakhee Bose testified in their depositions that in December 2011, they were shopping at the Dos Lagos mall in Corona.2 They saw red signs containing the words "sale" and "40 percent off" in the windows of the Banana Republic store. The signs were large, covering most of the windows' glass. Sean noticed a smaller sign stating "discount," "sale," and "40 percent off," on a stand at the entrance of the store. He stated in his deposition that there were no other words on the smaller sign. He did not recall if any Banana Republic employees were handing out flyers. Rakhee did not recall if there was either a sign at the entrance or employees handing out flyers.

Sean and Rakhee entered the store and began shopping. They both tried on clothes, selected some items to purchase, and took them to the register to pay. When the sales clerk began ringing up their items, the total seemed too high, so they asked her about the 40 percent discount. The clerk explained that the discount did not apply to everything in the store. They began to argue with her, pointing out that the signs did not state that the discount applied only to certain items.

Rakhee told Sean, "Let's not cause a scene, and let's go." According to Sean, there were at least 15 people in line and he was annoyed and very embarrassed. He ultimately purchased one item (a sweater) because "we had invested all that time and effort, and just to leave with nothing would be a complete and utter waste of energy and time." They did not purchase any other items. They did not ask to speak to a manager or call Banana Republic to complain.

IV. Ruling

The trial court granted Banana Republic's summary judgment motion on the ground that plaintiffs failed to establish any economic injury, reasoning that "[l]ost shopping time" was not "money or property" as required to confer standing.

DISCUSSION

Plaintiffs contend that none of the grounds raised in Banana Republic's motion justified summary judgment. For reasons explained below, we agree.

I. Standard of Review

"A court may grant a summary judgment only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. [Citation.] The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. [Citation.] If the defendant meets this burden, the burden shifts to the plaintiff to present evidence creating a triable issue of material fact. [Citation.] [¶] We review the trial court's ruling on a summary judgment motion de...

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