Filed 2/6/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHERYL DOWNEY et al.,

Plaintiffs and Appellants,

v.

PUBLIC STORAGE, INC.,

Defendant and 

Respondent.

 B291662

 (Los Angeles County

 Super. Ct. No. BC575661)

APPEAL from an order of the Superior Court of Los 

Angeles County, Carolyn B. Kuhl, Judge. Affirmed.

Baker, Burton & Lundy, Brad Baker and Albro Lundy; 

Dale E. Washington; and Raymond Zakari for Plaintiffs and 

Appellants.

Keker, Van Nest & Peters, John W. Keker, Erin E. Meyer, 

Eduardo E. Santacana, Christopher S. Sun; Willkie Farr & 

Gallagher and Simona A. Agnolucci for Defendant and 

Respondent. 

* * * * * *
2

A trial court may certify a class in a proposed class action 

lawsuit only if, among other things, the court finds a “‘community 

of interest’” among the proposed class members (Duran v. U.S. 

Bank National Assn. (2014) 59 Cal.4th 1, 28 (Duran)), which in 

part means that “‘“common questions of law or fact”’” 

“‘“predominate”’” because “the elements necessary to establish 

liability are susceptible of common proof” (Brinker Restaurant 

Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021, 1024 

(Brinker)). Where, as here, a proposed class action lawsuit seeks 

restitution for violations of the Unfair Competition Law (Bus. & 

Prof. Code, § 17200 et seq.) and false advertising law (id., § 17500

et seq.) based on a series of allegedly deceptive advertisements 

offering a special promotional rate but defines the class as 

everyone who received the special promotional rate, must the 

plaintiffs establish that the following “elements” are “susceptible 

of common proof”—namely, (1) that the class members were 

exposed to the advertisements, and (2) that the various 

permutations of the advertisements were deceptive? We conclude 

that the answer is “yes,” and that language in In re Tobacco II 

Cases (2009) 46 Cal.4th 298 (Tobacco II) is not to the contrary. 

Because the trial court’s finding that the issues of exposure and 

deceptiveness were not susceptible of common proof is supported 

by substantial evidence, we affirm its order denying class 

certification.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Public Storage and its procedures for renting 

space

Defendant Public Storage, Inc. (Public Storage) rents 

storage units to the public, and has more than 400 storage 

facilities throughout California. 
3

A person who rents a unit from Public Storage must pay (1) 

a monthly rent, and (2) a one-time “New Account Administration 

Fee” of $22 or $24 (new account fee). The renter must also (1) 

supply his or her own lock for the space, and (2) have insurance 

that covers the items to be stored. Rather than supplying their 

own locks or insurance, renters have the option of purchasing a 

lock or an insurance policy from Public Storage. Between 2011 

and 2016, Public Storage used four different insurance rider 

forms: The form used from 2011 through March 2012 stated that 

renters could “elect[] to obtain” an insurance policy from Public

Storage; the form used from March 2012 through July 2013 

clarified that any policy obtained from Public Storage might be 

duplicative of homeowner’s or renter’s insurance; the form used 

from July 2013 through January 2016 further clarified that the 

insurance requirement could be met by “[an]other applicable 

insurance” policy; and the form used from January 2016 onward 

even further clarified that a policy from Public Storage was “not 

required in order to store . . . goods.” 

B. Public Storage’s $1 first month’s rent promotion

From 1983 to the present, Public Storage has offered the 

public a promotional rate of $1 for the “First Month” or “First 

Month[’s] Rent” of a storage unit.

The $1 promotional rate has appeared in a variety of 

different media: Public Storage advertised the $1 promotional 

rate “sporadic[ally]” on commercials on local television in 2011 

and 2012 and on select weeks on national cable channels from 

2013 through 2017; on banners affixed to some of the storage 

facilities; on various Internet-based outlets, including Google, 

Yahoo and similar search engines as paid responses to certain 

search queries, Facebook and other social media sites, and 
4

YouTube—all of which referred the viewer to Public Storage’s 

website; on some webpages of Public Storage’s own website; 

briefly on radio commercials on Los Angeles Dodgers Radio in 

2010 and 2011; and sometimes in conjunction with other 

businesses, such as Budget Rental Trucks and Six Flags 

amusement parks.

The “wording” of the advertisements “has varied over time 

and in [this] different media.” Some of the television ads stated 

that the $1 promotional rate “does not include applicable deposits 

or fees”; some of the YouTube ads stated that “Other restrictions, 

taxes and fees apply”; and many of the banners, any of the 

Internet ads on platforms that allows for asterisked text, and 

Public Storage’s website itself (to which all Internet ads funneled 

a viewer), placed an asterisk next to many $1 promotional rate 

advertisements with a second asterisk at the bottom of the 

website explaining that rate was subject to “fees,” “taxes” or 

“restrictions.” 

The $1 promotional rate is automatically applied to certain 

storage units regardless of whether the renter invokes (or 

otherwise knows about) the rate. A renter who reserves a unit

online will (1) see a webpage that displays the $1 rate for the 

remainder of the calendar month as well as pro-rated into the 

next month as well as the $22 or $24 new account fee, and (2) 

receive a confirmatory email setting forth the $1 rate and the 

new account fee. A renter who reserves a unit by calling Public 

Storage and who provides an email address will receive a 

confirmatory email setting forth the $1 rate and the new account 

fee. And all renters—whether they reserve online, reserve by 

phone, or simply walk in and rent a space—are told, before they 

sign any rental contract, that they will be charged the new 
5

account fee. Public storage also mandates that its employees 

follow a script that tells renters, before they sign a rental 

contract, that they must have a lock and insurance, but they have 

the option of using their own locks and insurance or buying a lock 

or insurance policy from Public Storage. 

C. Implementation of the $1 Promotional Rate

Between March 6, 2011 and February 8, 2016, Public 

Storage applied the $1 promotional rate to units rented by 

650,296 customers. Of these customers, 40 percent made an

online reservation for a storage unit and 33.4 percent simply 

“walked in” without any existing reservation. A total of 57

percent of the 650,296 customers received a confirmatory email 

detailing the $1 promotional rate and the new account fee. 

Although four customers (three of whom, as described below, 

became the plaintiffs pertinent to the claim at issue in this 

appeal) reported that Public Storage employees told them that 

they had to buy a Public Storage lock, only 69 percent of the 

650,296 customers during the five-year window bought a lock 

from Public Storage; the remaining 31 percent used their own 

locks. And although the same four customers reported that 

Public Storage employees told them that they had to purchase a 

Public Storage insurance policy, only 86.7 percent of the 650,296

customers during the five-year window purchased a Public 

Storage policy; the remaining 13.3 percent, including one of the 

customers himself on one of the three occasions he rented a 

storage unit, relied upon another insurance policy.

II. Procedural Background

A. Operative complaint

In March 2015, a handful of Public Storage customers 

brought a lawsuit alleging that Public Storage’s $1 promotional 
6

rate was deceptive. In the operative fourth amended complaint, 

named plaintiffs Roderick Goff II (Goff), Heather Granado 

(Granado) and Scott Mueller (Mueller) (collectively, plaintiffs) 

allege, among other things, that the $1 promotional rate violates 

the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) 

and constitutes a false advertisement (id., § 17500 et seq).1 

Specifically, plaintiffs allege that Public Storage’s $1 promotional 

rate advertisements constitute a deceptive “bait and switch” 

because customers were promised a $1 rate but ultimately had to 

pay more than $1 for their first month due to (1) having to pay 

the new account fee, (2) being charged a second month’s rent on 

the first day of the next calendar month, even if the first 28 to 31 

days (at the $1 promotional rate) were not yet over, (3) having to 

buy a lock, and (4) having to provide insurance coverage for the 

items in the storage unit. Plaintiffs sought to bring a class 

action. 

B. Class certification motion

In December 2017, plaintiffs moved to certify a class 

defined as “all California tenants who rented storage units from a 

California Public Storage facility under the $1 Special 

1 These plaintiffs and/or other named plaintiffs also allege 

claims for (1) unfair competition and false advertising in relation 

to Public Storage’s sale of insurance policies, (2) injunctive relief 

against Public Storage’s alleged practices of cutting customers’ 

non-Public Storage-purchased locks, prematurely locking 

customers out of their spaces, not providing customers with 

copies of their rental contracts, and selling insurance without a 

license, and (3) declaratory relief regarding Public Storage’s sale 

of insurance. These claims have been split off into a different 

lawsuit or are otherwise no longer at issue in this case.
7

[P]romotion from March 6, 2011 through February 8, 2016 and 

paid over and above the $1 advertised for the $1 Special” by 

paying (1) “an extra ‘administrative fee;’” (2) “purchas[ing] locks;” 

(3) “purchas[ing] insurance;” and/or (4) “not receiv[ing] a full 

month’s rent (a full month being 28-31 consecutive days 

depending on the month) without further charges.”

After Public Storage filed an opposition and plaintiffs filed 

their reply, the trial court held a hearing to entertain argument.

At that hearing, plaintiffs clarified that they were seeking to 

certify a class only for purposes of obtaining restitutionary relief, 

not injunctive relief. 

In a 10-page order, the trial court denied plaintiff’s motion 

for class certification. The court found that plaintiffs had not 

“show[n] that common issues of fact and law predominate” in two 

respects. First, plaintiffs “ha[d] not shown that all class 

members were exposed to” the $1 promotional rate 

advertisements. Those advertisements, the court found, were 

“frequently disconnected from the rental process” because 

customers could “walk in” and rent a space without seeing a 

banner on the Public Storage facility or could reserve a unit on 

Public Storage’s website without seeing the ad. Because the class 

was defined to encompass anyone who had “rented under the $1 

Special rate” irrespective of whether they had ever seen the 

advertisements for that rate, the issue of whether class members 

had been exposed to the advertisements at issue was not 

susceptible of common proof. Second, plaintiffs had “admit[ted] 

that the advertisements at issue are not uniform.” Because many 

of the specific advertisements made further disclosures, making 

it possible that “one type of advertisement is . . . deceptive but 

another is not,” the issue of whether the class members had been 
8

exposed to deceptive—and hence, actionable—advertisements was 

also not susceptible of common proof. 

Plaintiffs filed a timely notice of appeal.2

DISCUSSION

Plaintiffs argue that the trial court erred in denying their 

motion to certify their proposed class. Because the decision 

whether to certify a class falls “‘squarely within the discretion of 

[a] trial court,’” our review is limited to whether that decision 

constitutes an abuse of discretion. (Brinker, supra, 53 Cal.4th at 

pp. 1017, 1022.) In conducting this review, we look solely to the 

“reasons given by the trial court for denial of class certification” 

and may reverse only if those reasons (1) “rest[] on improper 

criteria” or “erroneous legal assumptions” or (2) are “unsupported 

by substantial evidence.” (Id. at p. 1022; Davis-Miller v. 

Automobile Club of Southern California (2011) 201 Cal.App.4th 

106, 120-121 (Davis-Miller).) We review a trial court’s specific 

finding that “common questions of law and fact” are not 

“predominant” for substantial evidence. (Brinker, at pp. 1021-

1022.)

I. Law Governing Class Certification

A lawsuit may proceed as a class action if there is (1) “‘an 

ascertainable class,’” and (2) “‘a well-defined community of 

interest among the class members.’” (Duran, supra, 59 Cal.4th at 

p. 28, quoting Washington Mutual Bank v. Superior Court (2001) 

24 Cal.4th 906, 913; see generally Code Civ. Proc., § 382.) The 

community of interest requirement requires a showing, among 

2 We have jurisdiction over the denial of a class certification 

motion under the so-called “death knell” doctrine. (E.g., Fierro v. 

Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 280, fn. 4.)
9

other things, that “common questions of law or fact” 

“predominate” as to the class members.3 (Brinker, supra, 53 

Cal.4th at pp. 1021, 1025.) 

In deciding whether common questions predominate, we 

ask whether “the issues framed by the pleadings and the law 

applicable to the causes of action alleged” will be “susceptible of 

common proof” for all members of the proposed class or, instead,

whether the class members will “‘be required to litigate 

numerous and substantial questions determining [their] 

individual right to recover following [a] ‘class judgment’ on 

common issues.’” (Brinker, supra, 53 Cal.4th at p. 1024; Duran,

supra, 59 Cal.4th at p. 28; In re Vioxx Cases (2009) 180 

Cal.App.4th 116, 128 (Vioxx).) The “‘ultimate question’” is which 

will predominate—“‘issues which may be jointly tried’” or “‘those 

requiring separate adjudication.’” (Brinker, at p. 1021.) The 

focus of the predominance inquiry is on the facts and “the 

elements necessary to establish” “‘“the defendant’s liability”’” 

rather than the amount of damages. (Duran, at p. 28; Brinker, at 

pp. 1021, 1024.) Given these principles, the pertinent questions 

then become: (1) What elements must be proven to establish the 

defendant’s liability, and (2) Are these elements susceptible of 

common proof?

The predominance requirement is a critical limitation on 

the scope of the class action mechanism. Although class actions 

enforcing the Unfair Competition Law “‘serve [an] important 

3 The community of interest requirement also requires a 

showing that the class representatives (1) have “claims or 

defenses typical of the class” and (2) “can adequately represent 

the class.” (Brinker, at p. 1021.) These requirements are not at 

issue in this appeal.
10

role[] in the enforcement of consumers’ rights’” by enabling 

consumers to bring a collective action when “the relatively small 

individual recovery” would make a single-plaintiff lawsuit 

infeasible (Tobacco II, supra, 46 Cal.4th at p. 313; Fletcher v. Sec.

Pac. Nat’l Bank (1979) 23 Cal.3d 442, 452 (Fletcher)), “the class 

action procedural device” cannot alter “a party’s substantive 

rights” by “foreclos[ing] . . . litigation of . . . defenses turn[ing] on 

individual questions” (Duran, supra, 59 Cal.4th at p. 34).

The burden of establishing that common issues 

predominate, like all prerequisites for class certification, rests 

with the plaintiff. (Kaldenbach v. Mutual of Omaha Life Ins. Co.

(2009) 178 Cal.App.4th 830, 843 (Kaldenbach).)

II. Analysis

A. What must be proven?

Plaintiffs’ proposed class seeks restitution under the Unfair 

Competition Law for a “fraudulent” business practice and under 

the false advertising law.4 (Bus. & Prof. Code, §§ 17200, 17500.) 

“[T]o state a claim under either the [Unfair Competition Law] or 

the false advertising law, based on false advertising . . . practices, 

‘it is necessary only to show that “members of the public are 

likely to be deceived.”’” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 

939, 951, quoting Committee on Children’s Television, Inc. v. 

General Foods Corp. (1983) 35 Cal.3d 197, 211 (Committee on 

Children’s Television), superseded by statute on other grounds as 

stated in Branick v. Downey Savings & Loan Assn. (2006) 39 

4 The Unfair Competition Law also defines unfair 

competition to include business practices that are “unlawful” and 

“unfair.” (Id., § 17200). Although plaintiffs initially proceeded 

under all three prongs, they now characterize the $1 promotional 

rate solely as a “fraudulent” business practice.
11

Cal.4th 235, 242; see generally, Zhang v. Superior Court (2013) 

57 Cal.4th 364, 370 [noting substantive overlap of two claims]; 

Tobacco II, supra, 46 Cal.4th at p. 312, fn. 8 [same].)

Under the Unfair Competition Law and the false 

advertising law, plaintiffs may seek (1) injunctive relief and/or (2) 

restitution. (Bus. & Prof. Code, §§ 17203, 17535; see Korea 

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

1144.) These forms of relief are “wholly independent remedies” 

(Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 790), and each 

requires a different showing. While a party seeking injunctive 

relief need only prove that “‘members of the public are likely to be 

deceived’” by the defendant’s false advertisements (Committee on 

Children’s Television, supra, 35 Cal.3d at p. 211), a party seeking 

restitution must also prove that the defendant “may have 

. . . acquired” “money or property” “by means of [its] unfair 

competition” or false advertising. (Bus. & Prof. Code, §§ 17203, 

17535; Tucker v. Pacific Bell Mobile Services (2012) 208 

Cal.App.4th 201, 228 (Tucker) [“‘[I]n order to obtain classwide 

restitution under the [Unfair Competition Law], plaintiffs need 

establish not only a misrepresentation that was likely to deceive

. . . but also the existence of a “measurable amount” of 

restitution, supported by the evidence.’”]; Colgan v. Leatherman 

Tool Group, Inc. (2006) 135 Cal.App.4th 663, 698 [same]).

Consequently, where plaintiffs seek to certify a class aimed 

solely at recovering restitution under the Unfair Competition 

Law or false advertising law and define the members of the class 

as anyone who purchased the good or service to which the 

advertisement pertains, those plaintiffs must prove that (1) the 

class members were exposed to the advertisement, (2) the 

advertisement was deceptive, and (3) the deception was material.
12

Unless the class members were exposed to the 

advertisement, they could not have been deceived by it and the 

defendant responsible for that advertisement could not have 

acquired the class members’ “money or property” by means of 

that allegedly deceptive advertisement. (Pfizer Inc. v. Superior 

Court (2010) 182 Cal.App.4th 622, 631 (Pfizer) [“one who was not 

exposed to the alleged misrepresentations . . . could not possibly 

have lost money or property as a result of the unfair 

competition”]; Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 

966, 980 (Cohen) [no relief if the “consumer . . . was never 

exposed in any way to an allegedly wrongful business practice”]; 

Tucker, supra, 208 Cal.App.4th at p. 229 [exposure required]; 

Davis-Miller, supra, 201 Cal.App.4th at pp. 124-125 [same]; 

Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 

932, 945-946 (Knapp) [same]; American Honda Motor Co., Inc. v. 

Superior Court (2011) 199 Cal.App.4th 1367, 1379 [same]

(American Honda); Fairbanks v. Farmers New World Life Ins. Co.

(2011) 197 Cal.App.4th 544, 562 [same] (Fairbanks); Sevidal v. 

Target Corp. (2010) 189 Cal.App.4th 905, 926 (Sevidal) [same]; 

see also, Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 

327-328 (Kwikset) [class valid at demurrer stage based on 

allegation that “plaintiffs saw . . . the labels”]; Weinstat v. 

Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1219-1220

(Weinstat) [class valid where consumers all exposed to the 

misrepresentation]; McAdams v. Monier, Inc. (2010) 182 

Cal.App.4th 174, 179 [re-defining class to include only those 

consumers who had “been exposed” to the deceptive 

representation].)

Unless the advertisement is deceptive, the advertisement 

does not constitute a “fraudulent” business practice or false 
13

advertising. (In re Ins. Installment Fee Cases (2012) 211 

Cal.App.4th 1395, 1417 [no “fraudulent” business practice where 

ad is neither “misleading [n]or deceptive”]; Tucker, supra, 208 

Cal.App.4th at p. 229 [no “fraudulent” business practice where 

consumers are aware of facts omitted from advertisement].)

However, once the plaintiffs establish that the class has

been exposed to a deceptive advertisement, the sole remaining 

element is proof that the falsity or omission that makes the 

advertisement deceptive is “material,” at least when plaintiffs 

define the class as those who have purchased the good or service 

to which the advertisement pertains. In this instance, proof that 

the advertisement is material itself satisfies the element of 

reliance. That is because a falsity or omission in an 

advertisement is “material” if “‘“a reasonable [person] would 

attach importance to”’” that falsity or omission “‘“in determining 

his [or her] choice of action in the transaction in question.”’” 

(Kwikset, supra, 51 Cal.4th at p. 332; Engalla v. Permanente 

Medical Group, Inc. (1997) 15 Cal.4th 951, 977.) And if a

reasonable person would “attach importance” to the falsity or 

omission, courts can safely and logically “infer” or “presume” that 

“members of the public” (from which the putative class members 

are drawn) will rely on that falsity or omission in deciding 

whether to purchase the good or service. (Tobacco II, supra, 46 

Cal.4th at p. 327 [“a presumption, or at least an inference, of 

reliance arises whenever there is a showing that a 

misrepresentation was material”]; Chapman v. Skype Inc. (2013) 

220 Cal.App.4th 217, 229 [“actual reliance, or causation, is 

inferred from the misrepresentation of a material fact”]; Tucker,

supra, 208 Cal.App.4th at p. 226 [noting “inference” of reliance]; 

Keilholtz v. Lennox Hearth Prods. Inc. (N.D. Cal. 2010) 268 
14

F.R.D. 330, 342 (Keilholtz) [same].) And in this instance, defining 

the class as only those persons who purchased the good or service 

at issue itself satisfies the element of injury—that is, the outlay 

of money for that good or service—as to all class members. (E.g., 

Pfizer, supra, 182 Cal.App.4th at p. 626 [so defining a class]; 

American Honda, supra, 199 Cal.App.4th at p. 1379 [same]; 

Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145, 149 

[same] (Steroid); Kaldenbach, supra, 178 Cal.App.4th at p. 836 

[same]; Krueger v. Wyeth, Inc. (S.D. Cal. 2011) 2011 U.S. Dist. 

LEXIS 154472, *2 (Krueger) [same].)

B. Are the elements susceptible of common proof?

The trial court found the elements of exposure and 

deceptiveness were not susceptible of common proof. We examine 

each.

1. Exposure

Common issues do not predominate (and class certification 

is properly denied) when the evidence demonstrates variations in 

how—and, critically, whether—class members were exposed to an 

allegedly deceptive advertisement. (Stearns v. Ticketmaster 

Corp. (9th Cir. 2011) 655 F.3d 1013, 1020 (Stearns) [where class 

members “exposed to quite disparate information” from 

defendant, “it might well be that there was no cohesion among 

the [class] members”]; see Kaldenbach, supra, 178 Cal.App.4th at 

pp. 846, 848 [variations in “what was actually said or 

demonstrated in any individual sales transaction”; common 

issues do not predominate]; cf. Massachusetts Mutual Life Ins. 

Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1289-1292 

[defendant made identical representations or nondisclosures to 

all class members; common issues predominate], superseded on 

other grounds by Proposition 64 as stated in Steroid, supra, 181 
15

Cal.App.4th at p. 154; Steroid, at p. 149 [defendant omitted 

information from labels on every purchased bottle of steroids; 

common issues predominate].) 

Substantial evidence supports the trial court’s finding that 

common issues of fact do not predominate on the issue of 

exposure because “members of the class stand in a myriad of 

different positions” vis-à-vis how and whether they were exposed 

to Public Storage’s $1 promotional rate. (Cohen, supra, 178 

Cal.App.4th at p. 979.) Because plaintiffs’ proposed class is 

defined by who obtained the $1 rate (rather than who saw or 

heard Public Storage’s advertisements for that rate), and because 

Public Storage applied the $1 rate to particular storage units 

whether or not the renters of those units invoked that rate 

(presumably because they had been exposed to an ad for that 

rate), membership in the class is not a proxy for exposure to the 

advertisement. Nor was exposure to the advertisement a 

practical inevitability, as the evidence showed that people could 

make in-person reservations without seeing a banner advertising 

the $1 promotional rate and that people could make online or 

phone reservations without ever seeing advertisements for that 

rate on television, online or elsewhere. Given this variation in 

exposure, the trial court had ample basis to fear it would be

“required to litigate numerous and substantial questions 

determining . . . individual [class members’] right to recover.” 

(Duran, supra, 59 Cal.4th at p. 931.)

2. Deceptiveness

Common issues do not predominate (and class certification 

is properly denied) when the evidence demonstrates a “lack of 

commonality” or “uniform[ity]” in the content of an allegedly 

deceptive advertisement, particularly where some of the 
16

advertisements made full disclosures and were accordingly not 

deceptive. (Fairbanks, supra, 197 Cal.App.4th at p. 562 [“a class 

action cannot proceed for a fraudulent business practice under 

the [Unfair Competition Law] when it cannot be established that 

the defendant engaged in uniform conduct likely to mislead the 

entire class.”]; see Knapp, supra, 195 Cal.App.4th at p. 943 [no 

predominance of common issues where “alleged 

misrepresentations were not uniformly made to proposed class 

members”]; Kaldenbach, supra, 178 Cal.App.4th at p. 846 [no 

predominance of common issues where “what was actually said or 

demonstrated” was “not uniform”]; Pfizer, supra, 182 Cal.App.4th 

at pp. 631-632 [no predominance of common issues where 

allegedly deceptive label was not on all bottles of mouthwash sold 

to class members]; American Honda, supra, 199 Cal.App.4th at p. 

1379 [no predominance of common issues where “representations 

made to class members” were “variable”]; cf. Weinstat, supra, 180 

Cal.App.4th at pp. 1219-1220 [predominance of common issues 

where each product sold by the defendant contained the 

directions alleged to be deceptive].) 

Substantial evidence supports the trial court’s finding that 

common issues of fact do not predominate on the issue of 

deception because Public Storage’s advertisements for its $1 

promotional rate varied over time and across different media, and 

not all of those various ads contained the falsities and omissions 

that plaintiffs claim render those ads deceptive. Several of the 

advertisements touting the $1 promotional rate—including those 

on various banners, on Public Storage’s website, and on the 

Internet—expressly informed consumers that other “fees,” “taxes” 

“restrictions” or “deposits” applied, and thus that the charge for 

the first month would not be only $1. Suffice it to say, an 
17

advertisement is not deceptive for omitting certain information if 

it actually discloses that information. (Accord, Freeman v. Time, 

Inc. (9th Cir. 1995) 68 F.3d 285, 289 (Freeman) [“qualifying 

language” in an advertisement may negate deceptiveness]; 

Sperling v. Stein Mart, Inc. (C.D. Cal. 2016) 2016 U.S. Dist. 

LEXIS 111227, *20, *24 (Sperling) [same].) 

The evidence also indicates that even those advertisements 

that did not on their face mention other “fees” or “taxes” might 

still not be deceptive because Public Storage disclosed the charge 

and requirements plaintiffs allege were deceptively omitted from 

those ads before class members rented their units. Public 

Storage disclosed the new account fee to many class members 

before they ever drove down to a Public Storage facility: Any 

person who received a confirmatory email (as did 57 percent of 

the class) or who reserved a storage unit online (as did 40 percent 

of the class) were informed that they were being charged the new 

account fee. Public Storage disclosed its requirement that each 

renter use a lock on its website, and the purchase of a Public 

Storage lock was not mandatory, even though all three named 

plaintiffs bought Public Storage locks, because (1) 31 percent of 

the putative class did not buy one (and hence did not have to buy

one) and (2) the script Public Storage employees were to use 

required them to explain that renters “can use [their] own” lock.

Public Storage disclosed its requirement that each renter have 

insurance in the rental agreement, and the purchase of a Public 

Storage insurance policy was not mandatory, even though all 

three named plaintiffs bought a Public Storage policy at least 

once, because (1) 13.3 percent of the putative class did not 

purchase such a policy (including Mueller on one occasion), (2) 

the insurance rider itself expressly indicated that Public 
18

Storage’s insurance policy was optional, and (3) the script Public 

Storage employees were to use required them to explain that 

renters can use their own insurance policy. And Public Storage’s 

practice of sending new renters a bill on the first day of the next 

calendar month did not render the $1 promotional rate 

advertisements deceptive because Public Storage (1) pro-rated 

the next month’s rent bill to charge renters only $1 for however 

many days of the first month spilled into the next month; and (2) 

imposed no fee if the renter opted not to pay the next month’s 

rent bill until the following month. 

Given this variation in disclosures that directly affect 

whether the allegedly deceptive advertisements were, in fact, 

deceptive, the trial court also had ample basis to fear it would be 

“required to litigate numerous and substantial questions 

determining . . . individual [class members’] right to recover” on 

the issue of deceptiveness. (Duran, supra, 59 Cal.4th at p. 931.)

III. Plaintiffs’ Counter-Arguments

A. The Effect of Tobacco II

Plaintiffs argue that the trial court was wrong to require 

them to prove that exposure and deceptiveness are susceptible of 

common proof. For support, they cite our Supreme Court’s 

decision in Tobacco II, supra, 46 Cal.4th 298. Plaintiffs assert 

that the trial court relied upon improper criteria in denying class 

certification by insisting that “each class member . . . have seen 

the same or substantially the same advertising copy” because 

Tobacco II stated that a “plaintiff is not required to plead with an 

unrealistic degree of specificity that [he] relied on particular 

advertisements or statements” when there is a “long-term 

advertising campaign.” (Tobacco II, at p. 328; see also id. at p. 

306.) Because Public Storage’s $1 promotional rate campaign is a 
19

36-year-old ad campaign, plaintiffs reason, “[i]t is enough that 

[its] advertising campaign . . . presents a pervasive common 

theme that misleads.” Plaintiffs further assert that the trial 

court erred in requiring proof of deception because Tobacco II, 

drawing on earlier cases, reaffirmed that “‘relief under the 

[Unfair Competition Law] is available without individualized 

proof of deception, reliance and injury.’ [Citation.]” (Id. at pp. 320

& fn. 14, 326; see also Committee on Children’s Television, supra, 

35 Cal.3d at p. 211; Bank of the West v. Superior Court (1992) 2 

Cal.4th 1254, 1267.)

We disagree with plaintiffs that Tobacco II abrogated the 

requirements of exposure and deception that, as described above, 

must be proven when plaintiffs seek to recover restitution under 

the Unfair Competition Law and false advertising law.

To begin, Tobacco II’s holding is inapt. Tobacco II

addressed the standing requirements of class representatives in 

class actions under the Unfair Competition Law and false 

advertising law after the enactment of Proposition 64. (Tobacco 

II, supra, 46 Cal.4th at p. 306; see also, Bus. & Prof. Code, 

§§ 17204, 17535.) The court ruled that Proposition 64 limits class 

representatives to those persons who have actually relied on an 

unfair business practice (or false advertisement) and

“person[ally] . . . suffered” economic harm due to that reliance. 

(Tobacco II, at p. 330; Kwikset, supra, 51 Cal.4th at pp. 321, 323.) 

The court further ruled that these additional standing 

requirements apply only to class representatives, not to the 

members of the class. (Tobacco II, at p. 306.) Because Tobacco II

deals with the standing requirements for class representatives, 

courts have repeatedly “concluded Tobacco II is ‘irrelevant’ to a 

class certification motion ‘because the issue of “standing” simply 
20

is not the same thing as the issue of “commonality.”’” (Kizer v. 

Tristar Risk Management (2017) 13 Cal.App.5th 830, 849; Cohen, 

supra, 178 Cal.App.4th at p. 981; Davis-Miller, supra, 201 

Cal.App.4th at p. 124; Knapp, supra, 195 Cal.App.4th at p. 945.) 

More to the point, even if we ignore Tobacco II’s context 

and focus on the language plaintiffs cite, that language does not 

do away with the requirement that class members be exposed to 

an allegedly deceptive advertisement and that the advertisement 

be deceptive. 

Tobacco II’s acknowledgement that a plaintiff need not 

“plead with an unrealistic degree of specificity” that he or she 

“relied on particular advertisements or statements” within a 

“long-term advertising campaign” does no more than excuse a 

plaintiff who was exposed to a series of deceptive advertisements 

from having to spell out which deceptive ad(s) he actually saw or 

heard. This language does not purport to excuse a plaintiff from 

having to prove that he or she was actually exposed to at least 

one deceptive advertisement. Contrary to what plaintiffs assert, 

the trial court did not insist that every class member “see[] the 

same or substantially the same advertising copy.” Instead, the 

court found not all class members had been exposed to Public 

Storage’s $1 promotional rate advertisements, and that this 

variation in exposure meant that individual issues predominated 

and counseled against class certification. This conclusion is 

consistent with Tobacco II.

The statement in Tobacco II and prior cases that relief is 

available under the Unfair Competition Law and false 

advertising law “without individualized proof of deception, 

reliance and injury” does no more than reaffirm that the focus of 

both the Unfair Competition Law and false advertisement law is 
21

the “reasonable consumer” and whether the content of the 

challenged advertisement is “likely to deceive” that “reasonable 

consumer” (Vioxx, supra, 180 Cal.App.4th at p. 130; Fletcher,

supra, 23 Cal.3d at p. 451), such that there is no need for 

plaintiffs to prove that “individual” class members were actually, 

subjectively deceived or actually, subjectively relied on a deceptive 

advertisement (Fletcher, at p. 451 [disclaiming need to prove “the 

individual’s lack of knowledge of the fraudulent practice in each 

transaction”]; Davis-Miller, supra, 201 Cal.App.4th at p. 121 [“A 

representative plaintiff need not prove that members of the 

public were actually deceived by the practice, relied on the 

practice, or suffered damages.”]; Pfizer, supra, 182 Cal.App.4th at 

p. 630 [same]; Prata v. Superior Court (2001) 91 Cal.App.4th 

1128, 1145 [same]). Indeed, Tobacco II would have been an 

especially poor vehicle for dispensing with the requirement of 

having to prove that class members were exposed to a deceptive 

advertisement because the class in Tobacco II was defined as 

persons who were exposed to the cigarette industry’s deceptive 

ads at issue in that case. (Tobacco II, supra, 46 Cal.4th at p. 324 

[so noting].)

Two further reasons counsel against reading Tobacco II’s 

language as abrogating the requirements that plaintiffs seeking 

restitutionary class relief establish that class members were 

exposed to deceptive advertisements. First, doing so would allow 

class members to recover restitution from a defendant even if 

they have never been exposed to its deceptive advertising. While 

the Unfair Competition Law and false advertising law authorize 

restitution for money or property “which may have been 

acquired” by means of a fraudulent business practice or deceptive 

advertisement (Bus. & Prof. Code, §§ 17203, 17535), they do not 
22

authorize restitution for money or property definitively not 

acquired through such means; to so hold is to render this 

language “meaningless.” (Sevidal, supra, 189 Cal.App.4th at p. 

924; Vioxx, supra, 180 Cal.App.4th at p. 131 [“the ‘may have been 

acquired’ language . . . is not so broad as to allow recovery 

without any evidentiary support”].) Second, reading Tobacco II’s 

language as overriding the requirement to show exposure and 

deception would contradict the solid wall of precedent, cited 

above, that holds to the contrary. 

B. Challenges to the susceptibility of common proof

Plaintiffs assert that Public Storage’s advertisements are 

uniformly deceptive, and hence that the trial court erred in 

finding that the issue of deceptiveness was not susceptible of 

common proof. Plaintiffs make two specific contentions. First, 

they contend that the $1 promotional rate advertisements that 

refer to “fees,” “taxes,” “restrictions” or “deposits” do so in a 

footnoted asterisk, and that such an oblique disclosure does not 

constitute a disclosure that cures the more prominent promise of 

a $1 charge. For support, they cite Brady v. Bayer Corp. (2018) 

26 Cal.App.5th 1156 (Brady) and Title 16, Code of Federal 

Regulations, section 251.1. Second, they contend that any postadvertisement disclosures of the new account fee as well as the 

need to have a lock and insurance (and to buy a Public Storage 

lock and insurance) cannot cure the omission of this information 

from the advertisement, citing Veera v. Banana Republic, LLC

(2016) 6 Cal.App.5th 907 (Veera). 

Plaintiffs’ assertions do not undermine the trial court’s 

denial of class certification. 

To begin, these assertions do not speak to the absence of 

common proof of exposure, which is an independent and sufficient 
23

basis to conclude that common issues do not predominate (and 

hence that the class should not be certified). 

Further, plaintiffs’ authority does not render Public 

Storage’s $1 promotional rate advertisements universally 

deceptive (and hence susceptible of common proof). The federal 

regulation addresses when ads for “free” goods or services are 

deceptive under federal law, and is for that reason doubly 

irrelevant. Brady holds that disclosures made in “miniscule” 

“print” on a product’s back label do not cure omissions on its front 

label. (Brady, supra, 26 Cal.App.5th at p. 1159.) We question 

whether Brady governs here, where Public Storage’s additional 

disclosures are only a few words long and make clear that 

additional “fees” and “taxes” may apply, where those disclosures 

are on the same banner or page as the $1 promotional rate, and 

where many of the them also point the viewer to Public Storage’s 

website where the disclosures are spelled out in detail. (Accord, 

Freeman, supra, 68 F.3d at p. 289; Sperling, supra, 2016 U.S. 

Dist. LEXIS 111227, at *20, *24; cf. Cuisinarts, Inc. v. RobotCoupe Int’l Corp. (S.D.N.Y. 1981) 509 F. Supp. 1036, 1044 

[“small-type footnote” with lots of text connected to an asterisk 

may be “insufficient” when heading is “prominent”].) 

But even if we assume for the sake of argument that Brady

means that Public Storage’s advertisements with footnotes 

warning of additional charges are still deceptive, this still does 

not render all of Public Storage’s advertisements deceptive 

because Public Storage in many instances went on to disclose the 

additional costs after prospective customers saw the ads but 

before they signed a lease contract. Plaintiffs respond that Veera

renders all post-advertising disclosures ineffective, but that is not 

what Veera holds. Veera held that a post-advertisement 
24

disclosure was ineffective where the disclosure was made at a 

time when the “consumer” was “invested in the decision to buy 

and swept up in the momentum of events” (in Veera itself, when 

the plaintiff learned of the disclosure at the counter after 

standing in line to buy the product). (Veera, supra, 6 Cal.App.5th 

at p. 921.) Here, however, 57 percent of the class received emails 

confirming the new account fee upon reserving a storage unit and 

before traveling to the facility to sign a lease, other putative class 

members learned about the lock requirement from the website, 

and other putative class members learned about the insurance 

requirement before they executed the rental contract. In short, 

substantial evidence continues to support the trial court’s finding 

that common issues do not predominate on the question of 

whether the ads that class members saw were deceptive.

C. Plaintiffs’ remaining arguments

Plaintiffs make what boil down to three further arguments 

assailing the trial court’s reasoning.

First, they argue that several federal cases support their 

position that Tobacco II, supra, 46 Cal.4th 298 eliminates any 

need to establish that class members seeking restitution were 

exposed to a deceptive advertisement. However, none of those 

cases so hold. Half involve classes comprised of consumers who 

were uniformly exposed to deceptive advertisements or labels. 

(Krueger, supra, 2011 U.S. Dist. LEXIS 154472, *33, *38; Pratt v. 

Whole Foods Mkt. Cal., Inc. (N.D. Cal. 2014) 2014 U.S. Dist. 

LEXIS 46409, *28.) The other half do not involve deceptive 

advertising or labeling at all. (Keilholtz, supra, 268 F.R.D. at p. 

342 [class action deals with defendant-manufacturer’s failure to 

disclose its product’s hidden defects]; Menagerie Prods. v. 

Citysearch (C.D. Cal. 2009) 2009 U.S. Dist. LEXIS 108768 [class 
25

action deals with defendant’s failure to reveal to its customers its 

methodology for tracking compensable “clicks” for internet ads].)

Second, plaintiffs cite Ninth Circuit authority that reads 

California law as “creat[ing] what amounts to a conclusive 

presumption that when a defendant puts out tainted bait and a 

person sees it and bites, the defendant has caused an injury; 

[and] restitution is the remedy.” (Stearns, supra, 655 F.3d at p. 

1021, fn. 13; see also Pulaski & Middleman, LLC v. Google, Inc.

(9th Cir. 2015) 802 F.3d 979, 986 [quoting Stearns on this point].) 

To the extent plaintiffs read this language as stating that 

California law does not require a showing that consumers be 

exposed to a deceptive advertisement before “bit[ing],” that 

reading is inconsistent with the case’s language (which expressly 

requires that the “person” “see” the “tainted” “bait”) and is

inconsistent with California law set forth in this opinion.

Lastly, plaintiffs fall back on the maxim that every wrong 

must have a remedy (Civ. Code, § 3523), and urge that the trial 

court’s denial of class certification has effectively denied them a 

remedy because their individual losses are too small to feasibly 

bring suit individually. We decline to employ that maxim as a 

basis for certifying a class notwithstanding the predominance of 

individual issues because doing so would confer a remedy upon

those class members who have not been wronged and therefore 

have no right to restitutionary relief. This not only turns the 

maxim on its head, but also impermissibly turns the Unfair 

Competition Law and false advertising law into fulcrums for 

“creat[ing] substantive rights” that do not otherwise exist (The 

MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 

Cal.App.4th 1522, 1526).
26

DISPOSITION

The order is affirmed. Public Storage is entitled to its costs 

on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P.J.

LUI

_________________________, J.

ASHMANN-GERST