Filed 2/6/15 Siechert & Synn v. A pple, I nc. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SIECHERT & SYNN et al., Plaintiffs and Appellants,

v. APPLE INC., Defendant and Respondent. H036402 (Santa Clara County Super. Ct. No. 1

- 05

- CV

- 045719)

Plaintiffs Siechert & Synn dba Techsource , Joe Weingarten dba Weingarten Gallery , Pamela Rogers dba Horizon Resources and Horizon Computer Resources , Omnitech Computer , and Computer Outlet ap peal from the denial of t heir motion to certify a class of “Apple Authorized Specialists” in their action against defendant Apple
Inc. Plaintiffs were formerly engaged in the business of selling Apple computers and
other Apple products. The y sued Apple, alleging that the company’s dec ision to open its
own retail stores was part of a “f raudulent scheme and plan ” to drive its independent
resellers out of business

. Plaintiffs asserted that Apple concealed th is scheme and
induced the m to continue doing business with the company by assuring them that its own

s tores would operate on a “ level playing field ” with theirs. They alleged among other things that Apple favored its own stores to plaintiffs’ detriment by “deliberately”
withh olding new product s from resellers while making those products “readily available”2

to its own stores and by “siphon ing off” the resellers ’ customers. Plaintiffs also alleged that Apple gave “ ‘ secret rebates ’ ” to favored resellers such as CompUSA and Fry’s but not to Specialists.
The trial court ’s denial of plaintiffs’ class certification motion was based on findings that they failed to show t h at common questions predominated over individual
issues or that a c lass action w ould be superior to individual lawsuits

. We affirm the
order.

I. Background Historically , Apple sold its products to consumers mainly through independent
resellers. These included large national chain s like CompUSA , regional chains like Fry’s , and smaller establishments like those of the plaintiff Specialists. Specialists are a subset of the larger group of Apple ’s authorized reseller s . They

are so named because they specialize in the sale and service of Apple computers. Special ists sign annual Specialist c onfirmation letters in addition to the a uthorized

r eseller a gre ements that all Apple resellers sign

. Specialists comprise a diverse group of small to medium

- sized businesses pursuing various business plans and target ing different customers in markets across the country. Some Specialists focus on retail sales

. Others serve business customers only.
S ome target specific industries like advertising or entertainment. Some Specialists have multiple stores while others have only a single storefront

. Some have no storefront at all. Those with storefronts operate in a variety of different locations. Some are in high

- traffic shopping malls or on prominent shopping streets, while others are in places that attract
few to no cas ual browsers. Some Specialist s’ stores are just blocks away from an Apple

store

. Others are located in areas with multiple Apple stores. Others are hundreds of miles from the nearest Apple store. Some Specialists keep millions of dollars of product3

in inventory. Others (like plaintiff Horizon) carry little or no inventory , preferring to purchase products when their customers place orders. Apple’s share of the U nited States personal computer market declined dramatically in the 1990 ’ s , even after the c ompany started selling computers online in the
late 1990 ’ s

. In an effort t o reverse the decline , Apple decided to supplement its reseller
and online sales channels with its own retail stores

. Its goal was to increase market share by convincing the 95 percent of U nited States consumers who did not already own Apple computers to buy them

. The advertising slogan that proclaim ed the May 2001 opening of
the first Apple stores announced this goal : “ ‘ 5 down. 95 to go. ’ ”
Plaintiffs filed t his action in February 2005 on behalf of two groups, a consumer group and a reseller s ’ group. Th is appeal concerns the resellers’ group. 1 Plaintiffs filed
their Eighth Amended Complaint in February 2009

. It broadly defined the reseller class
to include “[a]ny Apple reseller in the United States who sold at retail Apple computer products, Apple service, AppleCare service contracts, and/or repair services directly or indirectly at any time between January 1, 1995, through the present . . . .” The complai nt asserted eight causes of action on behalf of the reseller class : (1) breach of contract, (2) violation of the Unfair Competition Law ( UCL; Bus. & Prof. Code, § 17200 et seq.) , 2 (3) misappropriation of trade secrets, (4) fraud and deceit , ( 5 ) breach of the covenant of good faith and fair dealing, ( 6

- 7 ) violations of the Cartwright Act (later dismissed without prejudice) , and ( 8 ) violatio n of the Unfair Practices Act ( UPA; § 17000 et seq.)

. The complaint alleged the following facts

. In 1997, Apple began developing plans to open its own retail stores “ with the specific intent ” to drive its independent resellers
out of business. Because t here was a limit to the number of stores it could open each year

1 We decided t he consumer group’s separate appeal in the related case of Branning et al. v. Apple Inc. (H036343).

2 Subsequent statutory references are to the Business and Professions Code unless otherwise noted.4

and b ecause its resellers were an important sourc e of income , Apple wanted to continue its relationship with its resellers until it could establish its own chain of store s. Apple
knew its resellers would be concern ed about the impact of the Apple stores on their own sales, so it “devised a fraudulent scheme and specific, uniform representations to be made
to all [ r ] esellers ” to induce them to continue doing business with Apple

. The “ series of false representations ” or “ mantra” that Apple allegedly developed included statements (1 )
that the purpose of the Apple stores was to increase the company’s share of the computer market and not to take sales away from resellers; (2) that the stores would be

“ ‘ showcase’ stores” and have “a ‘billboard effect ’ ” that would increase resellers’ s ales; (3) that “ ‘ [a]ll ships will rise with the tide ’ ” ( meaning that resellers’ sales would rise along with the retail stores’ sales ) ; and (4) that Apple would ensure “ ‘ a level playing
field ’ ” ( meaning that it “ would not give any special preferences to the Apple retail stores that would disadvantage the independent Resellers” )

. Plaintiffs alleged that Apple distributed a bulletin to resellers b efore the first Apple store opened in May 2001

. It contained “specific assurances ” that the Apple stores “would be stocked the same as other [r]esellers so as not to have any ‘priority on product supply or delivery,’ that they would not get demo units other than on the schedule of other [r]esellers, and that the Apple retail stores wou ld not have better pricing from Apple than the pricing given by Apple to the [r]esellers.” Plaintiffs alleged that Apple repeated these assurances in press release s and at store opening s , in various meetings with
resellers , at a 2004 conference, and at th e company ’s 2005 annual meeting. T he resellers reasonably relied on the representations, continued their relationships with the company , and continued to invest millions of dollars in their business es to promote sales of Apple products. Plaintiffs (with the exception of Siechert & Synn, wh ich dismissed its fraud cause of action) and the reseller class suffered “severe monetary damages” as a direct result of Apple’s intentional misrepresentations and concealment.5

Plaintiffs alleged that a s part of its scheme to drive them out of business, Apple (1) located its retail stores in close proximity to successful resellers ’ stores “for the specific purpose of siphoning off” their customers; (2) intentionally failed to provide resellers with Apple merchandi se, goods, and services and support for Apple products sold and/or serviced by the resellers; (3) deliberately withheld new products from resellers while making them available to the public through the Apple stores; (4) misrepresented to the
resellers that new products were unavailable while providing them to the Apple retail and online stores; (5) “bypassed” resellers and u sed resellers’ confidential customer information “to contact, solicit and deal directly with” resellers ’ customers and prospects ; (6) f ailed to properly honor warranties sold by resellers; (7) “consistently failed to acknowledge and respond” to critical questions from the resellers; and (8) failed and refused to provide proper credits to resellers when credits were clearly due to them.
P laintiffs also alleged that Apple misrepresented the nature and quality of the equipment
it sold to resellers, shipped defective replacement parts and/or equipment to them , and failed to appropriately reimburse them for warranty work. Plaintiffs alleged t hat they and the reseller class were “damaged in an amount to be proven . . . at trial, but in an amount in excess of $25,000.00.” The complaint alleged that Apple also engaged in un fair practices by (1) giving
favored resellers like CompUSA and Fry’s “ secret discounts, allowances, rebates and development funds ” not offered to other resellers ; (2) selling service contracts to CompUSA at a substantial discount; (3) providing CompUSA with Apple

- paid employees; (4) accepting defective products from Apple st ores and from preferred
resellers but not from other resellers ; and (5) providing cooperative advertising allowances, sales promotions, and market development funds to Apple stores and to preferred resellers but not to other resellers. Plaintiffs alleged that t hese secret rebates gave the favored resellers a major pricing advantage that had the inherent tendency to6

destroy competition and caused plaintiffs injury in an amount not yet ascertained but in excess of $25,000.
In November 2009, plaintiffs moved to certify a much narrower class than th e all

resellers class the ir Eighth Amended Complaint defined

. They defined this narrower class as “ ‘ [a]ll persons in the United States who were Apple Authorized Specialists on January 1, 2001 , or became Specialists between that date and January 1, 2004. ’ ”
Plaintiffs ’ memorandum of points and authorities focused on Apple’s alleged secret plot to put them out of business and on the “scripted misrepresentations” that it allegedly
made to convin ce them to continue doing business with Apple until it could establish its

own stores

. Plaintiffs argued that “Apple’s plan, its execution of that plan, its uniform omissions and misrepresentations to the class and the legal and factual effect of its
cond uct on the Specialists ” could be proven with common evidence and that “[e]ven damages . . . can be computed on a classwide basis.” Plaintiffs argued w ith respect to their contract causes of action that Specialists signed form contracts and that Apple ’s common “ plan to destroy the Specialists ” targeted
the entire class and deprived the m of the benefits of their contracts

. They asserted that “[w]hether Apple unfairly favored its own stores in allocating new product ” was “ one of the many factual issues sha red by the class.”
Plaintiffs argued with respect to their fraud cause of action that the element of reliance was no impediment to class treatment because reliance would be presumed “in light of the uniformity and materiality of Apple’s omissions and re presentations to the class.” They claimed that whether Apple gave certain stores a pricing advantage over Specialists in violation of the UPA could also be established by proof common to the
class

. Six of the seven plaintiffs submitted declarations in s upport of the motion . Several
of their lawyers , their litigation con sultant T homas Santos (a former Apple authorized7

reseller who was pursuing an individual lawsuit against Apple) , and their damages expert D. Paul Regan also provided declarations

. Apple opposed the motion , arguing among other things that class certification
could not be based on an alleged “scheme” to drive Specialists out of business because
there was no substantial evidence that any such scheme ever existed. Apple pointed out
tha t p laintiffs ’ reliance on an analys is that a consulting firm prepared before the decision
was made to move forward with the retail stores project did not evidence Apple’s state of mind and did not in any event establish a plan to put the resellers out of business

. It
submitted evidence controverting plaintiffs’ contention that its plan was to “cannibalize” its resellers’ sales, noting that any such plan would have doomed the project. “This is common sense,” Apple argued . “ [ I ] t would make no sense for Ap ple to incur the expense of opening retail stores in locations like 5th Avenue in New York or Michigan Avenue in Chicago just to sell to the same customers who otherwise would have bought from the Specialists.” Apple declared unequivocally t hat no scheme to put Specialists out of business
ever existed

. It s ubmitted business plans reflecting its continuing commitment to support
its resellers in general and Specialists in particular. Apple also presented evidence that S pecialists as a group have succeede d since 2001, as shown by the substantial growth of the company’s sales to the group since the Apple stores opened

. Many individual Specialists saw their sales of Apple products double or triple or more since 2001. Twelve of those Specialists submitted declarations describing the ir businesses’ remarkable success since 2001 , which many attribute d in part

to th e increase in brand awareness that resulted from the opening of the Apple stores. Apple’s exper t economist Michael Keeley, Ph .D. explained that Apple ha d no incentive to undermine Specialists or other resellers

. Nor did it have an y incentive to invest billions to launch retail stores that would do no more than make sales that Specialists and other resellers would have made anyw ay. I t is a “common mis conception ” that8

manufacturers earn more profit by taking over retailing from their independent resellers. In fact, t he opposite is true. M ultiple retail channels allow Apple to serve a broader range
of customers than it could ser ve through a single channel like the Apple stores. Keeley pointed out that Apple did not need to resort to the actions th at plaintiffs alleged . If a Specialist were damaging Apple’s brand image, Apple could end its relationship with that Specialist simpl y by terminating its contractual relationship. It would not be in Apple’s
interest to r esort to the actions that plaintiffs alleged because those actions would harm its
customers and its reputation. Apple urged as a second basis for denying plaintiffs’ motion that individual rather
than class issues would predominate. It addressed plaintiffs’ deception

- based claim s first, arguing that courts have certified fraud claims for class treatment “only in exceedingly rare cases where there was clear evidence th at defendants made identical representations to each class member , ” which was not the case here. Apple emphasized
the absence of evidence that any Specialist received any of the internal Apple documents
that plaintiffs mischaracterized and purported to re ly on

. It noted plaintiffs’ failure to identify any uniform oral misrepresentations. It submitted evidence showing wide
variation in what (if anything) various Specialists claimed they were told and how they interpreted those statements

. Apple argued t hat individual issues would also predominate with respect to
reliance on the alleged fraud

. It maintained that plaintiffs Siechert & Synn and Weingarten could not prove reliance because statements that Tom Siechert and Weingarten made and broadcasted to their fellow Specialists as early as 2001 established
that neither had b elieved the alleged misrepresentations. It pointed to Seichert’s deposition testimony that he was “sure” there were other Specialists who also disbelieved “what we were being told.” Apple also submitted evidence that Rogers and Omnitech’s Frank O’Neil both
admitted that they would have become Specialists whether or not Apple promised them9

“priority allocation

. ” Both continued to sign Specialist contracts even aft er they assertedly concluded that Apple lied to them about its retail stores. Apple produced
evidence that o ther named plaintiffs and many other Specialists continued to sign Specialist agreements after January 2004, when plaintiffs claim ed the company’s “true
intent ion” to put them out of business was revealed. Apple argued that plaintiffs’ fraud claim also raised “inherently individualized”
statute of limitations issues. The complaint was filed on February 17, 2005

. In 2008, the
trial court ruled that the fraud claims were barred by the three

- year statute of limitations (Code Civ. Proc., § 338, subd. (d)) unless plaintiffs could establish delayed discovery. Apple argued that the 2008 ruling applied to all proposed c lass members , who would have to prove when and how they discovered the alleged fraud and establish that they
could not have discovered it earlier. Apple argued that plaintiffs ’ good faith and fair dealing cause of action also raised predominately individ ual issues

. Plaintiffs asserted that their Specialist contracts promised them “ ‘ priority product allocation ’ ” and that Apple’s alleged scheme to

“ ‘ starve ’ ” them of new products deprived them of the benefit of those Specialist

contracts. Apple presented evidence that the a greement that every reseller signs has always give n Apple the right to allocate inventory on a basis that it in its sole discretion deems equitable. It noted that “priority product allocation” was no t defined in any of the
documents that plaintiffs relied on . It submitted evidence that each named plaintiff interpreted th ose words quite differently. Apple argued that in these circumstances, determining the meaning of th e phrase would require the c ourt to consider extrin sic evidence of what each Specialist was told and what documents each received. E ven if plaintiffs had evidence that there was a scheme to starve them of new products , “each class member still would have to prove that it was impacted” by the scheme

. To s upport its claim that this could not be done by class proof, Apple submitted evidence showing10

that “constrained” 3 product was allocated to Specialists o n an individual basis , with various considerations affecting how much a particular Specialist receive d

. For example,

o nly some Specialists participate in a program that allow s them to receive certain products prior to release. Specialist s in higher tiers of the program can be provided with product before Apple supplies those in the lower tiers. And no t all Specialists are affected by every product shortage because not all of them order every constrained product. Specialists that target businesses , for example, typically focus on computers , not iPods. Apple argued that plaintiffs’ own experiences confi rmed that individual issues
would predominate with respect to the ir good faith and fair dealing claim

. It produced
evidence that Omnitech and Weingarten had access to constrained product at the same time as the closest Apple r etail stores , whic h were 40 to 70 miles away , and that it shipped constrained product to Omnitech and Weingarten even before it filled all of the nearby retail stores’ orders. It also presented evidence that Specialists experienced delays in receiving product for reasons that had no thing to do with Apple’s allocation decisions

. A former Omnitech employee testified that Omnitech experienced delays because of its
credit problems. Other S pecialists ordered their products from third

- party distributors , who made their own allocation dec ision s. Thus, Apple argued, resolving allocation

related claims would require inquiry into facts unique to each Specialist and unique to
each order. These would include when the order was placed, what quantity was ordered, whether it was ordered from App le or from a n independent distributor, when it was received , whether the Specialist had the cash or credit to pay for the product , whether any delay was caused by circumstances that had nothing to do with the alleged scheme , whether any Apple retail stores in the Specialist ’ s market had access to the product when

3 A product is “constrained” when the orders for that product exceed Apple’s available inventory. During times of product constraint, every channel (including Apple’s retail store channel) wants more of the constrained product than it receives.11

the Specialist did not , and whether the Specialist would have been able to sell more product had it received more

. Apple maintained that these individual issues would “overwhelm” any common issues. Apple next addressed plaintiffs ’ secret rebate s claim, asserting that it was unaware of “a single case certifying this kind of claim for class treatment.” Apple argued that
such claims ar e not amenable to class treatment because each plaintiff must prove competitive injury . Specialists who were not located near any of the resellers that Apple allegedly favored or who did not compete with those resellers for some other reason could not pro ve competitive injury. Those who did compete with an allegedly favored reseller would have to prove that the rebate s given to the reseller , and not any other factors, caused the Specialist to lose sales or profits. That inquiry would involve facts unique to each member of the proposed class. Apple next addressed injury, causation, and damages issues , arguing that these were inherently individualized inquiries that would overwhelm any common questions. It pointed to expert economist Keeley’s report, whi ch identified the many company

specific factors that would affect any analysis of whether Apple’s alleged conduct harmed a particular Specialist and the extent of any such harm. Apple argued that plaintiffs’ testimony and the 12 declarations from non

- plai ntiff Specialists whose businesses have enjoyed tremendous success illustrated that each individual Specialist’s profitability is determined by a myriad of factors. Apple argued that plaintiffs could not “finesse ” this issue with the ir expert Regan’s opin ion that “it is possible to calculate the economic damages suffered by the Apple Specialist Resellers on a class

- wide basis

. ” Apple emphasized that Regan described his opinion as a hypothetical damages model that
was not based on actual data

. Regan admitted that he h ad n ot finalized or tested the
model. Regan also admitted that he could not offer any opinions on whether any of the
named plaintiffs suffered economic damages. Apple dismissed Regan’s opinion as
irrelevant . It noted that California li mits recovery for injury to a business to lost net12

profits . Regan admitted that his hypothetical model would calculate only lost gross profits. The trial court took the matter under submission after a lengthy hearing at which
both sides utilized slide p resentations. The court issued a written order denying the
motion. The court found that plaintiffs “did not meet their burden of showing that common questions of law or fact would predominate over the questions affecting individual members.” The court specifically found that “[w]ith regard to the fraud

- based
claims

. . . , each class member will need to prove delayed discovery in order to get past Apple ’ s statute of limitations defense. This is an inherently individualized inquiry.”

“ Further, each me mber will need to present highly individualized evidence regarding the representations he or she heard, his or her reliance upon the representations, whether the damages suffered were proximately caused by the fraud ( as opposed to other unique factors such as their market, location, state of the local economy, level of service at the store, and management expertise), and the amount of damages. ”

“ With regard to contract

- based claims

. . . , individual issues will also predominate. The evidence shows that each of the Plaintiffs has a highly individual
claim with regard to allocation. The same would be expected of each member of the Specialist Class. In other words, there is no commonality with regard to which products were wrongfully withheld from members of the Specialist Class. Further, there are also
substantial variations in the confirmation letters that Apple provided to members of the Specialist Class during the Class Period. Each member of the Specialist Class would have to present highly individu alized evidence regarding which products were withheld or delayed, when those products were ordered, when they were received, whether Apple retail stores and/or Apple Online was treated more favorably as to allocation of those products, whether the member ’ s own conduct (such as credit problems or conditions attached to an order) caused the withholding or delay, whether the withholding or delay of those products proximately caused damage, and the amount of damage. ”13

“ With regard to the misappropriation of t rade secrets claims

. . . , i ndividual issues would predominate as to the existence of a trade secret, the use or misappropriation of the trade secret, proximate causation, and amount of damages. ” “ With regard to the secret
rebates claims

. . . , individual issues would predominate as to whether each class
member suffered a ‘ competitive injury. ’ ” As a second basis for its denial of class certification, the court found that “all of the factors point to individual lawsuits being superior to a clas s action.” Plaintiffs filed a timely notice of appeal from the trial court’s order.

II. Discussion
Plaintiffs challenge the denial of their motion. They contend that the trial court “incorrectly applied class certification standards, used improper criteria and made erroneous legal assumptions and unsupported, irrelevant factual findings.” We disagree.

“ ‘ The certification question is “essentially a procedural one that does not ask whether an action is legally or factually meritorious. ” ’ ” ( Brinke r Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1023 ( Brinker ).) “Presented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be pre sented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them.” ( Brinker , at p. 1025.) “As the focus in a certification dispute is on what type of questions

— common or individual

— are likely to arise in the action, rather than on the merits of the case [citations], in determining whether there is substantial evidence to support a trial court’s
certificatio n order, we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citations.] ‘Reviewing courts consistently look to the allegations of the14

complaint and the declarations of attorneys representing the plaintiff class to resolve this question. ’ ” ( Sav

- On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327.) “The party advocating class treatment must demonstrate the existence of an ascertain able and sufficiently numerous class, a well

- defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citations.] ‘In turn, the “community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent
the class. ” ’ ” ( Brinker , supra , 53 Cal.4th at p. 1021.) “The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would
be advant ageous to the judicial process and to the litigants.’ . . . A court must examine the allegations of the complaint and supporting declarations [citation] and consider whether the legal and factual issues they present are such that their resolution in a sin gle class proceeding would be both desirable and feasible. [ F n. omitted] ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages. ’ ” ( Brinker , supra , 53 Cal.4th at pp. 1021

- 1022.) “[The court] must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any eleme nts that may require individualized evidence.” ( Brinker , at p. 1024.)

A

. Standard of Review

“ ‘ The decision [whether] to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reve rsing only for a
manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the15

efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.” [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’ [Citations.] Predominance is a factual question; accordingly, the trial court ’ s finding that common issues predominate generally is reviewed for substantial evidence. [Citation.] We must ‘[p]resum[e] in favor of the certification order .

. . the existence of every fact the trial court could reasonably deduce from the record

. . . . ’ ” ( Brinker , supra , 53 Cal.4th at p. 1022.) “The appeal of an order denying class certification presents an exception to the general rule that a reviewing court will look to the trial court ’ s result, not its rationale. If the trial court failed to follow the correct legal analysis when deciding whether to certify a class action, ‘an appellate court is required to reverse an order denying class
certification .

. . , “even though there may be substantial evidence to support t he court ’ s order. ” ’ [Citations.] In other words, we review only the reasons given by the trial court for denial of class certification, and ignore any other grounds that might support denial.” ( Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816 , 828

- 829.)

B. Predominance

— Fraud Claim Plaintiffs contend that the trial court erred in concluding that they failed to establish the predominance of common questions with respect to their fraud claim

. We disagree.
1. Fraud Claim

— Statute of Limitations Plaintiffs challenge the trial court’s finding that Apple’s statute of limitations
defense to their fraud claim would require an inherently individualized inquiry since “each class member will need to prove delayed discovery in order to get past” that
def ense. They claim t he court was “ legally wrong to believe that it could deny16

certification based on indi vidual statutes of limitations issues” and that it “also erred in concluding that individual issues arose . . . .” We deem these arguments forfeited by plaintiffs’ failure to raise them below in response to Apple’s contention that the ir fraud
claim raised individual ized statute of limitations and delayed discovery issues

. ( Fairbanks v. Farmers New World Life Ins. Co. (2011) 197 Cal.App.4th 544, 552.) We would reject these arguments even if we assumed that plaintiffs preserved
the m

. In examining whether common issues of law or fact predominate, “ [t] he affirmative defenses of the defendant must also be considered, because a defendant may
defeat class c ertification by showing that an affirmative defense would raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues. [Citations.]” ( Walsh v. I KON Office Solutions , Inc. (2007) 148 Ca l.App.4th 1440, 1450

. ) The trial court did not err in considering whether Apple’s statute of limitations defense would raise predominately individual issues. ( K ennedy v. Baxter H

ealthcare Corp. (1996) 43 Cal.App.4th 799, 811 .)
T he trial court’s finding that Apple’s statute of limitations defense to plaintiffs’
fraud claim would require an inherently individualized inquiry was supported by
substantial evi dence

. To establish delayed discovery , class member s will need to prove when and how they discovered the alle ged fraud and why they could not have discovered
it sooner

. ( McKelvey v. Boeing North America n , Inc . (1999) 74 Cal.App.4th 151, 160.)
This cannot be done with common evidence because there was substantial evidence that
each of the named plaintiffs ha s a different story. Apple submitted evidence that Siechert complained to the Federal Trade Commission in May 2001 , accusing Apple of fraud and asserting that it was trying to eliminate its resellers. He began disseminating those views
via t he “SpeciaList” listserve in May 2001 , cautioning his fellow Specialists n ot to believe what Apple was telling them about the retail stores. Siechert eventually
dismissed his fraud cause of action.17

P laintiff Weingarten began broadcasting views similar t o Siechert’s on the listserve in 2001, warning other Specialists that Apple “will continue the stores and try and put every one of you out of business.” Notwithstanding this and similar 2001 e

mail s, t he complaint alleges ( and Weingarten declared ) that he did not discover Apple’s “true intentions” to drive the resellers out of business until January 1, 2004 , when Apple executives “failed to communicate again with” him about issues he raised in a 2003 e

mail and later discussed with them

. P laintiff s Rogers, Mel Weisblatt of Computer Outlet , and O’Neil claimed that they discovered Apple’s “true intentions” at different times and in varying ways in the latter part of 2003 and early 2004.
Th e e

- mail s that Siechert and Weingarten broadcast ed to the li stserve in 2001 , Weingarten’s declaration, and Siechert’s dismissal of his fraud cause of action supported
a conclusion that when and how each member of the proposed class discovered the alleged fraud and why he or she could not have done so earlier cannot be proven by
common evidence. Substantial evidence thus supported the trial court’s finding that Apple’s statute of limitations defense to plaintiffs’ fraud claim would require an individualized inquiry.
P laintiffs criticize the court’s “unexplained conclusion” that their UCL claim also
raised individual statute of limitations issues

. The y base their argument on the following paragraph from the court’s order denying certification: “ In this case, Plaintiffs did not meet their burden of showing that c ommon questions of law or fact would predominate over the questions affecting individual members. With regard to the fraud

- based claims (9th and 11th causes of action) , each class member will need to prove delayed discovery in order to get past Apple ’ s st atute of limitations defense. [Italics added.] This is an inherently individualized inquiry. A defendant may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and
that the issues presented by that defense predominate over common issues. [Citation.] Further, each member will need to present highly individualized evidence regarding the18

representations he or she heard, his or her reliance upon the representations, whether the damag es suffered were proximately caused by the fraud ( as opposed to other unique factors such as their market, location, state of the local economy, level of service at the store, and management expertise), and the amount of damages. ”
In the context of this case, we think the reference to plaintiffs ’ ninth cause of action (for violation of the UCL) was a mistake. Plaintiffs’ motion papers confusingly
referred to “the class’s deception

- based claims

— their claims of fraudulent business practices under the UCL and common

- law fraud.” But their eighth amended complaint
does not assert a claim for fraudulent business practices. Their ninth cause of action for unlawful business practices in violation of the UCL is based on allegations that Apple
sold its resellers used and/or refurbished products as new. It says nothing about a scheme
to drive the resellers out of business. To the extent that plaintiffs have a claim for fraudulent business practices under the UCL based on allegations that Apple enga ged in any such scheme, that claim is unpleaded. Apple did not argue in opposition to class certification that plaintiffs’ UCL claim

was time

- barred

. It argued that the ir fraud claim raised “fundamental individual issues regarding the statute of limitat ions.” The trial court had in 2008 ruled that the fraud
claim was time

- barred unless plaintiffs could establish delayed discovery. The 2008 order said nothing about the UCL claim. Against this background, we conclude that the trial court’s mention of pl aintiffs’ ninth cause of action was a mistake rather than a “conclusion” that the UCL claim raised individual statute of limitations issues.
2. Fraud Claim

— Reliance Plaintiffs challenge the trial court’s finding that “each member will need to present highly individualized evidence regarding the representations he or she heard [and] his or
her reliance upon the representations .” They a ssert that individual issues will not arise
because “ reliance is presumed or inferred upon a showing that the information misstated or concealed was material to a reasonable person.” We disagree.19

The cases plaintiffs rely on to support their argument are inapposite. In re
Tobacco II Cases (2009) 46 Cal.4th 298 ( Tobacco II ) and Massachuse tts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282 ( Massachusetts Mutual ) are UCL fraudulent business practices cases

. “ ‘ [T]he “ fraud ” contemplated by section 17200 [ ]

. . . bears little resemblance to common law fraud or deception. ’ ” ( Massachusetts
Mutual , at p. 1290.) “The fraudulent business practice prong of the UCL has been
understood to be distinct from common law fraud

. ” ( Tobacco II , at p. 312.) Neither of
the cases that plaintiffs cite supports a presumption of reliance in common law fraud

cases like this one

. P laintiffs next argue that “classwide reliance will be presumed or inferred because Apple ’ s misrepresentations were uniform , and were written or scripted. ” They raised a similar argument below

. The trial court pro perly rejected it. Reliance is a necessary element of a claim for fraud. Alliance Mortgage Co. v.
Rothwell (1995) 10 Cal.4th 1226, 1239 ( Alliance ) .) “Califo rnia courts have always required plaintiffs in actions for deceit to plead and prove the common law element of actual reliance.” ( Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092 ( Mirkin ).) Actual reliance must also be pleaded and proved in cases averring fraud by omission. ( I d

. at
pp. 1092

- 1093 .) In rare situations, “ when the same material misrepresentations have actually been communicated to each member of a class , an inference of reliance arises as to the entire class.” ( Id. at p. 1095, citing Vasque z v. Superior Court (1971) 4 Cal.3d 800 ( Vasquez ) and Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355 ( Occidental
Land ).) Plaintiffs’ reliance on Vasquez and Occidental Land i s misplaced. Reliance was a
common issue in Vasquez but only under what the Mirkin court called “the peculiar facts of the case.” ( Mirkin , supra , 5 Cal.4th at p. 1094.) The plaintiffs in Vasquez bought frozen meat and freezers on installment contracts. ( Vasquez , supra , 4 Cal.3d at p. 805.) They sued the sellers for fraudulently misrepresent ing the price and value of the20

merchandise. The trial court sustained demurrers to the class action aspect of the fraud

count. ( Id. at p p

. 805

- 80 6 .) The high court granted the plaintiffs’ writ petition , explaining that the plain tiffs claimed they could demonstrate on a classwide basis that the alleged representations were in fact made to each class member . They could do so

“ because the salesmen employed by [the defendant] memorized a standard statement containing the representations (which in turn were based on a printed narrative and sales manual) and . . . this statement was recited by rote to every member of the class. ” ( Id

. at pp. 811

- 812.) “ T he demurrers must be deemed to admit these facts. If plaintiffs can
pr ove their allegations at the trial, an inference that the representations were made to each class member would arise, in which case it would be unnecessary to elicit the testimony of each plaintiff as to whether the representations were in fact made to him .” ( I d. at
p. 812, fn. omitted

. ) If the trial court found the misrepresentations were material, “ at least an inference of reliance would arise as to the entire class.” ( Id

. at p. 814 .)
Occidental Land presented a similar situation

. The plaintiff homebuyers in that case alleged that the defendant developer misrepresented the future cost of maintaining certain common areas. Relying on Vasquez , the court held that actual reliance was susceptible of common proof because the alleged mi srepresentations were contained in a public report and “[e]ach purchaser was obligated to read the report and state in writing that he had done so.” ( Occidental Land , supra , 18 Cal.3d at pp. 358, 361.)
This case is different. U nlike in Vasquez or Occiden tal Land , t here was no
evidence here that the alleged “series of false representations” w as “ in fact made ” to each
class member

. ( Vasquez , supra , 4 Cal.3d at pp. 811

- 812.) There wa s no evidence that
each class member e xpressly acknowledged re ading or hearing the identical se ries of
false misrepresentations . ( Occidental Land , supra , 18 Cal.3d at pp. 358 .) The Vasquez / Occidental Land inference of reliance does not apply without uniform material misrepresentations having been actually made to class m embers. ( E.g., Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 846

- 847 ( Kaldenbach )

. )21

Plaintiffs argue that classwide reliance should be presumed or inferred because the “representation that Specialists would receive ‘priority’ all ocation was in writing in every Specialist’s written contract.” Not so. The Specialist confirmation letters described some of the benefits and requirements of the Specialist program. Those benefits and requirements varied over time. The confirmation letters also varied over time, as plaintiff O’Neil acknowledged. There was no uniform representation about “ ‘ priority’ allocation.” Classwide reliance is not properly inferred in circumstances like these, as the trial court properly conclud ed. ( Kaldenbach , supra , 178 Cal.App.4th at pp. 846

- 847 .) Any inference of reliance here would be particularly inappropriate because there

was affirma tive evidence that the allegedly “ scripted ” misrepresentations were not communicated to all Specialists or even to all of the named plaintiffs. Plain tiff Weisblatt
asserted in a declaration that Apple representatives told him there would be “a ‘level playing field ’ ” between the Apple stores and resellers’ stores. But he admitted in deposition that he did not recall any conversations in which Apple representatives used
that term to re assure him about how the retail stores would operate in relation to Specialists like him

. He testified that Apple representatives stated at gatherings of
resellers that the co mpany was going to give Specialists “ a fair shake ” or words to that
effect , that the retail stores were going to expand business “for the whole Apple corporation and that we would get a large part of that,” and that “the dealers were important and they wou ld be taken care of basically

. ”
P laintiff O’Neil could not recall being told that “ ‘all ships will rise with the tide ’ ” and he equivocated when asked whether Apple representatives told him that the Apple
stores would be on “ ‘ a level playing field ’ ” w ith resellers’ stores. Other Specialists
declared that they were “never” told that all ships would rise with the tide, that the retail

stores would be on a level playing field with the Specialists’ stores, or that they or any Specialist would receive product before the retail stores or before any other Apple
reseller. Substantial evidence thus supported the trial court’s finding that each class22

member would need to present highly individualized evidence regarding the particular representations that he or she claimed to have heard. Substantial evidence also supported the trial court’s finding that each class member would need to present individualized evidence about how he or she relied on the alleged misrepresentations

. There was evidence that not a ll Specialists heard the alleged misrepresentations. A person obviously cannot establish actual reliance on a misrepresentation that he or she never heard. ( Mirkin , supra , 5 Cal.4th at pp. 1089, 1100.)
Nor can a person claim to have been deceived by a misrepresentation that he or
she did not believe. ( Maxon

- Nowlin Co. v. Norswing (1913) 166 Cal. 509, 511

- 512.)
There was evidence that not all S pecialists believe d the mis representations they claim to
have heard. Weingarten’s 2001 posts to the listserve warned of “Apple’s long range plan” to “do away with all you resellers.” O’Neil testified based on his recollection of other Specialists’ posting s to the listserve that at least some of them did not believe that
the retail stores wo uld increase Specialists’ sales. Siechert testified that he was “sure” there were “other folks that didn’t believe what we were being told.” Apple presented evidence that called some Specialists ’ claimed reliance on the alleged misrepresentations into q uestion. “ Reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff ’ s conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonab le probability, have entered into the contract or other
transaction. [Citation.]” ( Alliance , supra , 10 Cal.4th at p. 1239 .) Rogers testified that she “[p]robably” would have become a Specialist with or without a promise of priority product allocation. Rogers continued to sign reseller and Specialist contracts for years after she claimed to have discovered Apple’s alleged scheme to put her out of business. O’Neil did the same. All of this evidence amply supported the trial court’s finding that
reliance was not susceptible of classwide proof. Instead, each class member would need23

to present “highly individualized evidence” about which representations he or she heard
and h ow (if at all) he or she reli ed on them.

3. Fraud Claim

— Causation and Da mages Plaintiffs challenge the trial court’s finding that their fraud claim would require each member of the class to provide “highly individualized evidence regarding . . . whether the damages suffered were proximately caused by the fraud (as opposed to o ther unique factors such as their market, location, state of the local economy, level of service at the store, and management expertise) and the amount of damages.” T o the extent they
contend that the court should not have considered whether causation and damages raised predominately individual issues, we reject the contention.

“ ‘ [ R ] esulting damage ’ ” is a necessary element of fraud. ( Alliance , supra , 10
Cal.4th at p. 1239.) “Deception without resulting loss is not actionable fraud. [Citation.] ‘Wha tever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.’ [Citation.]” ( Service by Medallio n, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.) Thus, t he trial court did not err in considering whether proximate cause and damages could be proven on a classwide basis. ( Brinker , supra , 53 Cal.4th at p. 1023.)
Plaintiffs maintain that the trial court “disregarded how such class damages are
tried and assumed that they would be proven on a strictly individual basis, which is contrary to law.” The ir reliance on In re Cipro Cases I & II (2004) 121 Cal.App.4th 402 ( Cipro ) is misplaced. In Cipro , the court affirmed an order certifying a Cartwright Act pri ce

- fixing case as a consumer class action. It did so after determining ( among other things ) that substantial evidence supported the trial court’s finding that damages were susceptible of classwide proof by expert testimony without regard to the particular circumstances of each individual class member. ( Id. at pp. 411.) T he Cipro court did not
hold or suggest that the calculation of aggregate classwide damages is appropriately
based on a formula in all or most cases. Nor d id the Cipro court suggest that it is an24

abuse of discretion for a trial court to deny certification when it concludes that determining the fact and extent of class members’ damages would require individualized inquiries that would preclude a finding that common issues predo minate. The court expressly recognized that “[i] t is within the trial court’s discretion to weigh the inherent imperfections of such approximations against the vindication of important statutory policies and the burden to the courts of proving damages on a strictly individual basis.” ( Cipro , at p. 418.) The important statutory policies implicated in Cipro address anticompetitive conduct. As the court noted, “c laims of anticompetitive collusion resulting in higher market prices are particularly suited for class treatment.” ( Cipro , supra , 121 Cal.App.4th at p. 415 .) “[I]t has long been recognized [in the antitrust context] that, although the fact of injury must be established with reasonable certainty, a less rigid standard of proof is imposed with respec t to the amount of damage caused by an antitrust violation, because economic harm in such actions is difficult to quan tify. ” ( Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1431 ( Evans ).) In such cases, “rather than deny any recovery to those injured by anticompetitive activity because they cannot prove damages with exactitude, ‘it will be enough if the evidence show [ sic ] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.’ [Citati on.]” ( Evans , at p. 1431 , quoting Story Parchment Co. v. Paterson Parchment Paper Co. (1931) 282 U.S. 555, 563 .) Here, n o such difficulties of proof exist . This is not an antitrust case. Cipro does not advance plaintiffs’ position.
Plaintiffs assert that individual issues of causation “[d]o [n]ot [p]redominate.” We disagree. Substantial evidence supported the trial court’s finding that plaintiffs’ fraud claim raised predominately individual issues of causation and damages. Plaintiffs’ theory
of re covery was that the alleged fraudulent misrepresentations caused them to suffer “substantial loss of customers, business and sales over time , substantially diminishing the25

value of their businesses

. ” Their claim is one for lost profits , the fact and exten t of which
must be shown “ ‘ with reasonable certainty

. ’ ” ( Sanchez

- Corea v. Bank of America (1985) 38 Cal.3d 892, 907

- 908.) Plaintiffs cannot recover p rofits lost for reasons unrelated to Apple’s alleged wrongdoing . ( Continental Car

- Na

- Var Corp. v. Moseley (1944) 24 Cal.2d 104, 113 .) Apple’s e xpert economist Keeley identified numerous firm

- specific factors unrelated to Apple’s alleged wrong doing that can affect an individual Specialist ’ s performance. These include d the number of storefronts , thei r location, their target

customers , product mix and service offerings, their reliance on Apple products, their inventory practices , and the extent of competition from other resellers and other computer
retailers

. We have already described the many di ffere nces among the Specialist s with respect to th os e factors. ( Ante , at p p. 2

- 3 .) As Keeley explained, i t can be inferred from
these differences that any effect of Apple’s alleged conduct would vary from Specialist to Specialist

. The record illustrate s th e point. There was evidence that some Specialists who claimed to have heard and relied on the alleged misrepresentations faltered for reasons that had nothing to do with Apple’s alleged wrongdoing

. Plaintiff Omnitech , for example, was located in a poor lo cation in a fairly remote part of Hyannis, Massachusetts with virtually no pedestrian traffic. A former Omnitech employee testified that the company’s retail showroom was “old, cluttered, poorly maintained, and unattractive

. ” Omnitech suffered from poor management and often did not have high

- demand products
in stock because of its credit problems. Its service center was understaffed. Former

owner O’Neil admitted that a competing Specialist “was an increasing drain on our business.” It was “a major blow ” to Omnitech when that Specialist opened its second

store in the nearby town of Harwich , Massachusetts

. When Omnitech went out of
business in April 2007 , the same c ompetitor ope ned a nother store in Hyannis. The competitor’s Hyannis store has succeeded.26

There was evidence that plaintiff Weisblatt’s Computer Outlet also faltered for reasons unrelated to Apple’s alleged wrongdoing. Weisblatt testified that Computer
Outlet stopped being profitable in 1996. Weisblatt had an expensive long

- term lease on a
build ing with two large training rooms where customers could learn how to use computers. But training became increasingly less important as the general public became more knowledgeable about computers. In addition, Computer Outlet lost many large
busines s customers when their companies were acquired by companies that had existing purchasing relationships with other computer retailers. Apple submitted evidence that many S pecialists enjoyed remarkable success after the retail stores opened in 2001

. Some attributed much of their success to the “ ‘ halo
effect ’ ” of the Apple stores. Others attributed their success to their own initiative. One Specialist “more than doubled” its growth by moving to a higher traffic location and investing in a top

- quality bu ild

- out. Another Specialist located just blocks away from an Apple store diversified his business and differentiated it from the competition through its customer service policies. Its revenues have grown steadily since it became a Specialist
in 2002. Th is and similar evidence showed that individual Specialists succeeded or faltered for reasons unique to their individual businesses. Substantial evidence thus supported the trial court’s finding that plaintiffs’ fraud claim raised predominately
individual issues of caus ation and damages.
Plaintiffs maintain that the trial court’s finding was “reversible error.” They assert that the court improperly “ignor ed ” their expert Regan’s testimony that damages can be
calculated on a classwide basis. The contenti on lacks merit. There is no evidence that the trial court “ignored” Regan’s testimony. The hearing transcript reveals that the court
read Regan’s submissions but was not convinced by his theories. We do not find this surprising. Regan’s declaration was entirely speculative. He declared that it was “possible” to calculate the economic damage suffered by the Specialists on a classwide
basis. But h e conceded in deposition that the only work he had done was “hypothetical”27

and “not b ased upon actual data from Apple.” H e had not performed any calculations or tried to validate whether any of the theories that he and plaintiffs’ counsel discussed “might actually work.” He had not constructed a ny model

. Nor had he done anything to vali date his hypothetical model. Regan acknowledged that he had not examine d any evidence specific to any of the named plaintiffs, did not know anything about any of them, and could not offer any opinions on whether any of them suffered any economic damages. Moreover, Regan conceded that even if he could develop an aggregate damages model, whether any specific Specialist had been injured by Apple’s alleged wrongful conduct could only be determined by a Specialist

- specific analys is. Regan’s testimony did not constitute substantial evidence that damages could be calculated on a classwide basis. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,
1111 [reversing trial court’s predominance finding because expert testimony was “too qualified, ten tative and conclusionary to constitute substantial evidence ” that causation and damages could be proved by common evidence] .) As p laintiffs’ counsel admitted , “the damage theories, exactly how we will present them, you know, we have Regan’s declaration. We don’t have more than that.” Even if Regan’s testimony was substantial evidence that damages could be calculated on a classwide basis, it is not our task to second

- guess the trial court’s
conclusions

. “ Our role on this appeal is narrowly confined to examining whether the trial

court ’ s ruling is supported by substantial evidence, and if it is, we may not substitute our own judgment for that of the trial court

. ” ( Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 992 ( Da iley ) .) W e must “ confine our analysis to whether the record contains substantial evidence supporting the trial court ’ s conclusion ” that plaintiffs’ fraud claim raised predominately ind ividual issues of causation and damages. ( Ibid .)28 C. Predominance

— Contract

- Based Claim s Plaintiffs challenge the trial court’s refusal to certify their c laim that Apple’s alleged scheme to put them out of business by starving them of new products denied them the benefit of their agreements with the company

. They complain that the court ’s findings were unsupported by the evidence . We disagree.
The trial court found that each named plaintiff had “ a highly individual claim with regard to allocation ” and that “[t] he same would be expected of each member of the Specialist Class. In other words, there is no commonality with regard to which products were wrongfully withheld from members of the Specialist Class. ” The court also found

“ substantial variations in the confirmation letters that Apple provided to members of the Specialist Class during the Class Period. ” It concluded that each member of the class

“ would have to present highly individualized evidence regarding which products were withheld or delayed , when those products were ordered, when they were received, whether Apple retail stores and/or Apple Online was treated more favorably as to allocation of those products, whether the member ’ s own conduct (such as credit problems
or conditions attached to an order) caused the withholding or delay, whether the withholding or delay of those products proximately caused damage, and the amount of damage. ” Ample evidence supported these findings. 4

T here was evidence that Apple allocated constrained product among its worldwide segments , among the different channels in those regions , and among distributors or
resellers in each channel on an ad hoc basis rather than by a set policy or formula. Many
different factors affected when a Specialist received a partic ular constrained product and
how much he or she received. For example, those in higher tiers of the Specialist

4 We reject plaintiffs’ assertion that the trial court failed to consider the evidence that they submitted. The court’s questions at the hearing illustrate its thorough familiarity with the evide nce and the issues. Before the court took the matter under submission, it sought copies of the slide presentations that both sides used to highlight their argument s

.29

program were entitled to receive more of a constrained product than those in the lower
tiers. T hose who participate d in the early order/early s hip program for new products could receive shipments ahead of those who did not participate in that program. Whether a Specialist ordered product directly from Apple or from an independent distributor also
made a difference because the distributors made t heir own allocation decisions without
any input from Apple. Moreover, not all Specialists ordered every constrained product. The evidence convincingly showed that the named plaintiffs’ claims were highly
individual. Their claims of wrongfully withheld products varied substantially. Weingarten claimed that Apple deliberately withheld nine different product models from
him

. Horizon contended that Apple wrongfully withheld 29. Omnitech maintained that
137 products were wrongfully withheld

. Siechert limited some of his claims to particular
orders. He placed six different orders for the same product model between December
2001 and March 2002 but c laimed that only the third was wrongfully withheld. None of

t he other named plaintiffs contend ed that that particular product was wrongfully
withheld

. There was evidence that Apple’s first shipment s of constrained product to Specialist s in a particular area were often made before or on the same date as its first shipment s to Apple retail store s in the vicinity

. There was evidence that on numerous occasions, Apple shipped product to the named plaintiffs instead of to nearby Apple retail

stores. All of this evidence showed that plaintiffs’ claims of wrongful allocation would require a Specialist

- by

- Specialist and product

- by

- product inquiry. Thus, substantial evidence supported the trial court’s finding that plaintiffs’ allocation claims could not be
established on a classwide basis. Plaintiffs argue that the trial court’s “attempt to extrapolate” its findings about
their claims to those of the absent class members w as “baffling

. ” We disagree . Plaintiffs purport ed to represent a class of “ similarly situated ” Apple resellers. Substantial evidence supported the trial court’s conclusion that plainti ffs’ allocation claims would30

require a highly individualized inquir y . I t was reasonable for the court to conclude that
the claims of purportedly “similarly situated” class members’ would likewise require a highly individualized inquiry. Plaintiffs argue t hat the trial court’s “attempt to extrapolate” its findings about their claims to those of the absent class members was also “unnecessary.” We disagree. The essence of plaintiffs’ argument is that substantial evidence supported their position. The argum ent misperceives our role on appeal, which is “ narrowly confined to examining
whether the trial court ’ s ruling is supported by substantial evidence .” ( Dailey , supra , 214 Cal.App.4th at p. 992.) We have concluded that it was.
Plaintiffs argue that the tr ial court’s conclusion that their allocation claims could not be established on a classwide basis but would instead require a highly individualized inquiry was “simply wrong, as a matter of law.” We disagree. Plaintiffs’ reliance on Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676 ( Capitol People ) and similar cases is misplaced. The plaintiffs in Capitol People challenged a “ systemic failure ” by state agencies to provide community services to
persons with developmental disabilities. ( Capitol People , at p p

. 691, 702.) They alleged
that the defe ndants’ failure to provide the statutorily

- mandated level of services deprived
class member s of their rights . ( Ibid. ) The trial court conclud ed that the plain tiffs could not satisfy the commonality requirement because the issues dictated inquiry into each class member’s individualized circumstances . ( Id . at p. 688.) The Court of Appeal
reversed , repeatedly emphasizing that the plaintiffs sought “only systemic relief, and not individual solutions to individual problems

. ” ( I d . at p p

. 681, 686, 690, 693, 695 , 702

- 703

. ) Th at “ ‘ systemic relief ’ ” ( specifically, an order compelling the agencies to put in place procedures, practices, and an infrastructure t o ensure their ability to satisfy their obligations to class members ) “ ‘ could not be obtained on a case

- by

- case basis. ’ ” ( Id . at p. 694.)31

This case is nothing like Capitol People

. It has nothing to do with entitlement to government benefits on a systemic basis . Nor can the alleged harm in this case be remedied by a single injunction. Unlike in Capitol People , p laintiffs here seek “severe monetary damages ” for each and every class member in the form of profits lost by his or
her business. This requires an individualized inquiry, as the trial court properly found. Capitol People is inapposite.
Plaintiffs challenge the sufficiency of the evidence supporting the trial court’s finding that the Specialist confirmation letters contained substant ial variations. They

a ssert that “[t]here were no such variations

. ” They maintain that “ all of the contracts during the Class Period promised priority allocation

. ” We cannot agree.
There was evidence that t he terms of the Specialists confirmation letter s varied
over time. Early letters described “ ‘ advantageous product allocation ’ ” as a benefit of the Specialist program but qualified that statement with the caveat that it was important to understand that advantageous product allocation did not mean that Apple would guarantee delivery

. The 2001 confirmation letters described “Priority Product Allocation” as a benefit of the Specialist program

. The 2003 confirmation letter said “Priority Launch Allocation

— Apple reserves the right to allocate more pro duct to Apple Specialists in each correspondingly higher program tier.” None of the letters defined “Priority Product Allocation” or “P riority L aunch A llocation

. ” The fact that the word “priority” happens to appear in otherwise different phrases does not make the meaning of those phrases “ identical , ” as plaintiffs assert. Substantial evidence thus supported the trial court’s finding that the Specialist contracts were not identical

.

D. Predominance

— “Secret Rebates” Claim
Plaintiffs challenge the trial court’s finding with respect to their UPA claim that “individual issues would predominate as to whether each class member suffered a

‘ competitive injury. ’ ” Plaintiffs contend that th is finding rested on “ the same faulty32

assumption ” that they claim the court made “ with respect to the fraud

- based and contract

based claims

— that each class member would have to prove its entitlement to relief individually. ” They assert that section 17082 excuses them from alleging or proving actual damages. We reject the c ontention. Section 17045 provides that “[t] he secret payment or allowance of rebates, refunds, commissions, or unearned discounts, whether in the form of money or otherwise, or secretly extending to certain purchasers special services or privileges not ext ended to all purchasers purchasing upon like terms and conditions, to the injury of a competitor and where such payment or allowance tends to destroy competition, is unlawful. ”
C ompetitive injury is a required element of a ny claim for violation of section 17045. ( Diesel Electric Sales & Service, Inc. v. Marco Marine San Diego, Inc. (1993) 16 Cal.App.4th 202, 211

- 212 ( Diesel ) ; CACI 3320

. ) To prove competitive injury , a plaintiff
must establish “ ‘ with reasonable probability the existence of some causal connection
between [the] defendant’s wrongful act and s ome loss of anticipated revenue

. . . . ’ ” ( Diesel , at p. 219.) Section 17082 provides that “[i]n any action under this chapter, it is not nec essary to allege or prove actual damages or the threat thereof, or actual injury or the threat thereof, to the plaintiff. But, in addition to injunctive relief, any plaintiff in any such
action shall be entitled to recover three times the amount of the ac tual damages, if any, sustained by the plaintiff, as well as three times the actual damages, if any, sustained by any person who has assigned to the plaintiff his claim for damages resulting from a violation of this chapter.” As explained in Uneedus v. Ca lifornia Shoppers, Inc. (1978) 86 Cal.App.3d 932, “ [b] y section 17082 ’ s own terms, a plaintiff can bring an action for injunctive relief without proving actual damages

. However, to be entitled to treble damages a plaintiff must prove actual damages.

. . . In the absence of such proof, treble damages are not permitted and a plaintiff is limited to an injunctive remedy

. ” ( Uneedus , at p. 943 , second italics added .)33

Plaintiffs seek more than injuncti ve relief h ere. They also seek actual and punitive damages. They must plead and prove competitive injury. ( Diesel , supra , 16 Cal.App.4th at pp. 211

- 212 .)
The next issue is whether s ubstantial evidence supported the trial court’s finding
that competitive injury could not be established on a classwide bas is. It did. Expert economist Keeley explained that whether a Specialist was a dversely impacted by Apple’s alleged discounting to favored resellers would depend on the extent to which th at Specialist competed with th e favored resellers’ stores for sales. There was evidence that Specialists located close to allegedly favored resellers were not necessarily in direct competition with them. Omnitech, for example, was located near Best Buy and Staples but did not compete with them because they catered to the home user, while Omnitech’s target market was small business. Other resellers declared that nearby Best Buy or CompUSA stores had no appreciable impact on their sales. In fact , there was evidence
that one allegedly favored reseller referred its service and support business to a nearby Specialist store. This evidence amply supported the trial court’s conclusion that it would require an individualized inquiry to determine which Specialists were in direct competition with one or more allegedly favo red reseller s . Those that were would have to prove that the alleged secret rebates (rather than other factors) caused them to lose sales or profits. ( See American Booksellers Assn., Inc. v. Barnes & Noble, Inc. (N.D.Cal.
2001 ) 135 F. Supp.2d 1031, 1043.) As Keeley explained in his uncontroverted declaration, th at could only be done on a Specialist

- by

- Specialist basis

. Substantial evidence thus supported the trial court’s finding that plaintiffs’ section 17045 claim raised predominately individualized iss ues. Plaintiffs summarily assert that section 17045 “only requires injury to a single competitor to obtain classwide relief.” They cite no case to support th e proposition . N or do they develop the argument

. We decline to consider it. “ ‘ An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. ’ [Citation.] ”34

( American Corporate Security, Inc. v. Su ( 2013 ) 220 Cal.App.4th 38, 44, fn. 3 .) “When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.” ( Landry v. Berryessa
Union School Dist. (1995) 39 Cal.App.4th 691, 699

- 700 .) We deem the point
abandoned.

E
. Superiority of Proceeding by Class Action
Plaintiffs challenge the trial court’s finding that a class action would not be superior to individual lawsuits. We need not address this contention because “ ‘ [a] ny valid pertinent reason stated will be sufficient to uphold the [trial court’s] order [granting
or de nying a class certification motion] .’ [Citation.]” ( Linder v. Thrifty Oil Co . (2000) 23 Cal.4th 429, 434

- 436.) We have already determined that the trial court properly denied plaintiffs’ motion because individual issues predominated over class issues. ( E.g., Dailey , supra , 214 Cal.App.4th at p. 1002, fn. 13 [ “Given our conclusion here that Dailey failed to make the necessary showing of commonality as to his overtime pay and rest/meal break claims, it is not necessary for us to address the trial court’s additional

state d reasons for denying class certification, i.e., that a class action is not the superior method for resolving this dispute, and that Dailey is not a suitable class representative.” ] .)

III. Disposition
The order denying class certificati on is affirmed

.35 ___________________________ Mihara, J.

WE CONCUR:

_____________________________ Elia , Acting P. J.

_____________________________ Grover , J.