Filed 1/27/23 Licea v. Brown Sugar CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LUIS LICEA,

Plaintiff and Appellant,

v.

BROWN SUGAR, LLC,

Defendant and Respondent.

 B310487

 (Los Angeles County

 Super. Ct. No. 20STCV24404)

Appeal from an order of the Superior Court of Los Angeles

County, Holly J. Fujie, Judge. Affirmed.

Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, 

Victoria C. Knowles and Richard H. Hikida for Plaintiff and 

Appellant.

Barnes & Thornburg, Eric S. Fisher, Seth Alan Gold and 

Kian J. Hudson for Defendant and Respondent.

______________________________
2

Appellant Luis Licea (Licea) appeals from the trial court’s 

April 8, 2021 judgment entered in favor of respondent Brown 

Sugar, LLC (Brown Sugar), following the court’s issuance of a 

November 25, 2020 order sustaining Brown Sugar’s demurrer 

to the entirety of Licea’s first amended complaint (FAC). We 

conclude that (1) Licea’s claims for violation of California’s 

Automatic Renewal Law (ARL), Business and Professions Code 

section 17600 et seq.,1 fail because the ARL does not provide a 

private right of action, and (2) Licea’s claim under California’s 

Unfair Competition Law (UCL), section 17200 et seq., fails 

because the FAC does not allege the causation necessary to 

establish Licea’s standing. We therefore affirm the trial court’s 

April 8, 2021 judgment.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

Brown Sugar “operates an over-the-internet streaming 

service that provides subscribers access to a large library of films

and television shows.” Licea “is a blind California consumer,”

who contends that he “both genuinely wanted to avail himself 

of [Brown Sugar]’s services and, as a consumer advocate for the 

blind, also wanted to determine whether [Brown Sugar] would 

abide by its obligations under California law.”

On June 29, 2020, Licea filed a complaint in the superior 

court against Brown Sugar alleging three causes of action for 

violation of the ARL. The complaint also asserted a cause of 

action for violation of the UCL, premised on the alleged ARL 

violations. Licea alleges that, in 2020, “he accepted a ‘free’ trial 

subscription of an online movie/film/TV show streaming service 

1 All unspecified statutory references are to the Business 

and Professions Code in effect on January 1, 2020.
3

and related product from Brown Sugar.” He contends that Brown 

Sugar’s free trial offer violated the ARL by, inter alia, failing 

to include the automatic renewal and free trial offer terms in a 

“clear and conspicuous” manner, charging his debit card without 

first obtaining his “affirmative consent” to the automatic renewal

offer terms, and failing to provide an acknowledgment that 

includes the automatic renewal offer terms and cancellation 

policy. (Boldface omitted.)

As relevant to this appeal, Licea alleged that he “has 

standing to pursue th[e UCL] claim because he suffered injury 

in fact and has lost money or property as a result of [Brown 

Sugar]’s actions as set forth herein. [Licea] accepted [Brown 

Sugar]’s free trial offer but was later charged monies in violation 

of the law, thus causing an actual injury to [Licea].” Licea

alleged further, in the portion of the complaint concerning 

the alleged ARL violations, that he “would like to use [Brown 

Sugar]’s services again in the future and will likely do so, but 

would like to ensure that [Brown Sugar] offers such services 

fairly and in compliance with its obligations under California 

law.”

On July 31, 2020, Brown Sugar removed the action 

to federal district court2 and then, on August 14, 2020, filed a 

motion to dismiss the complaint. Brown Sugar argued, inter alia, 

that Licea lacked standing to pursue his UCL claim because 

(1) he admitted in his complaint that, once Brown Sugar makes 

the required ARL disclosures, he likely will use Brown Sugar’s 

services in the future, and (2) this admission demonstrates 

that Brown Sugar’s alleged failure to make the required ARL 

2 Licea v. Brown Sugar LLC (C.D.Cal. Oct. 5, 2020, 

No. 2:20-CV-06916).
4

disclosures did not cause any injury to Licea. Rather than oppose 

the motion to dismiss, Licea filed an amended complaint in the 

district court action on August 26, 2020. The amended complaint 

revised the ARL causes of action and added more specificity 

concerning how Brown Sugar allegedly violated the ARL;

however, notwithstanding Brown Sugar’s arguments challenging 

Licea’s standing to pursue his UCL claim, the amended 

complaint repeated nearly verbatim the allegations from the 

original complaint that Licea “would like to use [Brown Sugar]’s 

services again in the future after [Brown Sugar] complies with 

California law, and will likely do so in light of the quality of 

the content of [Brown Sugar]’s product or service, but would like 

to ensure that [Brown Sugar] offers such services fairly and in 

compliance with its obligations under California law.” Brown 

Sugar therefore filed a motion to dismiss the amended complaint 

on September 8, 2020, again arguing, inter alia, that these

allegations constituted an admission that Brown Sugar’s alleged 

failure to provide the required ARL disclosures did not cause any 

injury to Licea, and that Licea thus lacked standing to pursue a 

claim under the UCL.

On October 5, 2020, without ruling on the pending motion 

to dismiss, the district court remanded the case to the superior 

court for lack of subject matter jurisdiction. That same day,

Licea filed a first amended complaint in the superior court 

action—the operative complaint for purposes of this appeal.3

3 Because Licea filed an amended complaint in the 

district court action, Brown Sugar contends that the FAC 

should be captioned “second amended complaint,” and that 

Licea improperly filed the amended pleading without leave

of court. For simplicity, however, we refer to Licea’s amended 

complaint filed in the superior court as the “FAC.”
5

Like the original and amended complaints, the FAC asserts three 

causes of action under the ARL against Brown Sugar: (1) “failure 

to present automatic renewal offer terms or continuous service 

offer terms clearly and conspicuously and in visual proximity 

to the request for the consent to the offer,” in violation of 

section 17602, subdivision (a)(1); (2) “failure to obtain consumer’s 

affirmative consent before subscription charges are imposed,” 

in violation of sections 17602, subdivision (a)(2) and 17603; and 

(3) “failure to provide acknowledgment with automatic renewal 

offer terms and cancellation policy,” in violation of section 17602, 

subdivisions (a)(3) and (b). (Boldface and capitalization omitted.) 

In addition, the FAC alleges a fourth cause of action against 

Brown Sugar for violation of the UCL, premised on a subset of 

the alleged ARL violations.

The FAC repeats the allegations in the first two complaints

that (1) “[Licea] would like to use [Brown Sugar]’s services again

in the future after [Brown Sugar] complies with California law, 

and will likely do so in light of the quality of the content of

[Brown Sugar]’s product or service, but would like to ensure 

that [Brown Sugar] offers such services fairly and in compliance 

with its obligations under California law,” and (2) “[Licea]

accepted [Brown Sugar]’s free trial offer, but was later charged 

monies in violation of the law, thus causing an actual, economic 

injury to [Licea].” The FAC, however, includes the following new

allegation: “[Licea] would not have consented to the free trial 

offer if [Brown Sugar] had made the appropriate disclosures 

required by the ARL.”

On October 20, 2020, Brown Sugar filed a demurrer to 

the entirety of Licea’s FAC, along with a supporting request for 

judicial notice. Brown Sugar argued that Licea’s ARL claims

should be dismissed because (1) the ARL does not provide a 
6

private right of action, and (2) alternatively, Brown Sugar is 

exempt from the ARL, pursuant to section 17605, subdivision (b).

With respect to the UCL cause of action, Brown Sugar argued 

that Licea failed to state a claim because (1) the UCL claim “is 

based entirely upon the ARL claim, and the ARL claim fails,” 

and (2) Licea “fails to allege an injury in fact and therefore lacks 

standing.” In support of the latter argument, Brown Sugar filed 

a motion to strike the new allegation in the FAC that “ ‘[Licea] 

would not have consented to the free trial offer if [Brown Sugar] 

had made the appropriate disclosures required by the ARL.’ ” 

Brown Sugar argued that this allegation directly contradicts 

Licea’s allegations that he “would like to use [Brown Sugar]’s 

services again in the future after [Brown Sugar] complies with 

California law, and will likely do so in light of the quality of the 

content of [Brown Sugar]’s product or service.”

Licea filed an opposition to the demurrer on November 12, 

2020, and in support of his opposition, requested that the court

take judicial notice of certain legislative history relating to

Senate Bill No. 340, the bill that became the ARL. Licea also 

opposed Brown Sugar’s motion to strike. He argued, inter alia,

that the new allegation in the FAC was not inconsistent with 

his earlier allegations: “There is nothing contradictory about

[the earlier allegations] . . . . [¶] . . . Fairly read, [they are]

intended to mean that although [Licea] is interested in using 

[Brown Sugar]’s services again in the future, such usage is

contingent upon [Brown Sugar]’s compliance with the ARL. 

In other words, if [Brown Sugar] fails to comply with the ARL, 

then [Licea] shall definitely not use [Brown Sugar]’s services 

again in the future.” (Boldface and italics omitted.)

At the November 25, 2020 hearing on Brown Sugar’s 

demurrer and motion to strike, the trial court granted the 
7

parties’ requests for judicial notice. The court then sustained

the demurrer with leave to amend. The court also granted 

the motion to strike, “[d]ue to the demurrer to each cause 

of action in the FAC being sustained.” Licea represented at 

the November 25, 2020 hearing that he would not be filing an 

amended complaint, and on April 8, 2021, the court dismissed 

the action and entered judgment in favor of Brown Sugar. 

On January 22, 2021, Licea filed a notice of appeal 

from the court’s November 25, 2020 minute order sustaining 

Brown Sugar’s demurrer and motion to strike. Although 

the November 25 order is nonappealable, Licea subsequently 

provided us with a copy of the April 8, 2021 final judgment. 

We exercise our discretion to construe Licea’s notice of appeal 

as taken from that appealable judgment. (See, e.g., Groves v. 

Peterson (2002) 100 Cal.App.4th 659, 666, fn. 2 [“[w]e liberally 

construe [the] notice of appeal from the order sustaining the 

demurrer, a nonappealable order, to be from the subsequent 

judgment of dismissal”].)

DISCUSSION

A. Standard of Review

We review a trial court’s decision sustaining a demurrer 

de novo. (Walgreen Co. v. City and County of San Francisco

(2010) 185 Cal.App.4th 424, 433.) We assume the truth of the 

factual allegations in the operative complaint and, based on those 

allegations, determine whether a valid cause of action is stated 

under any legal theory. (See Doan v. State Farm General Ins. Co.

(2011) 195 Cal.App.4th 1082, 1087−1091.)
8

B. Overview of ARL

“California’s automatic renewal law”—codified in 

sections 17600 through 17606—“was enacted ‘to end the practice

of ongoing charging of consumer credit or debit cards . . . without 

the consumers’ explicit consent for ongoing shipments of a

product or ongoing deliveries of service.’ ” (Mayron v. Google LLC

(2020) 54 Cal.App.5th 566, 570 (Mayron), review den. Dec. 9, 

2020, S265116, citing § 17600.) “The law requires a consumer’s 

affirmative consent to any subscription agreement automatically 

renewed for a new term when the initial term ends. [Citation.] 

It further requires ‘clear and conspicuous’ disclosure of the 

offer terms, and an ‘easy-to-use mechanism for cancellation.’ ” 

(Mayron, supra, at p. 570, quoting § 17602, subds. (a) & (b).) 

In addition, the ARL provides that “[i]n any case in which 

a business sends any goods, wares, merchandise, or products to 

a consumer, under a continuous service agreement or automatic 

renewal of a purchase, without first obtaining the consumer’s 

affirmative consent as described in [s]ection 17602, the goods, 

wares, merchandise, or products shall for all purposes be deemed 

an unconditional gift to the consumer.” (§ 17603.)

C. The ARL Does Not Afford a Private Right of 

Action

The trial court sustained Brown Sugar’s demurrer to the

ARL claims because it concluded that the statute does not confer

a private right of action. We agree.

A private right of action does not exist under a California 

statute unless the state Legislature has manifested its intent 

to create one. (See Lu v. Hawaiian Gardens Casino, Inc. (2010) 

50 Cal.4th 592, 596 (Lu).) “Such legislative intent, if any, is 

revealed through the language of the statute and its legislative 
9

history. [Citation.] [¶] A statute may contain ‘ “clear, 

understandable, unmistakable terms,” ’ which strongly and 

directly indicate that the Legislature intended to create a 

private cause of action. [Citation.] For instance, the statute 

may expressly state that a person has or is liable for a cause of 

action for a particular violation. [Citations.] Or, more commonly, 

a statute may refer to a remedy or means of enforcing its 

substantive provisions, i.e., by way of an action. [Citations.] If, 

however, a statute does not contain such obvious language, resort 

to its legislative history is next in order.” (Id. at pp. 596−597, 

fn. omitted.)

We therefore first consider whether the ARL contains 

“ ‘ “clear, understandable, unmistakable” ’ ” language that 

“strongly . . . indicate[s]” a legislative intent to provide a private 

right of action. (Lu, supra, 50 Cal.4th at p. 597.) Section 17600

of the ARL, titled “legislative intent,” is silent on the issue, 

stating only: “It is the intent of the Legislature to end the 

practice of ongoing charging of consumer credit or debit cards

or third party payment accounts without the consumers’ explicit

consent for ongoing shipments of a product or ongoing deliveries 

of service.” (§ 17600.) Section 17604 of the ARL, titled “violation; 

civil remedies,” similarly is devoid of any express reference 

to a private right of action. It provides, in relevant part, 

“[n]otwithstanding [s]ection 17534, a violation of this article 

shall not be a crime. However, all available civil remedies that 

apply to a violation of this article may be employed.” (§ 17604, 

subd. (a).) We agree with the Sixth District’s conclusion in 

Mayron that, although section 17604, subdivision (a)’s reference 

to “all available civil remedies” might mean “that a private 

party can sue for any remedies available under the civil law” 

(Mayron, supra, 54 Cal.App.5th at p. 571), the language also 
10

can support the opposite inference—namely, “an intent not 

to create a new cause of action[,] but to require enforcement 

through existing means (such as through [section] 17200 et seq., 

which allow individuals harmed by unlawful business practices 

to seek restitution and injunctive relief).” (Mayron, supra, 

54 Cal.App.5th at p. 572.) We thus conclude that the ARL 

does not contain “clear, understandable, unmistakable” language 

suggesting that the Legislature intended the ARL to confer a 

private right of action. (Lu, supra, 50 Cal.4th at p. 598.)

Having so concluded, we next consider whether legislative 

history reveals an intent that the ARL afford a private right of 

action. (Lu, supra, 50 Cal.4th at p. 597.) Here again, we find 

Mayron’s analysis persuasive: “The legislative history of the 

automatic renewal law contains no clear statement about an 

individual’s right to sue under the statute. There is no mention 

of a private right [of] action at all. . . . [To the contrary, in the

April 14, 2009 Senate Judiciary Committee bill analysis for 

Senate Bill No. 340,] [u]nder a heading that reads, ‘[r]emedies 

available under the bill’—where one would expect reference to 

a private right of action if one were contemplated—[the analysis] 

instead notes violations can be enforced through section 17200

[the UCL], which allows a private party to ‘bring a civil action 

for injunctive relief and/or for restitution of profits that the 

defendant unfairly obtained from that party.’ [Citation.] The 

legislative history’s reference to enforcement by way of a different 

statute is a strong indication that no independent private right 

of action was intended by the new law.” (Mayron, supra, 54 

Cal.App.5th at pp. 573−574.)

Thus, like the Mayron court, we “see[ ] no clear indication 

of intent to create a private right of action in either the statutory 

text or its legislative history,” and we therefore “conclude there is 
11

no such right under the [ARL].” (Mayron, supra, 54 Cal.App.5th 

at p. 573.)

Licea’s arguments in opposition do not convince 

us otherwise. First, Licea contends that section 17603’s 

“unconditional gift” provision demonstrates that “the Legislature

intended to create a private right of action by enacting the 

ARL.” We agree with the conclusion in Mayron, however, that

section 17603 “provides only a passive right to retain any 

products received from a violator, rather than a right to pursue 

a refund of fees a claimant could show had been paid.” (Mayron, 

supra, 54 Cal.App.5th at p. 572.) Licea insists that Mayron’s 

analysis is flawed because it “offers no explanation [of] how ‘the 

goods, wares, merchandise, or products’ received by a California 

consumer can constitute an ‘unconditional gift’ . . . if [a] merchant 

is permitted to retain the harmed consumers’ money.” But it 

does not follow from the absence of a private right of action 

under the ARL that a merchant who violates the statute will

be permitted to retain consumers’ payments. Consumers’ funds 

can be recouped in an action brought by the Attorney General 

or brought by the aggrieved consumers themselves via a claim

under another statute, such as the UCL, provided the consumers 

meet the requisite standing requirements (discussed, post). 

We thus find unpersuasive Licea’s argument that 

“ ‘reason, practicality, and common sense’ ” dictate that we 

interpret section 17603 as evidencing the Legislature’s intent 

to create a private right of action under the ARL. And we 

therefore necessarily reject Licea’s related arguments that 

we should disregard Mayron and other decisions4 holding that 

4 These decisions include Johnson v. Pluralsight, LLC (9th 

Cir. 2018) 728 Fed.Appx. 674 (Johnson) and Roz v. Nestle Waters 
12

the ARL confers no private right of action because (1) they 

do not interpret section 17603’s “unconditional gift” provision 

as supporting the existence of such a right, and (2) they focus 

their analysis on legislative history predating the addition of

the ”unconditional gift” provision to Senate Bill No. 340 on 

June 10, 2009. 

Moreover, Licea’s latter argument fails for the additional 

reason that even the legislative history post-dating the June 10, 

2009 addition of the “unconditional gift” provision to Senate Bill 

No. 340 does not suggest any legislative intent to create a private 

right of action under the ARL. We find persuasive the summary 

and analysis of this legislative history set forth in Lopez v. Stages

of Beauty, LLC (S.D.Cal. 2018) 307 F.Supp.3d 1058 (Lopez)—a 

case in which plaintiff’s counsel advanced the same arguments it 

makes here. After quoting the language from the April 14, 2009 

Senate Judiciary Committee bill analysis indicating that the ARL 

can be enforced through the UCL (discussed in Mayron, ante), 

the Lopez court explained: “Plaintiff asserts that this quotation 

cannot be used to interpret the California Legislature’s intent 

because it ‘was issued prior to the key amendment (including 

for the first time an “unconditional gift” provision) to [Senate Bill

No.] 340.’ . . . However, the [June 24, 2009] Assembly Committee 

on Judiciary bill analysis . . . recognizes that the ARL would 

include a provision deeming goods, wares, merchandise, or

products sent to a consumer under a continuous service or 

automatic renewal in violation of the ARL as an unconditional 

gift. . . . The analysis also provides that ‘all civil remedies that 

apply to a violation may be employed,’ and lists ‘existing law,’ 

North America, Inc. (C.D.Cal. Jan. 11, 2017, No. 2:16-CV-00418-

SVW-JEM) [2017 WL 132853].
13

including the following . . . Business [and] Professions Code 

sections: [section] 17200 et seq. (the UCL), [section] 17500, 

[section] 17534, [section] 17536, [section] 17204, [section] 17203, 

and [section] 17206. [Citation.] Thus, the committees’ bill 

analyses specifically contemplate that consumers who suffer[ ]

an injury by violations of the ARL can seek relief under other 

statutory provisions, including the UCL.” (Lopez, supra, 307 

F.Supp.3d at p. 1068.) We find unconvincing Licea’s assertion 

that the bill analyses’ “reference[ ] to ‘existing law’ . . . was 

merely explaining how and why [Senate Bill No.] 340 would 

change existing law” (capitalization omitted), and we therefore 

agree with the Lopez court, that along with the text of the ARL

itself, “[t]hese analyses . . . ‘strongly support[ ] a Legislative 

intent to pursue causes of action for violations of [the ARL] under 

existing laws.’ [Citation.]” (Lopez, supra, at p. 1068.)

5

Second, Licea urges that a private right of action 

exists under the ARL pursuant to sections 17535 and 17604, 

subdivision (a). Section 17535 provides, in relevant part: “Any 

person, corporation, firm, partnership, joint stock company, or 

5 Also unavailing is Licea’s contention that, by considering

the June 24, 2009 Assembly Committee on Judiciary bill 

analysis, the district court in Lopez necessarily “abandoned any 

reliance upon the [April 14, 2009] Senate Judiciary Committee’s

bill analysis.” Licea urges that this “aspect of Lopez is highly 

significant because such document was expressly cited and

relied upon as the sole relevant legislative history” in other 

federal decisions finding no private right of action under the 

ARL. (Boldface and capitalization omitted.) As the portion of

the Lopez decision quoted above makes clear, however, the Lopez

court relied on both the April 14 and the June 24, 2009 analyses 

in reaching its conclusion that the ARL confers no private right 

of action.
14

any other association or organization which violates . . . this 

chapter may be enjoined by any court of competent jurisdiction. 

The court may make such orders or judgments . . . as may be 

necessary to prevent the use or employment . . . of any practices 

which violate this chapter, or which may be necessary to restore 

to any person in interest any money or property, real or personal, 

which may have been acquired by means of any practice in this 

chapter declared to be unlawful. [¶] Actions for injunction under 

this section may be prosecuted by the Attorney General . . . or 

by any person who has suffered injury in fact and has lost money 

or property as a result of a violation of this chapter.” (§ 17535.) 

Licea argues that because “[section] 17535 provides relief against 

any person or entity which violations ‘this chapter,’ ” and “the

California Legislature intentionally placed the ARL within 

the same chapter as [section] 17535,” “the ARL . . . [therefore] 

provides consumers with remedies of injunctive relief and 

restitution via [section] 17535.” Licea’s argument with respect 

to section 17604, subdivision (a) is similar. As noted, ante, 

that section provides: “Notwithstanding [s]ection 17534, [which 

establishes criminal liability for certain violations,] a violation 

of this article shall not be a crime. However, all available

civil remedies that apply to a violation of this article may be 

employed.” (§ 17604, subd. (a).) Licea urges that “[t]he reference 

to ‘this article’ is a reference to Article 9, which only contains 

the ARL statutes. In other words, the California Legislature 

carefully exempted any criminal liability for ARL violations

via [section] 17604[, subdivision] (a), but allowed all other 

provisions including civil remedies (including the remedies 

in [section] 17535) for violations of the ARL to apply.”

Like the district court in Lopez, however, we conclude 

that Licea “ ‘misse[s] a crucial distinction between the existence 
15

of a private right to enforce [the ARL] (such as under the UCL

[False Advertising Law (FAL)], and/or [section] 17535), and 

the existence of an independent cause of action under [the ARL] 

itself.’ [Citation.] Section 17535 ‘explicitly authorizes a private 

right of action by “any person” for violations of [chapter 1 of . . . 

Business and Professions Code, which includes the ARL].’ 

[Citation.] However, by stating actions ‘under this section may be 

prosecuted by . . . any person who has suffered injury in fact,’ the 

California Legislature clarified its intent ‘that such a cause of 

action be pursued under [section] 17535 itself’ and not the ARL.

[Citations.]” (Lopez, supra, 307 F.Supp.3d at p. 1067.) And as 

discussed, ante, section 17604, subdivision (a)’s reference to “ ‘all 

available civil remedies’ ” is consistent with a legislative intent 

“to require enforcement through existing means,” such as the 

UCL. (Mayron, supra, 54 Cal.App.5th at p. 572.) 

Third, Licea argues that the ARL confers a private right 

of action because the statute’s legislative history “indicates 

that the UCL and FAL were perceived to be inadequate” for

protecting consumers and because the ARL is a “remedial 

statute” that must be “broadly construed” to effectuate its 

purpose. (Boldface and capitalization omitted.) But Licea fails 

to explain why the enforcement gap the Legislature intended 

the ARL to address cannot be closed through an action brought 

by the Attorney General or via private suits brought under 

other statutes, such as the UCL, that make ARL violations 

independently actionable. (See Mayron, supra, 54 Cal.App.5th 

at p. 574 [“[p]laintiff urges that outcome [i.e., finding no private 

right of action] is contrary to the remedial purpose of the statute 

and will undermine its consumer protection function. But the 

automatic renewal law can be enforced with an action brought 

by the Attorney General. A private individual can also pursue 
16

enforcement through an unfair competition lawsuit, if economic 

loss resulted from the violation”].)

Fourth, and finally, Licea contends that “multiple federal 

courts” have recognized a private right of action under the ARL,

pointing to the decisions in Kissel v. Code 42 Software, Inc.

(C.D.Cal. Apr. 14, 2016, No. SACV 15-1936-JLS (KESx)) [2016 

WL 7647691 at pp. *6−*7], In re Trilegiant Corp., Inc. (D.Conn. 

2014) 11 F.Supp.3d 82, 126, Noll v. eBay, Inc. (N.D.Cal. May 30, 

2013, No. 5:11-CV-04585-EJD) [2013 WL 2384250 at p. *6], 

and Noll v. eBay, Inc. (N.D.Cal. 2015) 309 F.R.D. 593, 600.

We note, as an initial matter, that we are not bound by any of 

these decisions. Moreover, we find persuasive Lopez’s analysis 

distinguishing the cases: “[T]he [c]ourt disagrees with each of 

these cases. For example, Kissel failed to distinguish between 

the existence of a private right to enforce the ARL through 

existing law, like the UCL, and the existence of an independent 

cause of action under the ARL itself. [Citation.] Additionally, In 

re Trilegiant Corp. considered whether the provisions of the ARL 

could be enforced by out-of-state consumers against California 

businesses and did not directly analyze whether the ARL creates 

a private right of action. [Citation.] Similarly, the Noll cases 

also found that the ARL limited recovery to California consumers 

without directly analyzing whether the ARL creates a private 

right of action for California consumers.” (Lopez, supra, 307 

F.Supp.3d at p. 1068, fn. 2.)6

6 In light of our conclusion that Kissel’s reasoning is 

flawed, we reject Licea’s argument that Mayron is “unpersuasive” 

because it fails to address Kissel.
17

Accordingly, we conclude that the ARL does not confer 

a private right of action, and Licea’s claims under the ARL 

therefore fail.7

D. The UCL Claim Does Not Adequately Allege 

Causation

The UCL “ ‘ “borrows” violations from other laws by making 

them independently actionable as unfair competitive practices.’ ” 

(Mayron, supra, 54 Cal.App.5th at p. 574, quoting Korea Supply 

Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) 

“The unfair competition statutes come with an express standing 

requirement, however. An action can be brought only ‘by a 

person who has suffered injury in fact and has lost money or 

property as a result of the unfair competition.’ [Citation.] It is

not enough that a plaintiff lost money; to have standing, there 

must be a causal link between the unlawful practice and the 

loss.” (Ibid., quoting § 17204).

Here, Licea alleges that Brown Sugar did not provide 

certain disclosures required under the ARL. But “[t]o establish 

standing, [Licea] would also need to allege that he ordered 

[Brown Sugar’s services] but would not have done so had the 

disclosures been provided.” (See Mayron, supra, 54 Cal.App.5th

at pp. 574−575.) Instead, in each of his complaints, including the 

operative FAC, Licea alleges precisely the opposite—namely, that 

7 Our conclusion renders unnecessary consideration of 

Brown Sugar’s argument that section 17603 “does not apply 

to intangible services” such as those it offers. We also need not 

address Brown Sugar’s contention that it is exempt from the ARL

because it and its parent company are regulated by the Federal 

Communications Commission, or Licea’s related contention that 

the trial court erred in taking judicial notice of certain materials

Brown Sugar cites in support of its exemption argument.
18

he “would like to use [Brown Sugar]’s services again in the future 

after [Brown Sugar] complies with California law [i.e., makes 

the requisite disclosures under the ARL], and will likely do so in 

light of the quality of the content of [Brown Sugar]’s product or 

service.” As Brown Sugar persuasively argues, these allegations 

suggest that Licea “would have purchased and maintained 

[Brown Sugar’s services] even if [Brown Sugar] had complied 

with the [ARL]” (see Mayron, supra, 54 Cal.App.5th at

pp. 574−575)—a concession by Licea that the alleged absence 

of required ARL disclosures did not cause any injury. This 

admission is fatal to Licea’s standing to pursue a UCL claim, 

and distinguishes the facts here from the cases on which Licea 

relies. (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 

310, 317 (Kwikset) [“plaintiffs who can truthfully allege they 

were deceived . . . into spending money to purchase the product, 

and would not have purchased it otherwise, have ‘lost money or 

property’ . . . and have standing to sue” under the UCL]; Johnson, 

supra, 728 Fed.Appx. at p. 677 [containing no indication that 

plaintiff admitted he would have purchased a subscription from 

defendant had defendant complied with the ARL]; Davidson v. 

Kimberly-Clark Corp. (9th Cir. 2018) 889 F.3d 956, 966 [involving 

alleged violation of FAL and containing no indication that 

plaintiff admitted she would have purchased the product 

irrespective of the allegedly false advertising].)

Moreover, Licea cannot rely on his new allegation in the 

FAC—added only after Brown Sugar challenged his standing 

under the UCL— that he “would not have consented to the 

free trial offer if [Brown Sugar] had made the appropriate 

disclosures required by the ARL” because it contradicts his 

earlier allegations conceding that he likely would have purchased 

Brown Sugar’s services even had Brown Sugar made the required 
19

ARL disclosures. (See Banis Restaurant Design, Inc. v. Serrano

(2005) 134 Cal.App.4th 1035, 1044 [“[W]hen a complaint contains 

allegations that are fatal to a cause of action, a plaintiff cannot 

avoid those defects simply by filing an amended complaint 

that omits the problematic facts or pleads facts inconsistent 

with those alleged earlier. [Citations.] Absent an explanation 

for the inconsistency, a court will read the original defect into 

the amended complaint, rendering it vulnerable to demurrer 

again.”].)8 Finally, Licea’s argument that he need not allege 

actual reliance is a red herring. Brown Sugar does not contend 

that Licea failed to allege actual reliance, but that he failed to 

allege any form of causation whatsoever. Licea agrees that he 

must allege facts demonstrating causation to establish standing 

under the UCL but, as set forth, ante, he has failed to do so.

Accordingly, because we conclude that the ARL confers 

no private right of action and Licea failed adequately to allege 

a violation of the UCL, the trial court correctly sustained Brown 

Sugar’s demurrer to the FAC. We therefore affirm the trial 

court’s judgment in favor of Brown Sugar. 

8 Because we disregard this new allegation for purposes of 

our analysis, we need not address Licea’s contention that the trial 

court erred by striking the allegation from the FAC on another 

ground, or Brown Sugar’s related contention that Licea waived 

his right to challenge the court’s ruling on the motion to strike.
20

DISPOSITION

We affirm the trial court’s April 8, 2021 judgment. 

Respondent Brown Sugar, LLC is awarded its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

WEINGART, J.