may please the court held rosner for palin's since the breeze were filed in these two cases that are before the court today this court decided the case of with the statute itself when we deal with statutory violations we look at the standing requirements are in the statute incans all us the court noted the standing requirements in section three found that standing and the violations are found in vehicle code of section eleven seven one three point one eight subsection a provides nine requirements for selling or advertising a vehicle is certified at issue in this case in gonzalez and in this case is subsection six requiring prior to sale the dealer must provide a buyer with the complete inspection report indicating all the components inspected the court noted though in subsection b of that same statute the statute provides that a violation of any of the nine provisions a one to not is actionable and that's a language so the question before court is is applicable or is actionable i mean is actionable well under the terms that those other statutes provide right  that requires you to show some kind of actual damage two things one not necessarily because i pointed out to the court that in other statutes it says you if you show damages it is actionable we gave the court the rojas versus platen case that said that is that he did not require damages the second i saw that i just heard you used the word actual damages unfortunately carmex and everybody filed to every court his myside of the law in every brief filed before this a quote court carmex side of the law the law is not actual damages as we have supplied in every single case and nothing stops carmex from misrepresenting the law the law is not actual damage  but there's a difference between actual and any we may be angels and you've ever been harmed in some fashion you can't just have like be somebody off the street you're absolutely ok so the sprint talked about any so let's talk let's talk about that we br to death the laws regarding damages i think that one no hose case in one circuit opinion be directly controlling we also brief to death the kwikset kate following those cases there were additional district court cases some of which are very similar to ours there was the even one case well hang on just before you get to the cases i'm let me just understand your theory as to why your client her client oh yeah this is both cases together were  harmed because in a non disclosure case one would normally think that you as a consumer weren't harmed unless disclosure of the true facts would have caused you to make a different decision right in both cases everything was good right they didn't didn't they didn't provide that to your clients before the purchase but let's say that in the individual case cases involving your clients that the disclosure of that required thing that gonzales has said is now required would have shown that actually they did check all those things and they all work just fine so in that scenario i guess that's what i'm wondering why would any consumer in your client shoes if they got what the law required them to get and it showed that everything was a go why would we assume that they would make a different purchasing decision will one will never know because carmex destroyed the actual inspection report they do a do report of two hundred thirty six components in neither case did they find that everything worked in both cases they did repairs on the vehicle which were undisclosed to the consumer but we'll never know because they destroy the evidence the long your harm because the california is established standards for selling a vehicle is certified so to say that if you don't fall the standards you can still be certified is to let car dealers make up their own standards for selling certified vehicles which  defeats the entire purpose of the legislation this is what the court in the the leak a somewhat did to court said well what makes a car certified is being inspected the problem is your honor every vehicle is inspected the vehicle code mandates it the other provision that has to be considered by the court is when the statute was inactive there already existed vehicle code twenty four zero zero seven which said is a violation of law to sell any vehicle in violation of these code provisions so the code says you cannot sell or advertise the vehicle is certified in less you comply with carmex is saying we don't have to comply because under our own standards our vehicle is certified and therefore people are not damages sort of a circular reasoning which the court and applied so if we take the reasoning in leet every every deal can call every vehicle certified because they all inspect the vehicle to some extent you have to under the if you have to check for brake safety lamps so because every cardio inspect every vehicle does that mean they  call every vehicle certified and that was sort of the situation before the legislation was inactive when they put in provisions a one through nine they set forth a statutory framework for selling and advertising vehicles a certified so the vehicle isn't certified and if you know follow that you can't call it and i think it's somewhat similar to one of the district court cases was the soup kind of case you have two possibilities right either above the car not necessarily because in each case the vehicle did have components that needed repair or replacement placement at some point after say no post pre choose to perform and then there's a repair order of all repairs that they prefer they perform none of this is disclosed to the consumer the consumer having for instance found out that a number of items checked were not found to be to be properly repaired and in fact in both cases we have we have car sold that were really in pretty horrible condition one had a transmission that within we started spewing its parts out the other one at the other one immediately started having all sorts of perform are both put in the records for each vehicle if we adopt this sort of standard it basically i mean you know that's my question you're just so set something and then went on to something else they want you have take that the one way you can do that is look at the pirates were sold were merely found to be bold in one case or that within days everything started to malfunction you're placing an impossible standard for plaintiffs to get into their heads when repair orders the car max creates a sheet and it shows on that sheet a summary of all repairs performed on the d s but those are the things that are repaired right you don't they don't tell you because and again i or they destroy the records so to put on a plane if this car max the destroys their actual inspection checklist it's very tobacco company is what they do here if you destroy all the evidence and you say well you don't have the evidence yes that is a problem the actual inspection checklist a two hundred thirty six point list is destroyed by karma as they destroy the evidence of what they found the only and you had a detailed question of counsel about this they destroy that evidence do you question at length about this the only thing they keep is what they choose to repair having destroyed the evidence yes it's hard to pleadings days to allege what they knew what they knew you have to look at what quickly broke down to create an inference and you have i think a shifting of the evan entry burden based upon their destruction of the only evidence you can't really reward them for destroying the evidence and nor can you render a statute basically meaningless here where he said you know reduction in price on sale but the argument was well you paid the price you intended to pay when to abandon anyways and no the ninth circuit completely you said no that isn't proper you're going to you're basically allowing massive fraud in the marketplace labels matter misrepresentations matter at the law prohibits you keep the law says you cannot sell it to certified right and if they win your body under your theory tell me if this is wrong you would say that even if we had the completed checklist right and every single one of those two hundred thirty six items got a green light check no repairs needed right you would say if car max maintained kept that record and you could get access access to through discovery that the mere fact under comes as they didn't provide that to you right yes render their labeling of the car as certified unlawful and so then all your client would have to do is say well i would have bought the car if it hadn't been certified even though we we would be able to know that even if you had gotten everything that they were supposed to provide you no reasonable consumer would have made a different decision right and you're saying even in that case the plaintiff wins i agree well so that's why i guess i don't quite i don't quite f why is that was the list itself is important in the consumer decision let's say car max has a two hundred thirty six point let's say buyer b has a twelve point list the consumerism title to the information  see under the law what the california legislature invision here you know a law that i worked on is that they would be entitled to see prior to making a purchase decision not only the results of what was the law says you cannot sell or advertise the vehicle a certified is due come if you don't comply you got fifteen seconds so if you sell or advertise it as certified you have violate the law if that representation of certification affects the buying decision of the person that is damaged you can't take the statute about words and read a backwards in hindsight thank you to do it well your honor judge watford was bringing up a very very important point if we actually did what we said we did not actually that i have the three puzzle reactions just because it's good because actually i think what you just said harms your case if i were a consumer and i found out that you had tried to repair something let's say three times before you could fix it you know what i probably want to pick the other car but that is it would be material to my purchasing this well your honor i have to make something clear this was not an alignment problem that we worked on before the sale but it does so that when we're done what i'm saying i have two cars that are basically identical one of which i see if you had told me the truth you can to keep going back three times to try to fix the same problem and then finally you said problem solved the other car has a pristine record as between those two cars i'll probably take the one with the person record right well first of all your honor what i'm saying is  proof here that we actually did the inspection there is no proof because there is nothing in the record showing that the problem mr lee complained of after twenty five days was present before your original questions were very much on point and very much supported by the record there is no showing that this problem preexisted the sale again i don't think that matters even i mean even under the most generous theory to you or your client and i understand that the plaintiffs disagree with this but even out of the most generous theory what the if if the plaintiffs came in and said if you had disclosed to me the repair history and it was asked to something that would matter to a reasonable consumer even if it didn't matter if s itself after the sale but if i had known about that before the sale i would have picked a different car they're in business well let me let me give you two points your honor first of all even under gonzales gonzales does not require a narrative of exactly what work was done we have someone who knows it better than any of us probably but i thought gonzales said you had to give them the results of the inspection which in my mind would include the fact that the first time we checked it the damn thing didn't work and we had to fix it well i don't believe certification requires state you give exactly what you did on it and karma actually could govern itself accordingly the uncertainty here is one of the reasons there's a certification request pending but let's look at this case and let's look at what mr leask said if you look at the record i think it's seven forty eight he kind of says i didn't read i expected them to do repairs i wanted them to do repairs it was a used car he'd had a number of marquees before he wanted them to do repairs that was what was important not the name certification it was the underlying inspection and this is a summary judgment there is no general genuine issue of material fact comics did not do what it said it did which is inspect these parts there's no evidence it didn't know how was mr li harmed by getting what he wanted he wanted a vehicle that inspected the fact show it was inspected he wanted a vehicle that had undergone repairs for problems because it was used vehicle it a little bit just like one mile over twenty seven thousand he wanted that he got what he wanted a vehicle had been inspected a vehicle that had been repaired and after twenty five days he came in because it had a problem because being a used vehicle sometimes they develop problems harmonics fixed it using the express warranty it gives an express warranty is actually more than what's required under the certification law all you have to do is not disclaim an implied warranty carmex actually gives an expressed warranty for these  any apparent delving into the kinds of things you're talking about roe you're right your honor standing was briefed essentially in a footnote it was not argued and it's not talked about in detail in the opinion itself  a recent decision on the pending fees motion to sending it back to judge carney says explicitly look there's more to do here the you know that are granted summary judgment i think it's more appropriate to call it partially some within the ninth circuit we have found it to be not to meet the standards of sub par six fair enough but there are other things that have to be dealt with since the issue wasn't of standing which is what we're talking about here standing in the u c l and c l r a n i it was not dealt with directly in gonzales it really doesn't apply here it really doesn't provide any precedent or guidance for us the issue here fully briefed and being discussed again i think the appropriate venue for it is the california supreme court and the reason is that the of course the things where your forum shopping because you lost i'm shopping for the correct forum because even if carmex prevails here even if i get it we get a decision that says you know you're absolutely right there's no stowing a standing here affirmed that helps me in these two cases it doesn't help carmex in the others because we have law going both ways we have the state system is going its own way the federal system has gone in different directions where remember we're here defending decisions  i'm sympathetic to your statement about trying to construe state law but it seems like that this court has construed state law on the ultimate issue of what's required and the only issue that you remain is well how do you get to sue for that gonzales in this case yes you're on so that's the only question is what do you have to sue for and why do we have to ask california about that well because not and i'm not the underlying liability they may change the law they may not like gonzalez i don't know that but at least from your perspective they may not rule that way well i would certainly like to hear the state supreme court weigh in on gonzales which is not the issue we asked for surf occasion we asked for certification on this issue to comply with it now so i mean it seems like the substantive issue has been resolved in the united circuit the only question is how do you get there it seems like that's a bernese it's not going to change your business practice and say well as long as someone doesn't complain early enough on that and plead actual damages we're going to use this form but if they do something else we're going to use a different form well your honor within the ninth circuit the law gonzalez states the law the law in the state of california maybe something different courts have gone in a different way here it is equally important to find out what damage means in this particular context both for car max and it the fact of standing issue may influence the way we do our practice is right now our people are already trained to talk to the people about the forms maybe there's another maybe there's more that will do there i don't know i'm really that they consider and you have made a very good case for why this is important to you or anybody or any other deal well you want to i think i think it's important every dealer in california frankly i think it's important to other people i know you  certainly affect the plainest bar it will certainly it's affect how these cases are brought not only for used cars but for other items that may be labeled as certified or similar but there is no law regarding standing regarding this particular law kwikset doesn't fit because kwikset was a false statement it was these locks were made in the united states and they were not made in the united states here we have a different situation this vehicle was certified you have just been adequately documented and i think judge burns in stelzer decision talks about that very very clearly the standing requirement is key to the way all the businesses in california have do something that may in fact bring these cases down upon you and it's important that that be addressed and i think the place to do is a california supreme court because even if this court goes one way it's still going to be litigated elsewhere and not just by carmex probably by other use dealers to