Lazar v. Hertz Corp.

B. The Act

The trial court sustained without leave to amend Hertz’s demurrer to Lazar’s refusal to rent cause of action alleging a violation of the Act. (See § 51.) It concluded that section 1936 permitted vehicle rental companies to refuse to rent to drivers under age 25. On appeal, Lazar challenges this finding. We independently construe statutory law, as its interpretation is a question of law on which we are not bound by the trial court’s analysis. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692 , 699 [ 170 Cal.Rptr. 817 , 621 P.2d 856 ]; see Baughman v. State of California, supra, 38 Cal.App.4th at p. 187.)

The Act prohibits arbitrary discrimination by businesses on the basis of specified classifications such as age. (§51; see Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 , 1155 [ 278 Cal.Rptr. 614 , 805 P.2d 873 ].) The Act must be liberally construed to accomplish this purpose. (Koire v. Metro Car Wash (1985) 40 Cal.3d 24 , 28 [ 219 Cal.Rptr. 133 , 707 P.2d 195 ]; Winchell v. English (1976) 62 Cal.App.3d 125 , 128 [ 133 Cal.Rptr. 20 ].) Despite this liberal construction, the California Supreme Court has determined that certain types of discrimination are reasonable and thus not arbitrary under the Act. (See Koire v. Metro Car Wash, supra, at p. 30.) Businesses retain the right under the Act to establish reasonable regulations that are rationally related to the services performed and facilities provided. (Harris v. Capital Growth Investors XIV, supra, at pp. 1148, 1153; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 , 737 [ 180 Cal.Rptr. 496 , 640 P.2d 115 , 30 A.L.R.4th 1161 ], cert. den. 459 U.S. 858 [ 103 S.Ct. 129 , 74 L.Ed.2d 111 ]; In re Cox (1970) 3 Cal.3d 205 , 212, 217 [ 90 Cal.Rptr. 24 , 474 P.2d 992 ]; see Roth v. Rhodes (1994) 25 Cal.App.4th 530 , 539 [ 30 Cal.Rptr.2d 706 ].) For example, a landowner may require prospective tenants to meet certain income criteria as long as the policy is applied alike to all persons. (See, e.g., Harris v. Capital Growth Investors XIV, supra, at p. 1155.) Such business practices are not arbitrary, but constitute prudent business practice. The restriction is thus reasonably related to the operation of that business. (See Wynn v. Monterey Club (1980) 111 Cal.App.3d 789 , 797 [ 168 Cal.Rptr. 878 ].)

The Act does not permit courts “to engage in complex economic regulation under the guise of judicial decisionmaking.” (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1168; Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554 , 562-563 [ 53 Cal.Rptr.2d 878 ].) Appellate courts lack the power and the duty to determine the wisdom of economic policy. That is a matter for the Legislature alone. Judicial intervention in such economic issues is inappropriate. (Wolfe v. State Farm Fire

& Casualty Ins. Co., supra, at p. 562 [court declines to involve itself in Act case alleging economic issues]; see Harris v. Capital Growth Investors XIV, supra, at p. 1168, fn. 15; Lazzareschi Inv. Co. v. San Francisco Fed. Sav. & Loan Assn. (1971) 22 Cal.App.3d 303 , 311 [ 99 Cal.Rptr. 417 ].) The California Supreme Court has determined that statutes permitting age-based discrimination do not necessarily violate the Act. (See Schmidt v. Superior Court (1989) 48 Cal.3d 370 , 382-388 [ 256 Cal.Rptr. 750 , 769 P.2d 932 ].) It is against this legal backdrop that we evaluate Lazar’s first claim of error.

The Legislature regulates vehicle rental agreements. (See § 1936.) By state law, the term “authorized driver” for purposes of a vehicle rental agreement means “(A) the renter, (B) the renter’s spouse if that person is a licensed driver and satisfies the rental company’s minimum age requirement, (C) the renter’s employer or coworker if they are engaged in business activity with the renter, are licensed drivers, and satisfy the rental company’s minimum age requirement, and (D) any person expressly listed by the rental company on the renter’s contract as an authorized driver.” (§ 1936, subd. (a)(3).) If the words of a statute are reasonably free of ambiguity and uncertainty, we look no further than those words to determine the meaning of that language. (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810 , 819 [ 226 Cal.Rptr. 81 , 718 P.2d 68 ].) Thus, the legislative scheme anticipates and expressly approves the adoption of minimum age requirements by car rental companies.

Undeterred by the lack of statutory language to support his claim, Lazar argues that we should read into it a requirement that the minimum age to rent a vehicle must be reasonable. When construing a statute, the Legislature admonishes us that a judge’s duty is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted . . . .” (Code Civ. Proc., § 1858; see McAlexander v. Siskiyou Joint Community College (1990) 222 Cal.App.3d 768 , 775 [ 272 Cal.Rptr. 70 ].) We may not speculate that the Legislature meant something other than what it said, nor may we rewrite a statute to make express an intention that did not find itself expressed in the language of that provision. (McAlexander v. Siskiyou Joint Community College, supra, at p. 775.) If there is no ambiguity about the meaning of the language, we must apply the provision according to its terms without further judicial construction. (Kelly v. Yee (1989) 213 Cal.App.3d 336 , 340 [ 261 Cal.Rptr. 568 ]; see Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152 , 155 [ 137 Cal.Rptr. 154 , 561 P.2d 244 ].) We find that the language of section 1936, subdivision (a)(3) is unambiguous and does not contain a reasonableness requirement in the setting of the minimum age to rent.

This conclusion is bolstered by several other maxims of statutory interpretation. First, although section 1936 uses the term “reasonable” in other contexts, it does not do so with reference to the age requirement. (Compare § 1936, subd. (a)(3) with id., subd. (m)(2).) In order to determine the intent of the Legislature, provisions should be read together. (Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at pp. 818-819; City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47 , 54 [ 184 Cal.Rptr. 713 , 648 P.2d 935 ]; American Western Banker v. Price Waterhouse (1993) 12 Cal.App.4th 39 , 50 [ 14 Cal.Rptr.2d 916 ].) When a statute uses a particular term in one part and omits it in another, the omission typically signifies that the Legislature intended a different meaning. (Campbell v. Zolin (1995) 33 Cal.App.4th 489 , 497 [ 39 Cal.Rptr.2d 348 ], cert. den. 516 U.S. 860 [ 116 S.Ct. 169 , 133 L.Ed.2d 110 ]; City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264 , 280 [ 17 Cal.Rptr.2d 845 ]; see People v. Drake (1977) 19 Cal.3d 749 , 755 [ 139 Cal.Rptr. 720 , 566 P.2d 622 ]; People v. Turner (1993) 15 Cal.App.4th 1690 , 1698 [ 19 Cal.Rptr.2d 736 ].) The omission of the term “reasonable” thus appears to indicate an intent not to impose a reasonableness requirement in the minimum age provision.

Second, a more recent provision is typically more persuasive than an older one. (See Schmidt v. Superior Court, supra, 48 Cal.3d at p. 383; Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th 23 , 27 [ 17 Cal.Rptr.2d 340 ].) Section 1936 was enacted in 1988. (See Stats. 1988, ch. 1523, § 1, pp. 5417-5423.) Section 51 dates from 1905 and has been known as the Act since 1959. (See Stats. 1905, ch. 413, § 1, p. 553; Stats. 1959, ch. 1866, § 1, p. 4424.) Thus, section 1936 would prevail over section 51, if the language of those provisions were found to be in conflict.

Third, we give effect to a specific statute relating to a particular subject in preference to a general statute. (See Schmidt v. Superior Court, supra, 48 Cal.3d at p. 383; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392 , 420 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ]; Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977 , 988 [ 44 Cal.Rptr.2d 93 ]; Schmidt v. Southern Cal. Rapid Transit Dist., supra, 14 Cal.App.4th at p. 27.) The legislative regulation of vehicle rental agreements is more specific than the general antidiscrimination provisions of the Act. (Compare § 51 with § 1936.) It is also significant that the Act specifically provides that it must not be construed to confer any right or privilege on a person which is otherwise conditioned or limited by law. (§51.) Hence, that provision anticipates that if there is a conflict between its provisions and those of another statute, the former defers to the latter. For all these reasons, we are confident that section 1936 bars an Act claim of age discrimination on the basis of a refusal to rent vehicles to persons under age 25. Thus, the trial

court properly sustained Hertz’s demurrer without leave to amend on this cause of action. (See Baughman v. State of California, supra, 38 Cal.App.4th at p. 187 [order sustaining demurrer must be affirmed if no liability exists as matter of law]; see also Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1498 [no abuse of discretion to deny leave to amend when defect cannot be cured].)

C. Unfair Competition

The trial court also sustained Hertz’s demurrer without leave to amend to Lazar’s two causes of action alleging refusal to rent in violation of California’s unfair competition law (UCL). (See Bus. & Prof. Code, §§ 17200-17209.) It concluded that section 1936 permitted vehicle rental companies to refuse to rent to drivers under age 25. On appeal, Lazar challenges this conclusion.

The UCL defines unfair competition as any unlawful, unfair or fraudulent business practice and any unfair, deceptive, untrue or misleading advertising. (Bus. & Prof. Code, § 17200; Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553 , 560 [ 71 Cal.Rptr.2d 731 , 950 P.2d 1086 ].) In effect, the UCL borrows violations of other laws—such as the state’s antidiscrimination laws—and makes those unlawful practices actionable under the UCL. (State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093 , 1103 [ 53 Cal.Rptr.2d 229 ]; Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, at pp. 566-567.) In his brief, Lazar argues that his UCL claims are predicated in part on unlawful business practices in violation of the Act. However, we have already determined that Hertz’s conduct did not violate the Act. (See pt. II.B., ante.) As this necessary predicate of his UCL claims does not exist, those two causes of action necessarily fail to state a claim for relief to the extent that they are based on allegations of Act violations. (See Code Civ. Proc., § 430.10, subd. (e).)

Lazar also argues that even if the Act claims fail, that the trial court should still have overruled the demurrers to these two UCL causes of action because Hertz’s refusal to rent also constituted an unfair business practice. (See State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at pp. 1102-1103 [statutory use of disjunctive prohibits both unlawful and unfair acts; unfair conduct provides independent basis of relief].) A business practice cannot be unfair if it is permitted by law. (See Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at p. 560 [defining broad scope of UCL].) The UCL does not apply if the Legislature

cause of action, we independently review the trial court record to determine whether a triable issue of material fact exists. We strictly construe the defendant’s affidavits and liberally construe those of the plaintiff. We accept as fact only those portions of the defendant’s evidence that is not contradicted by tibe plaintiff’s evidence. Thus, we deem the facts alleged by the plaintiff—the party opposing summary adjudication—and the reasonable inferences we can make from those facts to be true. (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373 , 385 [ 62 Cal.Rptr.2d 803 ]; see Buss v. Superior Court (1997) 16 Cal.4th 35 , 60 [ 65 Cal.Rptr.2d 366 , 939 P.2d 766 ]; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868 , 874 [ 191 Cal.Rptr. 619 , 663 P.2d 177 ]; A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427 , 433-434 [ 67 Cal.Rptr.2d 113 ] [summary judgment].) We review those facts and independently determine their effect as a matter of law. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071 , 1083 [ 258 Cal.Rptr. 721 ].) Our task is to determine whether the alleged facts provide any basis for liability on the part of the defendants, regardless of the nature of the cause of action. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110 , 1118 [ 51 Cal.Rptr.2d 251 , 912 P.2d 1198 ] [summary judgment].) A defendant is entitled to summary adjudication if the record establishes that the plaintiff’s cause of action cannot succeed as a matter of law. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 , 1107 [ 252 Cal.Rptr. 122 , 762 P.2d 46 ], cert. den. 490 U.S. 1084 [ 109 S.Ct. 2110 , 104 L.Ed.2d 670 ].)

B. Unfair Competition

The trial court granted summary adjudication to Budget and Alamo on Lazar’s UCL cause of action based on claims of improper surcharges, finding this cause of action meritless. It had earlier overruled a demurrer to this cause of action, but the summary adjudication motion allowed the trial court to consider not just the pleadings, but the evidence proffered by either side when making its ruling. (See Code Civ. Proc., § 437c, subd. (b).)

Again, Lazar claims both unlawful and unfair business practices pursuant to the UCL. The lack of an actionable Act violation underlying his unlawful business practices claim necessarily defeats that aspect of his UCL cause of action. (See Code Civ. Proc., § 430.10, subd. (e); Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at pp. 566-567; State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1103; see also pt. II.B., ante.)

As to his unfair business practices claim, Lazar argues that the surcharges were unfair because they were too high and because the unreasonably high surcharges were assessed only against renters under age 25. In the trial court, Budget and Alamo argued that Lazar’s discovery responses were factually devoid of evidence and thus, he had no evidence to support the factual allegations of his complaint. On appeal, Lazar argues as he did in the trial court that he was not obligated to bring forth any evidence of unfair surcharges in order to survive a summary adjudication motion. We disagree. On a motion for summary adjudication, a defendant may rely on a plaintiff’s factually inadequate discovery answers to seek summary adjudication of a particular cause of action. If plaintiff fails to adduce evidence during discovery to support the factual allegations of his or her complaint, the burden shifts to the plaintiff and the motion may be granted if the plaintiff does not set forth specific facts that show a triable issue of material fact. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 , 590 [ 37 Cal.Rptr.2d 653 ].) Lazar has not put forth any evidence in the trial court or on appeal in support of his claim that the surcharge is unreasonably high or unreasonably imposed on younger drivers such that it constitutes an unfair business practice. As he failed to meet his burden, Budget and Alamo were entitled to summary adjudication in their favor as a matter of law. Thus, the trial court properly granted Budget and Alamo summary adjudication on the unreasonable surcharge cause of action alleging a violation of the UCL. (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107.)

C. The Act

The trial court also sustained a demurrer to Lazar’s cause of action for Act violations based on allegations of unreasonable surcharges. It found that section 1936 permitted vehicle rental companies to impose a surcharge on drivers under age 25. Lazar argues as if the Legislature requires the amount of the surcharge to be reasonable, when in fact the statute requires only that the age limitation for the surcharge be reasonable. (See § 1936, subd. (m)(2).) To the extent that he would have this court read a reasonableness requirement into the surcharge amount provision, we decline to do so.

In various places in section 1936, the Legislature set forth specific dollar or actual cost limitations that vehicle rental agreements may not exceed. (See, e.g., § 1936, subds. (b)(4), (6), (c)(7).) However, in subdivision (m)(2) (permitting a surcharge for drivers of certain ages), the Legislature did not specify any dollar amount or other cost limitation. By implication, the