F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

F R E S N O M O T O R S , L L C, a California limited liability

company and S E L M

A M O T O R S , I

N C., a California corporation, Plaintiffs-Appellants
,

v

.

M E R C E D E S B E

N Z USA, L L C, a Delaware limited liability company , Defendant-Appellee

. N o. 12-15981

D.C. No. 1:11-CV-02000- CJ C

OPI NI ON

On Appeal from the United States District Court for the Eastern District of California Cormac J . Carney , District J udg e, Presiding

Arg ued and Submitted J anuary 17, 2014—San F rancisco, California

F iled November 5, 2014

B efore: J

. Clifford W allace, J ay S. B y bee, Circuit J udg e s, and Robert W . Gettleman, District J udg e. *

Opinion by

J udg e Gettleman

* T h e Ho n o rab le R o b e r t W

. Gettlem an , Sen i o r Un ited States District J u d g e f o r th e No rth ern District o f Illin o is, sittin g b y

d esig n atio n

.F R E S N O M O T O R S V

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SUMMARY * *

Calif ornia Law

The panel affirmed in p art, and reversed in part, t h e distri ct court’s summary judg ment entered in favor o f Mercedes-B enz USA, L L C in a diversity action brou gh t b y plaintiffs whose attempt to p urchase a F resno Mercedes-B enz dealership was un s u c c e s s f u l d ue to Mercedes-B enz ’s ex ercise of a rig ht of first refusal.

Apply ing California law, the p a nel affirmed the district
court and held that the plaintiffs had no c laims for intentional interference with contract or prospective economic advantag e where Mercedes-B enz timely a nd lawfully ex e rcised its rig ht of first refusal (“ROF R”). The panel also held that California Vehicle Code § 11713.3(t)(2) did not require a franchisor to send notice of the intent to ex ercise a ROF R to the prospective transferee. The panel further held t h a t even if plaintiffs were entitled to n otice from Merc e d es-B e nz of its

ex e r cise of the ROF R, the notice plaintiffs received was both timely and in proper form.

Mercedes-B enz and the ex isting franchisee en t ered into

a n acknowledg ment ag reement which set out the par t i e s ’ ri ghts and o blig ations with respect to Mercedes-B enz ’s

e x e r cise of its ROF R. The panel affirmed the district cour t , and held that plaintiffs’ claim that Mercede s

- B enz fraudulently concealed the ex istence of the acknowledg ment ag reement had no merit.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F R E S N O M O T O R S V

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California Vehicle Code § 117 1 3

. 3(t)(6) provides for a proposed transferee’s r ig ht to r ecover its ex penses from a franchisor that usurps its contract by ex ercising a ROF R. The panel concluded that the p laintiffs, as prospective transferees, had an implied rig h t of a c t i o n u nder section 11713.3(t)(6), and reversed the summary judg ment to Merced e s

- B enz on that count, and remanded for further proceeding s.

F inally
, the panel affirmed t h e district court’s g rant o f
summary judg ment to Mercedes-B enz on p laintiffs’ claim under the California Unfair Competition Statute.

COUNSEL

Alex a nder F. Stuart (arg

ued) and Elly

n E

. Nesbit, W ill o u g hby
, Stuart & B ening
, San J ose, California; Oliver W. W a g n er, W ag ner J ones Helsley
, P.C., F resno, California, for Plaintiffs-Appellants.

Gwen J

. Young (arg

ued) and Ry an P. Day
, W heeler, Trig g , O’Donnell L L P, Denver, Colorado, for Defendant-Appellee.

OP INION

GETTL EMAN, District J udg e:

Plaintiffs F resno Motors, L L C (“F resno”) and Selma Motors, I nc. (“Selma”) (jointly

, “plaintiffs”) sig ned an Asset Purchase A g reement to purchase a Mercedes-B enz dealership from Asbury F resno I mports, L L C ( “Asbury ”). M e r cedesBe nz USA, L L C (“MB ”), the manufacturer/importer of t h e vehicles sol d by the dealership, ex ercised a r ig ht of firstF R E S N O M O T O R S V

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refusal ( “ROF R”) contained in its dealership ag r eement with Asbury

. Aft e r s e veral unsuccessful attempts to resolve plaintiffs’ objections to MB ’s ex ercise of its ROF R, plaintiffs broug ht this action contesting the timeliness and propriety o f that ex e rcise.

I n a first amende d complaint (“F AC”) plaintiffs assert five claims ag ainst MB
, all b r oug ht under California law: (1) intentional interference w i t h e x isting contractual advantag e; ( 2 ) intentional interference with prospective economic advantag e; (3) violation of California B usiness a nd Professions Code § 17200; ( 4) violation o f California Vehicle Code § 17133.3(t); and (5) fraudulent concealment. MB moved to dismiss the F AC under F ed. R. Civ. P. 12(b)(1) a nd 12(b)(6). B ecause all operative facts a ppeared to be ag r eed, the d istrict court converted the motion to one for summary judg ment under F ed. R. Civ. P. 12(d) and 56, and a llowed the parties to file supplemental briefs and additional evidence if needed. I n a March 27, 2 0 12, comprehen s i v e opinion, the
court g ranted defendants summary judg ment o n all claims. Plaintiffs timely

appealed.

I.

Asbury owned a

n d operated the Fresno Dealership pursuant to a Passeng er Car Dealer Ag r eement (“PCDA”) a nd L ig ht T r uck Dealer A g reement (“L TDA”) ( jointly

, “Dealer Ag reement”) with MB

. I t operated the d ealership on premises that it l e ased from CAR AAG CA L .L .C. (the “L andlord”) under an April 1
, 2003, L e ase Ag reement ( “L ease”) with a fifteen y e ar term and two ten-y ear renewal options.

I n f all 2008, Selma, owned by Dwig ht G. Nelson, beg an neg otiating with A sbury for the purchase of t h e Fr esnoF R E S N O M O T O R S V

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Dealers hip. Selma a

n d Asbury ex ecuted an initial Asset Purchas e Agr e ement on December 11, 2008. At that time Selma beg an working with MB to become approved as a Mercedes-B enz dealer, and submitted a completed De a l er Application Packet on De c ember 28, 2008. Selma and Asbury

m utually terminated the initial ag reement on J anuary 16, 2009.

On March 27, 2009, Selma and Asbury ex ecuted a second Asset Purchase Ag reement ( “APA”). MB sent Selma a second dealer application, but on A pril 3, 20 0 9
, S elma informed MB that all of the requested information was in the

o r i g inal p ackag e. MB requested that Selma confirm that all information in the orig inal packag e remained current, and on April 14 Selma respon d e d by sending MB updated information including a Co m mitment L etter covering the floor plan financing f

or the pro p o s ed dealership, which Mercedes-B enz F inancial confirmed as v a lid. On April 20, 2009, Selma sent MB a “W holesale F inancing Commitment F orm” ex ecuted by

Mercedes-B enz F inancial.

On April 23, 2009, Nelson formed F resno for t he sole
purpose of buy ing the F resno D ealership fr o m Asbury

. The following d ay , Selma ( throug h Nelson) infor m ed MB that it intended to assig n the APA to F resno. On A p r i l 3 0
, 2009, MB informed Nelson that because F resno was the purchasing entity it was critical that MB receive a W holesale F inancing Commitment F orm from Mercedes-B enz F inancial reflecting F resno as the buy er.

On May 1, 2009, Selma, Asb u r y a n d F resno ex ecuted a second amendment to the APA, completing the assig n ment to Fresno. That a mendment a ssig n ed to F r esno all of Se l m a ’s rig hts under the APA, but specif i c a l l y indicated that it wasF R E S N O M O T O R S V

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n o t intended to operate as release of Selma’s oblig ations

. That same d ay , F resno (throug h N e lson) sent to MB b y facsimile and overnig ht mail the W holesale Fi n ancing Commitment F orm sig ned by Mercedes-B enz F in a ncial evidencingits commitment to ex tend floor plan financing to F resno.

Ex actl y fo rty -five d ay s later, o n J une 15, 2009, at 8:18
p.m. EDT (5:18 Pacific Time), MB ex ercised its contractual ROF R. MB p r ovided n otice to A s b u r y b y sending it a letter by email a

nd facsimile. Althoug h not contractually r equired
to do s o, MB also sent a copy of the letter to Nelson’s
p e r s o n a l e mail address and to the email address of F resno’s comptroller, Charles F letcher. MB also sent the letter b y facsimile to a fax machine at Nelson’s busi n e ss address at Se l m a M otors. The letter indicates that it was also sent via overnig h t delivery
, but apparentl y w as not placed with F ederal Ex press until the following day
, and t h e n delivered on J une 17, 2009.

On J une 19, 2 009, MB and Asbury entered into an ag reement (the “Acknowledg ment Ag reement”), whic h s t a t e s that “[ o] n J une 15, 2 009, MB provided timely written notice
to Asbury of its e x erc i s e of its r ig ht of first refusal with respect to the

. . . F resno Motors APA

. . . . ” The Acknowledg me n t A g reement then e x pressly set out the parties’ rig hts and oblig ations with respect to MB ’s ex ercise of its rig ht of first refusal. I n particular, the Ag reement provides:

1. Terms of

Exercise

. MB acknowledg es that by its ex ercise of its rig ht of f irst refusal, MB will be subject t o t h e same terms a nd conditions under the F r e s n o Motors APA a sF R E S N O M O T O R S V

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s uch terms and conditions apply to F resno M o tors. F urther, any subsequent assig nme n t by MB of its rig h ts or oblig ations under any

or a ll of the F resno Motors APA a nd Purchase Documents, including
, without limitation, the Sublease, shall not operate as a release of MB of its oblig ations under such Ag reements. F o r avoidance of doubt, MB ex pressly ag rees that it shall be primar i l y responsible for the performance u nder t he F resno Motors APA and Sublease. Asbury acknowledg es that MB
may assig n its rig h ts and o blig ations under the F resno Moto r s APA a

nd the Sublease to a third party provided that MB remain primarily responsible for the performance o f any such assig nee w ith respect to the F resno Motors APA and the Sublease.

T he Acknowledg ment Ag reement also provides t h at Asbury wou l d t e r minate the F resno APA with respect to F resno Motors, but t h a t the termination would “not be deemed a termination of the Fr esno Motors APA as such
terms an d c onditions now apply to MB as a result o f its

ex e r cise of its rig ht of first refusal a s well as to any proposed assig nee of MB .” MB ag reed to continue to b e bound by the
terms a nd conditions of the APA a s if it were the orig inal party

. Asbury did in fact terminate the APA with F resno that

same d ay , J une 19, 2009. F resno challeng ed MB ’s ex e rcise o f its ROF R as untimel y

. A f t e r MB ’s attempts to assig n the APA to a third party failed, MB ag reed to mediate its dispute with F resno. That mediation took place on J uly 30, 2009, at which t ime MB ag reed to assig n its rig hts under the APAF R E S N O M O T O R S V

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back to F r esno under certain conditions. Neither Asbury nor MB h ad y et informed F resno of the Ac k n o wledg ment Ag reement. F resno did not receive that information until Aug ust 31, 2009.

MB ’s co u n sel memorializ ed the conditions of the assig nment in an email to F resno’s counsel immediately a fter the mediation. MB and F resn o n eg o tiated and finaliz e d the
terms o f an “ Assig nment and A ssumption Ag reement” b y Aug ust 2 8, 2009. F resno did not sig n, h owever, a nd
neg otiations reached an impasse when MB would not provide the L andlord with a g uaranty o f F resno’s obliga tions under the Sublease. Still unaware of the Acknowledg m e n t Ag reement, F r esno attempted to neg otiate with the L andlord

an assumption of A s b ury ’s lease or a new lease with an option to purchase. These neg otiations were ultimately unsuccessful, and in mid-October A s b u ry terminated the APA.

II.

W e r e view d e n o v o a district c ourt’s order g ranting
summary judg ment. In re Oracle Corp. Sec. Litig.
, 627 F .3d 376, 387 (9t h C i r. 2010). W e may a ffirm “on a ny g r ound supported by the record, r e g ardless of whether the district court relied upon, rejected, or even considered that g round.” In re ATM Fee Anti t r u s t Litig.
, 686 F .3d 741, 748 (9th Cir. 2012) (citation omitted).

Su m m a r y judg ment is appropriate where “there is no g enuine dispute as to any material fact and the mo v a n t is entitled to judg ment as a m a t t e r o f law.” F ed. R. Civ. P. 56(a). The court views the evidence i n t h e lig ht most f a v orable to the non-moving party to determine if there a r eF R E S N O M O T O R S V

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a ny g enuine issues of material fact and whether the movin g party is entitled to judg ment as a m a t t er of law. Cnty. of Tuolumne v. Sonora Cmty. Hosp. , 236 F .3d 1148, 1 154 (9th Cir. 2001). The court draws all justifiable inferences in favor

o f the n o n-moving party

. Anderson v. Liberty Lobby, I n c

. , 477 U .S. 242, 255 (1986). A fact is “material” o nly i f it mig ht affect the outcome of the case, and a dispute is “g enuine” only if a reasonable trier o f fact could resolve the issue in the non-movant’s favor

. I d

. a t 248. Summary judg ment is improper “ where d i v e rg ent ultimate inferences
may reasonably be d

rawn from the undisputed facts.” Miller

v. Glenn Miller Prods., Inc.
, 4 5 4 F .3d 975, 988 (9th Cir. 2006).

III.

A. Tortious Interference

Plaintiffs assert that b y e x e rcising its ROF R in an “untimely ” and therefore “unlawful” manner, MB tortiously interfered with plaintiffs’ contractual r e lationship with Asbury a nd the i r prospective economic advantag e in the F resno Dealership. Under California law, the elements of the
tort of intentional interference with contractual relations are: “(1) a valid contract between plaintiff and a third party ; (2) defendant’s knowledg e o f this contract; (3) defendant’s i n tentional acts desig ned to induce a breach or disruption o f the contractual relationship; ( 4) actual breach or disruption o f the contractual relationship; a nd (5) resulting damag e.” Pac. Gas & Elec. Co. v. Bear Stearns & Co.
, 50 C a l

. 3 d 1118, 1126, 270 Cal. Rptr. 1, 3–4, 791 P.2d 5 87, 589–90 (1990). Tortious interference with prospective e conomic adv a ntag e is similar, protecting “the same interests and stable economic relationships as d oes the tort of interference with c o n tract,”F R E S N O M O T O R S V

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with the chief practical distinction being that “ a broader r ang e of privileg e to interfere is recog niz e d when the re l ationship

or economic advantag e interfere d with is only prospective.” Id

. I n addition, a claim fo r interference with prospective economic advantag e requi r e s p roof that the defendant “ not only interfered with the plaintiff’s ex p ectancy , but e n g ag ed in conduct that was wrong ful by some leg al measure other than the f a c t of interference itself.” Della Penna v. Toyota Motor Sales, U

SA, Inc.
, 11 Cal. 4th 376, 393, 45 Cal. Rptr. 2d 436, 447, 902 P.2d 740, 751 (1995).

The district court g r anted summa ry judg ment to MB
, concluding that because MB “had a substantial, continuing economic interest and n ecessary involvement in the APA that

was contractually recog niz ed and statutorily protected ,” it

was “not - a - strang er” to the relationship between plaintiffs and Asbury

. Under the district cour t’s interpretation o f California law, the two interference t o r ts “may only lie
ag ainst ‘strang ers’ or interlopers who do not have a direct a nd sig nifican t interest in the plaintiff’s contractual relationship with another individual or entity .” Fre s n o M otors LLC v

. Mercedes-Benz USA, LLC
, 852 F

. Supp. 2d 1280, 1293 (C.D. Cal. 2012).

The “not - a - strang er” principle relied o n by the district
court is an elusive conce p t that has spawned much

c o n t roversy in both the California courts and this court. I t stems from the statement by the California Supreme Court in Applied Equip. Corp. v. Litton Saudi Arabia Ltd.
, 7 Cal. 4th 503, 514, 28 Cal. Reptr. 2d 475, 4 80, 869 P

. 2 d 454, 459 (1994), that “[ t] he tort duty not to interfere w ith the contract falls only on strang ers – interlopers who h a v e no leg itimate interest in the scope or c ourse of the contract’s performance.” The issue in Applied E

q uip. was n arrower, however, than theF R E S N O M O T O R S V

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Supreme Court’s statement. The o nly issue was whether “a contracting party [ may ] be held liable in tort for c onspiracy
to interfere with its own contract.” I d

. at 507. Rely ing on the long -standing proposition th at the tort cause of action for int e r f e r e nce with contract d oes n ot lie ag ainst a party to the
contract because “[ o] n e contracting party owes no g e neral tort dut y t o another not to interfere with performance of the contract; its duty is simply to perform the contract according
to its terms,” the c ourt then c o n c l uded that because a contracting party cannot be liable for the underly ing tort o f interfe r e n c e with contract, it also could not b e liable for conspiracy to interfere w ith the contract. “B ecause a party to

a contract owes no tort duty to refrain from interference with i t s p erformance, he o r she cannot be bootstrapped into to r t liability by the pejorative plea of conspiracy .” Id . at 514.

I t was in this contex t that the Applied Equip. court defined the tort duty not to interfere with contract as falling “only on strang ers - interlopers w ho have no leg itimate interest in the
scope o r course of the contract’s p e r f o r m ance.” Id

. This
statement has, not surprising ly
, led man y c o u r ts to hold that there is also no tort duty not to interfere falling on noncontracting parties who do have a leg itimate interest in the
scope or course of the contract’s p erformance, concluding
, a s did the district court in the instant case, that such third-parties

are n ot strang ers to the relationship. See, e.g. Exxon Corp. v

. Superior Court
, 51 Cal. App. 4t h 1 6 72, 1688, 60 Cal. Rptr. 195, 205 (1997) ( ga soline franchisor “has a clear financial interest in its dealers and therefore is privileg ed to ‘interfere’ with the contract”); Kasparian v. Cnty. of L o s Angeles
, 38 Cal

. App. 4th 242, 262, 4 5 Cal. Rptr. 2d 90, 100 ( 1 995); Mintz v

. Blue Cross of Cal

. , 1 72 Cal. App. 4th 1595, 1603, 92 Cal. Rptr. 3d 442, 429 (2009).F R E S N O M O T O R S V

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This court, too, has a ddressed the issue, stating that “California law has long recog ni z e d t hat the core o f intentional interference business torts is interference with an economic relationship b y a third party stranger to that relationship, so that an e n t i ty w ith a direct interest o r involvement in that relationship is not usually liable for harm caused by pursuit of its interests.” Marin Tug & Barge, Inc.

v. W es t p o r t Petroleum, Inc.
, 271 F .3d 825, 832 (9th Cir. 2001) ( emphasis in orig inal). T he principle enunciated in Marin Tug h as been followed by several district courts within this circuit. See, e.g. V

iChip Corp. v. Lee
, 438 F. S upp. 2d 1087, 1097 (N.D. Cal. 2006); Nat’l Rural Telecomms. Co-op.

v. DIRECTV, I

nc. , 319 F

. Supp. 2d 1059, 1070–72 (C.D. Cal. 2003).

More recently
, h o wever, several decisions of the California Courts of Appeal have r ej e c t e d Marin Tug ’s interpretation of Applied Equip.
, con c l u d ing that Applied Equip. should be limited to its specific holding that only parties to a contract ar e e x cluded from asserting an intentional interference claim. See, e.g. , W oods v. Fox Broad. Sub., Inc.
, 129 Cal. App. 4th 3 44
, 3 5 2

– 5 3
, 28 Cal. Rptr. 3d 463, 469–70 (2005); Powerhouse Motorsports Grp., Inc. v

. Y a maha Motor Corp.
, 221 Cal. App. 4th 867, 883–84, 16 4 C al

. Rptr. 3d 811, 825 (2013); Asahi Kasei P h arma Corp. v. Actelion Ltd.
, 222 Cal. App. 4th 9 4 5, 959–65, 169 Cal. Rptr. 3d 689, 700–05 (2013).

F inally
, just recently a panel of this court has stated t h at Marin Tug ’s enunciation of California law is inco n s i s t ent with the later d ecisions of the California intermediate courts in Powerhouse and W oods
, conc l uding that only the contracting p arti e s have a “direct interest or involvement in that relationship,” thus limiting Applied E quip

. to its specificF R E S N O M O T O R S V

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holding t h at o nly parties to a contract are immune from claims of in t en t ional interference with ex isting contractual relations. United Nat’l Maint., Inc. v

. S an Diego Convention Ctr., Inc.
, 766 F .3d 1002, 1007–08, (9th Cir. 2014) (citations omitted). 1

As is readily a

pparent, the viability o f t he “not - a

- strang er” principle relied on by the district court is in a state of flux
, and there is no indication that the California Supreme Court will clarify it any time soon. T his court need not reach the issue, h owever, because, a s pla i n tiffs emphasiz ed repeatedly in their district court briefs, “an auto manufacturer who lawfully ex ercises a n unex pired ROF R cannot be sued for inducing a breach of c ontract,” and in this c ourt, “F resno Motors’ suit is pre m i s ed on MB ’s unlawful and improper

means o f interfering with F r esno Motors’ APA” by ex ercising its ROF R in a

n alleg edly untimely a n d unlawful manner. Notably
, e ven plaintiffs readily admit t h a t both their intentional interference with p rospective econo m i c a d v antag e claim and their intentional interference w i t h contract claim fail if MB properly

and timely

ex ercised its ROF R.

The dis t r i ct court, in a brief footnote in an otherwise leng thy a nd comprehensive opinion, stated that “the parties dispute the timing of [ MB ’s] e x er c i s e , and the Court finds that this issue implicates c ontested facts th a t cannot be resolved o n a motion for summar y j u d gm e nt

. . . .” Fresno Motors
, 852 F

. Supp. 2d at 1302–03 n. 16. The district court, h o wever, did not identify w hat facts it viewed as contest ed
, and our review of the record and the p arties’ briefs reveals no

suc h contest. The date, time, and manner by which MB

1 Un ited Na t’l M

a i n t

. in v o lv ed in ten tio n al in terf eren ce w ith co n t

ract

o n ly , an d its h o ld in g is lim ited to th at to rt. 7 6 6 F.3 d at 1 0 0 7

.F R E S N O M O T O R S V

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ex e r cised the ROF R are all incontestab ly established b y the documents in the record, and clearly demonst r a te that MB timely and lawfully ex ercised its ROF R, leaving plainti f fs with no claim for intentiona l interference with contract o r prospective economic advantag e

.

T he ROF R is c ontained in Section I X. B

. of the Deale r Ag reement between MB and Asbury , which provides:

1. Rig hts Granted.

I f a proposal to sell D ealer’s princip a l assets

or transfer the majority ownership in Dealer is submitted by Dealer to [ MB ],

. . . [ MB ] has a rig ht of first refusal or option to purchase such
assets or ownersh ip interest, including any leasehold interest or realty

. [MB ’s] ex ercise o f its rig ht or option under this Section I X. B supercedes D ealer’s rig ht to transfer its interest in, or o wnership of, the Dealership. [ MB ’ s] rig ht or option may b e ass i gned by it
to any third p arty and [ MB ] hereby g uarantees the full pay

men t to Dealer of the purchase price by such assig n ee.

Under Sectio n I X. B

. 2., MB h ad six ty day s from its receipt of all data and documentation customarily required b y it to evaluate a proposed transfer of ownership within which
to ex ercise its ROF R. The A g reement does not specify any

manner by which MB is r e q uired to communicate its ex ercise of its ROF R. Other sections of the contract do specify when notice and/or written notice are required. F or ex ample, notice is required under: Sectio n I

. A. when MB revises vehicle
p r i ces; Section I I I

. E., where the Dealer ag rees to p rov i d eF R E S N O M O T O R S V

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prompt notice to MB of a ny customer complain ts; a nd Section VI I I

. C., whe r e the Dealer is required to provide written notice of any dispute o ver deductions o r offsets imposed by MB within ninety day s

. Other provisions actually indicate that notice shall be in writing and “shall be mailed to the person(s) desig nated to receive such notice, via overnig h t mail, or shall be delivered in person.” Section XI

. F

. F inally
, the D ealer Ag r eement contains a g eneral notice provision ( XI V) t h a t provides, “[ e ]x cept as otherwise specifically

provided herein, any notice required to be g iven by either party to the other shall be in writin g, s h all be de l i v e r e d p ersonally or by mail to the party at its address a s stated in this Ag r eement, and shall b e effective upon r eceipt by hand delivery

or upon mailing .”

MB ’s c ontractual ROF R is tempered b y t h e California Vehicle Code. I n particular, Cal. Veh. Code § 11713.3(t)(2) provides that it shall be unlawful fo r a manufacturer to

ex e r cise a rig ht of first refusal unless “[ t] he franchisor g ives

w r i t t e n notice of its e x ercise of the rig h t of first refusal no later than 45 day s after the franchi s or receives all of the information required pursuant to subparag rap h (A) o f
parag raph (2) subdivi s i o n (d).” T h at information must include all information g enerally utiliz e d by the manufacturer in reviewing a prospective franchisee.

I n the instant c a se, it is undisputed that MB did not receive the final necessary document, t h e W holesale F inancing Commitment F orm sig ned by Mercedes-B enz F inancial evidencing its commitment to ex tend floor p lan financing to the a ctual pu r ch as er, F resno Motors, a requirement under the stan d a rd d ealer ag reement, until May 1, 2009. I ndeed, F resno d id not become the actual p urchaser until it, Selma, and Asbury e x ecuted the second amendmentF R E S N O M O T O R S V

. M E R C E D E S -B E

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to the APA on May 1, 2009. T h a t w a s the last piece o f required information a s f ar as MB was concerned, and that

was the trig g er date for ex ercising its ROF R. A ny arg ument to the c ontrary is simply sp e c ious. MB was entitled to the doc u m e n t s establishing F resno as the purchaser a nd was entitle d t o a commitment of F loor Plan F inancing b y Mercedes-B enz F inancial to the actual purchaser.

That means that MB had until J une 15, 2009, to ex ercise its ROF R. I t is undisputed that it did so by sending a letter to Asbury by both email and f a c simile at 5:18 p.m. PDT. I t also
sent a copy of that letter to F r esno via e mail and facsimile on that date. F inally
, the following day
, J une 16, it pla ced the letter with F ederal Ex press for overnig ht delivery

. Plaintiffs
arg ue that MB ’s ex ercise was untimely because it came a fter 5:00 p.m., and improper because it w as tra n smitted electronically rather than by r eg u lar mai l. This arg ument fails for a variety of r easons. F ir s t , under the Dealer Ag re e m e n t , the o nly party entitled to any form o f communicat i o n f

rom MB of its ex ercise of the ROF R was Asbury
, w h ich h as never complained about the timing o r

manner of MB ’ s ex ercise of the R O FR

. The Dealer Ag reement is silent as to the manner by which MB was to

ex e r cise this r ig ht. Certainly
, n o t h i n g in the provisions
g ranting MB the ROF R requires MB to gi v e f ormal notice pursuant to the a g reement’s notice provision o r otherwise. Consequently
, the “notice s” provision o f the Dealer Ag reement in section XI V

. A., which g overns w hen n otice is “required to be g iven by

either party ,” does not apply

. Plaintiffs arg ue that reg ardless of the Dealer Ag r eement, section 11713.3(t)(2) of the California Vehicle Code requires the franchisor to g ive fo r t y

- five day s written notice to lawfully ex e rcise a ROF R

. This section does not provide aF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 17

R O FR
, h owever; it simply allows a franchisor to ex ercise a contractual rig ht pursuant to the terms of the contract, and is silent as to whom noti c e s h o u l d b e g iven. Nothing in the
st atute sug g e sts that notice must b e sent to the prospective transferee. 2

Plaintiffs a lso arg ue that their rig ht to notice u n d e r the
statute c an b e implied because subsection (t)(6) requires the franchisor to reimburse the proposed transferee for its

ex p enses i n c u r red in evaluating the proposed transfer. B ut that section ha s its own notice p rovision, requiring the proposed transferee to provide the franchisor a written itemiz a tion of such ex penses w ithin thirty day s of receipt o f

a written re q u e s t from the franchisor. Cal. Veh. Code § 11713.3(t)(6). Nothing in this section i m p lies that the proposed transferee is entitled to notice of the franchisor’s

ex e r cise of a ROF R. Quite the opposite. I t demonstrates that the leg islature specifically provided for notice to the proposed transferee when it wanted it to be g iven. The f act that the leg islature d id not specifically require n o t ice from the franchisor to the proposed transferee of the ex ercise of a ROF R sug g ests that it did not see the need for such notice.

F inally
, even if plaintiffs were e ntitled to notice from MB of its ex ercise of the ROF R, the notice plaintiffs received was both timely and in proper form. N othing in either the Dealer Ag reement or section 11713.3(t) ( 2 ) requires that n otice be

re c e i v e d ( o r sent) by 5:00 p.m. or the close of b usiness. A
statement (relied on by p lain t i f fs) by MB ’s Dealer Network Manag er that he considered 5:00 p.m. on J une 15, 2009, to be

2 W h en th e sta t u te req u ires an y f o rm o f co m

m u n icatio n f

ro m th e f ran ch iso r to th e p ro p o sed t ran sf eree it is s p ecif

ically sp elled ou t. S

ee Cal. Veh . Co d e § 1 17 1 3 .3 (t)(6 ).F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 18

their deadline is certainly n o t l eg ally binding on MB
, particularly when p laintiffs have not claimed that they relied
to their detriment on that statement. There is no evidence in th e r ec o r d to even remotely sug g e st that plaintiffs took any detrimental action between 5:00 p.m. and 5:18 p.m. Thus,

even if plaintiffs were e n titled to r eceive notice of MB ’s

ex e r cise of the ROF R, their receipt of that notice on J une 15, 2009, was timely

.

The form of notice was a lso proper. Section 11713.3(t)(2) requires “written n otice.” I t does n o t require
any p articular form of notice or define the manner by which such written notice must be delivered. W hen the leg islature intended to r equire written n otice be delivered in a specific
manner, it specifically did so. F or ex ample, section 11713.3(d) ex pressly states that the notic e o f the manufacturer’s approval or d isapprov a l o f a proposed sale
must “be in writing and shall be p ersonally served or sent b y certified mail, return receipt requeste d
, or by g u aranteed overnig h t delivery service that provides v er ification o f delivery and shall be directed to the fr a n c h isee.” Cal. Veh. Co d e § 11713.3(d)(2). The leg islature provided no such specification o f the notice re q u ired to lawfully ex ercise a ROF R. All that is required is some form of written notice.

Citing Cal. C i v

. Code § 1633.5, plaintiffs arg ue that electronic notice i s insufficient u n less ag reed upon b y the parties. T h a t s e ction is part of the California Uniform Electronic Transactions Act, and specifically indicates that it applies only to a transaction between parties who have ag reed
to conduct the transaction by electronic means. Cal. Civ. Code § 1633.5(b). Plaintiffs and MB had not eng a g ed in any t ransaction, electronic o r o therwise, when MB ex e rcised its ROF R. Plaintiffs’ rig ht to written notice, if they had any atF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 19

all, comes from the California Vehicle Code. Section 1633.7 of the Electronic Transfer Act provides that if a law requires

a record to be in writing
, or requires a sig nature, an electronic record or sig nature suffices. Cal. Civ. Code § 1633.7(c)–(d). Thu s , p l aintiffs’ receipt of the notice by electronic mail a nd facsimile constitutes written notice. 3

B e cause MB lawfully ex ercised its ROF R, plaintiffs have

no c laim for intentional interf erence with prospective economic advantag e, which requires plaintiffs to demonstrate that MB committed a leg al w r o n g independent from the interference. Della Penna
, 11 Cal. 4th at 393. Nor can MB ’s conduct be considered “wrong ful.” Even if MB misled plaintiffs by setting a self

- i m p osed deadline to ex ercise a nd then missing it by a few minutes, plaintiffs cannot show that they were entitled to notice of MB ’s ex ercise of its ROF R o r that they were harmed by the insi gn ificant delay

. Thus, plaintiffs also have no claim f or intentional interference with
contract. As plaintiffs themselves c andidly ad m it, “an a uto manufacturer w ho lawfully ex ercises a n une x p i r ed ROF R is
not liable for interference.” Co n s e q uently
, summary judg ment to MB on these claims is affirmed.

B

. Fraudulent Concealment

Plaintiffs’ claim for fraudulent concealment “arises from the Acknowledg ment Ag reement a nd whether MB promised

3 T h e co u rt n o t es th at d u

rin g t h e en tire co u rse o f ev en ts, m o st, if n o t all

co m m u n icatio n s, in clu d in g su

b m issio n o f d o cu m en ts b etw een p lain tif f s, A sb u ry , an d MB w ere sen t electro n ically . “ W h eth er th e p arties ag ree to

co n d u ct a tran sactio n b y electro n ic m ean s is d eterm in ed f ro m th e co n tex t

an d su rro u n d in g circu m stan ces, in clu d in g th e p arties’ co n d u ct.” Cal Civ

. Co d e § 1 6 3 3 .5 (b ).F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 20

it would g uarantee a sublease of the D e a lership premises in the event th a t MB a ssig n ed its rig ht to purchase [ the F resno Dealership] to a third party .” According to plaintiffs, they incurred unnecessary ex penses attempting to g et Asbury released from the L ease, e ither by assuming the L ease a nd the
two ten y ear r enewals or b y e n tering a new lease with the L andlord. These neg otiations stalled because the L a n d l o r d would not accept any lease w ithou t Asbury ’ s or MB ’s
g uaranty

. Plaintiffs claim that had they known that MB h ad already g u a r a

nteed their p erformance under a sublease, they would not have needed to enter those neg otiations. The district court g ranted summary judg ment to MB , concluding
t h a t p l a i n t i f

f s m i s i n t e r p r e t e d t h e A c k n o w l e d gm e n t Ag reement as a g uaranty and because the purportedly concealed facts of that ag reement were not material and had been disclosed already to plai ntiffs or were readily discoverable. W e ag ree and affirm.

Acco r d i n g to the F AC, after the conclusion of the mediation, MB ’s counsel sent a n email t o plaintiffs’ then counsel setting forth the g eneral terms o f t h e ir ag reement to assig n MB ’s rig hts u nder the APA back to F resno. Plaintiffs’ counsel replied by indicating that one issue was assuring that plaintiffs would acquire the balance o f the L e ase plus the two ten-y ear ex t e n s ions, so that plaintiffs would h ave sufficient time to make c ertain improvements that MB required. Plaintiffs’ counsel indicated that h e thoug ht MB w o u ld

ex e c ute its ROF R and obtain a le a s e assig nment from the L andlord, and that plaintiffs would then g et an assig nment o r sublease from MB

. This was necessary because the L andlord

was not comfortable w ith an a ssig n ment to a small dealer but would be comfortable with MB on the lease.F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 21

MB ’s counsel responded by informing plaintiffs’ counsel that MB would not enter into a sublease of the premises with the L andlord and would not g uarantee F resno’s performance of a sublease of the premise s. According to plaintiffs, MB intentionally withheld the fact that in the Acknowledg ment Ag reement it had already ag reed to be primarily responsible for any sublease of the premises, leaving plaintiffs to neg otiate with the L andlord on the terms of an assumption b y F resno of Asbury ’ s lease or a new lease with an o ption to purchase. MB did this, accordin g t o plaintiffs, because the L a n d l o r d w ould not ag ree to any form of lease without a g uaranty from MB or Asbury and, kn o w i n g that Asbury would not ag ree to remain oblig a ted to the L andlord without

a g uaran t y f

rom MB
, MB wanted to force plaintiffs to neg otiate terms that would release Asbury from the lease.

Under California la w , t he elements of a claim for fraudulent c oncealment a re: (1) the defe ndant concealed o r suppressed a material fact; ( 2) the d efendant was u nder a duty
to disclose the fact to the plaintiff; (3) t h e d e fendant intentionally concealed or suppressed the fact with the intent
to defraud the plaintiff; (4) the pl ai n t i f f was unaware o f the fact and would not have acted as he d i d i f he had k nown o f the concealed or suppressed f a c t ; and (5) the plaintiff was da m a ge d b y the concealment. J o nes v. ConocoPhillips
, 198 C a l

. App. 4th 1187, 1198, 130 Cal. Rptr. 3d 571, 579 (2011).

The operative provision of t he Acknowledg ment Ag reement provides:

1. Terms of Exercise

. . . . MB will be subject
to the same terms and condition s u nder the F resno Motors APA a s such terms a ndF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 22

conditions apply to Fr esno Motors. F urther,
any subsequent assig n ment by MB of its rig hts o r oblig ations under any or al l of the F resno Motors APA and the P u r chase Documents, including
, without limitation, the Sublease shall not operate as a release of MB of its oblig ations under such Ag reements. F o r avoidance of doubt, MB ex pressly ag rees that it shall be primar i l y responsible for the performance u nder t he F resno Motors APA and the Sublease. Asbury acknowledg es that MB may a ssig n its rig h t s a nd oblig ations under the F resno Motors A PA a n d the Sublease to a third party p rov i d e d that MB

r e m a i n p r i m a r i l y r e s p o n s i b l e f o r t h e performance o f any such a ssig nee with respect to the F resno Motors APA and the Sublease.

Construing this provision under the Califo rnia Rules o f Contract Construction as set out in Bank of the W est v

. Superior Court
, 2 Cal. 4th 1254, 1264, 10 Cal. Rptr. 2d 538 (1992), and the California Civil Code, th e d istrict court pro p erly concluded that the A cknowledg ment Ag reement

means only that “if [ MB ] assig ns its r ig hts under the APA, it would still remain ‘p r i marily responsible’ under the APA and sublease a s if it were the orig inal buy er, such that the assig nment ‘shall not opera t e a s a release of MB of its oblig ations.’” Fresno Motors
, 8 5 2 F. Supp. 2d at 1311. A s the court noted, the same m e ssag e was underscored throug hout the Acknowledg ment Ag reement: “th a t in

ex e r cising its rig ht of first refusal, [ MB ] will take F resno Motor[ s’] pl ace as the buy er and assume all o f F resno M otor[ s’] rig hts and oblig ations, including those u nder the sublease, a

nd that b y a ssig ning its rig ht, it will c o n t i n u e toF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 23

remain oblig ated to Asbury for the assig nee’s performance o f the sublease.” Id . at 1312. F inally , the court concluded that the term “primarily r esponsible” was not reasonably susceptible to mean a g

uaranty to the L andlord of plaintiffs’ oblig ations under a sublease. I d

. On appeal, plaintiffs do not challeng e the district court’s construction of the Ackn o w ledg ment Ag reement, o nly its conclusion that MB had not concealed from plaintiffs any material fact because that ag r eement could not be interpreted
to mean that MB g uaranteed to the L andlord pl ai n t i f fs’ performance u nder the Sublease. They contend that the fact that M B “ g uaranteed” to Asbury plaintiffs’ performance under the Sublease was material, and that had they known o f this g uaranty they would not have entered neg otiations with the L andlord.

This arg ument is belied by the f acts. Plaintiffs admit that the L andlord wanted either that Asbury remain on the L ease

or that MB issue a g uaranty to it. Asbury w a n t e d to be free from any oblig ation to the L a ndlord. Th a t is what forced plaintiffs to neg otiate either a n as s u m ption o f the master L ease ( releasing Asbury

) o r a g u aranty run n ing from MB to the L andlord, something to which MB had not and would not ag ree.

The fact that MB had “g uaranteed” plaintiffs’ p ay m ents to A sbury is irrelevant to plaintiffs’ claim on appeal. Such a g uaranty did n o t r elieve Asbury from its oblig ations to the L andlord. At most, it meant that if plaintiffs had failed to pay

on the lease, Asbury would have to pay the L andlord and then seek reimbursement from MB

. T h at is not what Asbury wanted; it wanted o ut. Consequently
, plaintiffs’ claim that MB a nd/or Asbury fraudulentl y concealed the ex istence o fF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 24

the A cknowledg ment Ag reement has no merit. W e therefore affirm summary

judg ment on this claim.

C. California Vehicle Code § 11713.3( t) ( 6)

I n Count I V of the F AC, plaintiffs seek reimbursement for

ex p enses incurred in neg ot i at i n g the APA that was usurped when MB ex ercised its ROF R. The count is broug ht under Cal. Veh. Code § 11713.3(t)(6), which provides in r e l evant part that:

I t is unlawful and a violation of this code for

a manufacturer

. . . t o d o

. . . any of the following :

(t) [ t] o ex ercise a rig ht o f first refusal o r other rig ht requiring a f

r a n chisee

. . . to sell, transfer
, o r a ssig n to the franchisor, all or a material part . .

. of the franchised business unless . . .

(6) [ t] he franchisor shall reimburse the proposed transferee for ex p enses paid o r incurred by the pr o p osed transferee in

e v a luating

. . . and neg otiating th e proposed transfer

. . . . The proposed transferee shall p rovide t h e franchisor a

w ri tten itemiz ation of those ex penses

. . . w i t h i n 3 0 d a y s o f t h e p r o p o s e d
t ransferee’s receipt of a written request from the franchisor f

or that accounti n g

. The franchisor shall make pay ment within 30 d a y s of ex ecuting the rig ht of first refusal.F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 25

MB arg ues, and the district court held, that plaintiffs have

no standing to pursue this claim because the statute provides

no private rig ht of action to p roposed transferees. W e disag ree.

Not every violation of a state statute g ives rise to a private

cause of action. W hether a party has a r ig h t t o s u e d e p ends

on “wh e t her the L eg islature has ‘manifested an intent to create such a private cause o f a c t i on’ under the statute.” Lu

v

. Hawaiian G ardens Casino, I nc. , 50 Cal. 4th 592, 5 9 6
, 236 P.3d 346, 3 4 8, 113 Cal. Rptr. 3d 498, 501 (2010) ( q uoting Moradi-Shalal v. Fireman’s Fund Ins. Cos.
, 4 6 Cal. 3d 28 7
, 3 0 5
, 2 5 0 Cal. Rptr. 116, 126, 758 P. 2 d 58, 69 (1988)). The leg islature’s intent is reveal e d throug h the lang uag e of the statute and its leg islative history

. I d

. Some
statutes contain “‘clear, understandable, unmistakable terms’ which strong ly and d irectly indicate” a n intent t o create a private cause of action, such a s when the sta t u t e ex pressly
states “that a person h a s o r is liable for a cause of action for

a particular violation.” I d

. at 597 ( quot i ng Moradi-Shalal
, 46 Cal. 3d a t 295). More c ommonly
, a statue may refer to a remedy or means of enforcing its substantive provisions. W h en a statute does not c o ntain suc h obvious lang uag e, the leg islative history

must be ex amined. Id

.

Sect i o n 11713.3(t)(6) d oes not specifically state that a prospective transferee has a cause of action to recover unpaid

ex p enses, nor does it specifically refer to a remedy or means of enforcement. I t does, however, indicate t h e leg islature’s intent that a proposed transferee have a r i gh t to recover its

ex p enses f

rom a franchi sor that usurps its contract b y

ex e r cising a ROF R. The creation of this rig ht to r ecovery , which did not p reviously ex ist, disting uishes this section from those, as in Lu , that merely codify ex isting rig hts. I n Lu , forF R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 26

ex a mple, a casino’s m a n d a tory tip pooling policy r equired dealers to contribute a p ercentag e of their tips to a p ool to be shared with o ther c a sino employ e e s. 50 Cal. 4th at 5 95. The dealers sued, alleg ing a v io l a t i o n of California L abor Code § 351, which provided that “[ n] o employ er

. . . shall collect, take, or receive any g r a t u i t y or a part thereof that is paid,
g iven to, or left for an employ e e by a patron

. . . . Every
g ratuity is hereby declared to be the sole propert y o f the employ e e or employ ees to whom it was paid, g iven, o r left for.” Id . at 597–98.

T he California Supreme Court, after reviewing t h e s t a t u t e , the entire statutory scheme, and the leg islative history
, h eld that the section did not create a p rivate ca u s e o f action, concluding that it simply afforded what courts had long held: “that g r atuities ordinarily b e l ong ed to the waiter or waitress absent a contrary ag reement

. . . [ and] did n ot r e flect a leg islative intent to g ive employ ees a new st a t u tory remedy to recover any

misappropriated g r atuities.” I d . at 601.

Unlike the statute in Lu
, the California Vehicle Code, a nd in particular subsection (t)(6), did cr e ate new rig h ts a nd

rem e d ies for displaced prospective buy ers. Prior to enactment, such buy e rs had n o rig ht to recoup their ex penses from the proposed seller unless the y had contractually
arrang ed to do so.

To this end, MB arg ues that the California Vehicle Code

c r e a t e s new rig hts and oblig ations between manufacturers a n d dealers only
, b ut not for proposed transferees. I t sug g ests that subsection (t)(6) is desig ned to protect the fr a n chisee from suit by the proposed buy e r for the u nnecessary ex penses. F o r

e x a mple, the instant Dealership Ag reement provides that if,

as a result of MB ’s ex ercise of its ROF R, the dealer (Asbury )F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 27

i s c ontractually oblig ated to reimburse the initial buy er f o r

ex p enses i n c urred in connection with the B uy /Sell A greement, MB shall r eimburse the dealer for such c osts i n

an amount “ up to but no t ex ceeding F ifty Thousand D ollars ($50,000.00).” Under MB ’s theory
, subdivision (t)(6) would trump the contract and allow pay ment to the initial buy er o f all its fees.

This ar gu m e nt is belied by the plain lang uag e of the statute, which requires the manufacturer to pay a l l of the proposed buy er’s reasonable e x p enses directly to that party

. Had t h e l eg islature w anted to protect only the dealer as MB has s u g g ested, it would have simply required the manufacturer t o reimburse the dealer f or all ex penses it was contractual l y o b l i g ated to p ay to the initial buy er. I t did not do so. I nstead it g ave the initial buy er a statutory rig ht to

recover its reasona

b l y incurred ex penses from the manufacturer, even in the absence of a contractual rig h t.

MB also arg ues that th e o n l y private cause of action created by the Vehicle Code is contai n ed in section 11726, which provides that any licensee sufferin g pecuniary loss because of a willful failure by ano t h e r licensee to comply with any pro v isions o f the Code may recover damag es a nd attorney ’s fees in court. MB arg u es that because the cause o f action in section 11726 is limited to licensees, the leg islature intended no private cause of action for proposed transferees. Section 11726 is a remedial section, however, not a standing section, and it “merely speci fi e s the remedy available for violations of subsection (e) and does not e x pand or restrict the
scope of those entitled to sue under it.” Larry M enke, Inc. v

. DaimlerChrysler Motors Co.
, 171 Cal. App. 4th 1088, 1094, 90 Cal. Rptr. 3d 389, 394 (2009).F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 28

Menke demonstrate s the error in MB ’s position. I n Menke
, an a

utomobile dealer and its proposed transferee sued the manufacturer for v i o l ations of § 1 1713.3(e) after the manufacturer refused to appr ove the d ealer’s application to transfer its dealership. Subsection (e) makes it unlawful a nd

a violation of the Vehicle Code for any manufacturer “ [ t ] o prevent, or attempt to prevent, a d ealer from r e c e i ving fair and reasonable compensation for the value o f the franchised business,” and further provides that “ [ t] here shall n ot be a transfer or assig nment of the d e a l e r ’s franchise without the
consent o f the manufacturer o r d i s tributor, which consent shall not be unreasonably withheld or conditio ned upon the release

. . . of a claim or defense by the dealer.” Ca l

. V eh

. Code § 11 7 1 3

. 3(e). Concluding that the prospective transferee lacked standing under subsection (e), Menke h eld that the terms of the section could not be clearer: “it protects franchise o wners ag ainst manufact u rer conduct that would prevent the dealer from receiving fair and re a sonable compensation for the v alue o f the franchised business. The
statute say s nothing about p otential purchasers.” Menke
, 171 Cal. App. 4th at 1093. Notably
, despite the lack of any specific lang uag e strong ly creating a rig ht of action, the court did not conclude that there wa s n o rig ht of action under the statute, simply that a prospective transferee or purchaser h ad

no rig h t to sue the manu facturer for failure to approve the sale. I ndee d
, it specifically a ffirmed a nd quoted the trial court’s holding that “[ t] h e plain lang uag e of the code section makes clear that it is the dealer selling the franchise who has standing to sue , a

nd n ot a prospective buy er.” Id

. (emphasis added).

I n c o ntrast to subsection ( e), the plain lang uag e o f

s u b s ec tion ( t)(6) speaks entirely to the rig ht of the propose d transferee, and say s nothing about current franchisees. Thus,F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 29

following the reasoning

in Menke , the plain lang uag e makes clear that it is the proposed transferee that has standing to sue, and not the curre n t f

r anchisee. A ny other c onstruction renders the subsection meaning less. I t would g rant a p r o p osed transferee the rig ht to receive pay ment for i t s

ex p enses without the abil i ty to enforce that rig ht in any meaning ful manner. B ecause we c o nclu d e that plaintiffs have a n implied rig ht of action u nder sect i o n 11713.3(t)(6),

we reverse the summary judg ment t o M B o n Count I V, a nd remand for proceeding s consistent with this conclusion.

D. Unfair Competition ( UCL)

F inally
, we affirm the d i s t r i c t court’s g rant o f summary judg ment to MB on plaintiffs’ claim under the California Unfair Competition Statute, which prohibit s a n entity from
eng ag ing in “unfair competition,” defined as “an y unlawful, unfair o r fraudulent business act o r practice.” Cal

. Bu s

. & Prof. Code § 1 7200. Section 17200 “bo r r o w s violations o f

o t h e r laws and treats these violations, when committed pursuant to business activity
, as u nlawful practices independently actionable under B us. & Prof. Code §17200 et seq

. and subject to the d istinct remedies provi d e d thereunder.” F

armers Ins. Exch. v. Superior Court
, 2 Cal. 4th 377, 383, 6 Cal. Rptr. 487, 491, 826 P.2d 73 0
, 7 3 4 ( 1 992) (internal quotation marks omitted).

I n the F AC plaintiffs based their UCL c l a i ms on the alleg ed claims for tortious interference, providing unlaw f ul

no t i c e u n d e r s e c t i o n 1 1 7 1 3

. 3 ( t ) (2 ), and fraudulent concealment. B ecause the court has aff i r m ed summary judg ment to M B on all those claims, MB is entitled to summary judg ment on the UCL claims as well.F R E S N O M O T O R S V

. M E R C E D E S -B E

N Z 30

Additionally
, the remedy for a UCL violation is either injunctive relief or restitution. See Cal. B us. & P r o f

. C o de § 1 7 2 0 3. T he restitutionary relief is limited to money o r property lost by the plaintiff and ac q u ired by the defendant. Kwikset Corp. v. Superio r Court
, 51 Cal. 4th 310, 335–36, 1 2 0 C al. Rptr. 3d 741, 761–62, 246 P.3d 877, 894 (2001). “Restitution under § 17203 is confined to resto ration of any interest in money or property , real or personal, w h ich may have been acquired by means of such unfair competition.” Id

. (emphasis in o rig inal) (internal quotation marks omitted). As Kwikset noted, the economic injury caused by an unfair busi n e s s p ractice may often involve a loss by the p laintiff without any corresponding g ain b y the defendant. Such is the instant c ase, a t least as to plaintiffs’ remai n i n g claim under section 11713.3(t)(6). Under these circumstances, injunctive relief is the o n l y a v a ilable remedy

. Kwikset
, 51 Cal. 4th at 336.

B e cause plaintiffs d o not seek injunct i v e relief and have

no claim for restitution u nder section 172 0 3
, M B is entitled to summary

judg ment on the UCLclaims.

AF F IRMED IN P ART, REVER S ED IN P ART a nd REMANDED for proceeding s con s i s t ent with this opinion. Each party

shall bear its own costs on appeal.