Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BC358354, Harold I. Cherness, Judge. Affirmed.
Geller & Stewart, Michael S. Geller and Richard A. Stewart for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Barry G. Kaiman; Fredrikson & Byron and Richard J. Wegener for Defendant and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Plaintiff Meghan Kennedy appeals from a judgment of dismissal in favor of defendant Schwan’s Home Service, Inc., entered after the trial court sustained defendant’s demurrer to plaintiff’s lawsuit without leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We accept the allegations in plaintiff’s first amended complaint and accompanying exhibits as true.
On May 12, 2006, Meghan Kennedy (Kennedy) purchased several gift certificates issued by Schwan’s Home Service, Inc. (Schwan’s). The gift certificates were for “Schwan’s Quality Frozen Foods” and came in denominations of $25.00, $10.00, and $5.00. The gift certificates expired one year after the date of issuance, i.e., on May 12, 2007.
On June 20, 2006, Kennedy sent a letter to Schwan’s corporate office notifying it of her belief that the gift certificates violated the Consumers Legal Remedies Act (Civil Code, § 1750 et. seq.) (CLRA). Schwan’s did not correct, or agree to correct, the alleged violations of the CLRA.
On September 12, 2006, Kennedy brought a class action suit against Schwan’s alleging violations of the CLRA and Business and Professions Code section 17200 (UCL). In the first amended complaint, the operative complaint, Kennedy alleged that Schwan’s inclusion of an expiration date on its gift certificates for frozen foods was “illegal,” “unconscionable,” “unlawful,” “unfair” and “fraudulent.”
The trial court sustained a demurrer to the first amended complaint without leave to amend on the ground that Schwan’s gift certificates for “frozen foods” fell within the scope of Civil Code section 1749.5, subdivision (d)(3), which provides that gift certificates “issued for a food product” may contain an expiration date. Kennedy timely appealed from the final order dismissing her complaint.
Unless otherwise specified, all subsequent sections references are to the Civil Code.
DISCUSSION
I. Standard of Review.
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it 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. [Citation.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II. Schwan’s gift certificates do not violate Section 1749.5.
Because we affirm the judgment in favor of respondent Schwan’s, we do not reach the argument raised in its respondent’s brief challenging Kennedy’s standing to sue.
Kennedy alleges that Schwan’s inclusion of an expiration date on its gift certificates violates section 1749.5, and for this reason, constitutes a “deceptive practice” under section 1770 and “unfair competition” under Business and Professions Code section 17200.
Kennedy challenges only the expiration date on Schwan’s gift certificates. She does not contend that the printed format of the expiration date -- “VOID 1 year after issuance” -- violates section 1749.5.
At the time Kennedy brought the underlying action, section 1749.5 provided in pertinent part:
(a) It is unlawful for any person or entity to sell a gift certificate to a purchaser that contains any of the following:
(1) An expiration date.
***
(d) This section does not apply to any of the following gift certificates issued on or after January 1, 1998, provided the expiration date appears in capital letters in at least 10-point font on the front of the gift certificate:
***
(3) Gift certificates that are issued for a food product.
Kennedy argues that the “plain and literal meaning fo [sic] the words of the statute, as well as the legislative intent underlying the statute is that the exemption applies only to gift certificates issued for and denominated in a single, specific food product.” Kennedy uses the examples of a seasonal turkey or ham as a “single, specific food product” that would qualify for the exemption. Kennedy contends the “use of the singular ‘for a food product’ rather than the collective for food products was not unintentional.” Thus according to Kennedy, because Schwan’s certificates are for “frozen foods,” they are not for a specific food product, and thus are not “a food product” under the statute. Because Kennedy raises an issue of statutory interpretation, we review the basic canons.
“When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) “‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . . ’” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) In other words, “[i]f there is no ambiguity or uncertainty in the [statutory] language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning.” (People v. Cochran (2002) 28 Cal.4th 396, 400-401.) We give the statute’s words a “plain and commonsense meaning.” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) Furthermore, “[w]hen two statutes touch upon a common subject, they are to be construed in reference to each other, so as to ‘harmonize the two in such a way that no part of either becomes surplusage.’” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 778.)
Section 1749.5 provides that gift certificates “issued for a food product” may lawfully include an expiration date. Here, Schwan’s gift certificates were for “Schwan’s quality frozen foods.” The plain and commonsense meaning of the words “food product” certainly encompasses frozen foods. Additionally, the Legislature has defined “food product” as “any fish or fish product, meat or meat product, or any other food product,” a definition which also encompasses frozen foods. (Health & Saf. Code, § 112660.) Limiting the phrase “food product” in the Civil Code to only a “specific, single food product” such as a turkey or ham, as Kennedy would have it, would render the Legislature’s broad definition of “food product” in the Health and Safety Code meaningless. In short, “frozen foods” qualifies as a “food product” under section 1749.5, and thus Schwan’s was entitled to include an expiration date on its gift certificates for frozen food. The fact that the Legislature chose to use the singular does not change this conclusion. (See Civil Code, § 14 [“Words used in this code in . . . the singular number includes the plural, and the plural the singular”].)
Because we conclude that Schwan’s gift certificates comply with the clear and unambiguous requirements of section 1749.5, we decline to review the legislative history submitted by Kennedy. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 798 [“‘If the language is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . . ’”]; People v. Cochran, supra, 28 Cal.4th at pp. 400-401 [“If there is no ambiguity or uncertainty in the [statutory] language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning”].)
For the same reason, we deny Kennedy’s pending request for judicial notice of this legislative history.
Schwan’s inclusion of an expiration date on its gift certificates for frozen food does not constitute a “deceptive practice” under section 1770 or “unfair competition” under Business and Professions Code section 17200 as a matter of law. Accordingly, the trial court did not abuse its discretion in sustaining the demurrer to Kennedy’s complaint without leave to amend.
We note that the trial court asked Kennedy’s counsel at the hearing on the demurrer whether there was any additional allegation Kennedy could make that would save her complaint, and counsel answered: “There’s nothing -- we can’t add any facts that are going to change anything, so that’s fine. I’ll give notice.”
III. Kennedy has failed to meet her burden of demonstrating how proposed amendments to her complaint would render it legally sufficient.
As a fallback position, Kennedy maintains that even if we conclude Schwan’s gift certificates complied with section 1749.5, we should nonetheless permit her to amend her complaint to allege “it would still be an unfair business practice to sell these certificates over te [sic] telephone without first disclosing the limitations placed upon them, including the restriction of not allowing cash refunds.”
Generally, “[w]hen a demurrer is sustained without leave to amend the petitioner may advance on appeal a new legal theory why the allegations of the petition state a cause of action.” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259.) Not only does Kennedy ask us to consider a new legal theory on appeal, she asks us to consider new factual allegations altogether -- namely that she purchased the gift certificates over the telephone and Schwan’s failed to disclose over the telephone that they would expire in a year and could not be redeemed for cash.
Assuming it is proper for us to consider these new allegations, Kennedy still has the burden of demonstrating how amending her complaint to include these allegations renders her complaint legally sufficient. (Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655-656 [“plaintiff does bear the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment . . . [and] must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”].) Kennedy has utterly failed in this regard. Kennedy provides absolutely no legal authority, explanation, or argument to support her contention that the failure to disclose a valid expiration date or redemption limitation over the telephone is an unfair business practice. On its face, section 1749.5 does not prohibit the sale of gift certificates over the telephone and it does not require that issuers disclose expiration dates or redemption restrictions when making telephone sales. Section 1749.5 simply requires issuers of gift certificates with valid expiration dates to print those expiration dates “in capital letters in at least 10-point font on the front of the gift certificate,” and Kennedy does not dispute that Schwan’s complied with this requirement. Given her failure to demonstrate how her proposed amendments would cure her defective complaint, we affirm the trial court’s sustaining of the demurrer without leave to amend.
DISPOSITION
We affirm the judgment and award Schwan’s its costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.