ORIGINAL PROCEEDING in mandate. Aurelio N. Munoz, Judge. Petition granted. (Super. Ct. No. BC 346868)(Aurelio N. Munoz, Judge)
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
The plaintiffs, real parties in interest in the proceedings before us, H. Roger Wang and Vivine Wang (from time to time collectively referred to as the Wangs), sued petitioner Princess Cruise Lines, Ltd., over charges added to the price of shore excursions taken during a cruise conducted by petitioner. The Wangs asserted five causes of action. The first three were based on Business and Professions Code sections 17200 (first cause of action) and 17500 (second) and on Civil Code section 1750 et seq. (third). Respectively, these statutes are California‟s Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA). The fourth and fifth causes of action were based respectively on common law fraud and negligent misrepresentation.
Petitioner moved for summary judgment and summary adjudication. The trial court granted summary adjudication on the fourth and fifth causes of action because the Wangs could not show they relied on petitioner‟s alleged misrepresentations. The trial court, however, denied the motion for summary judgment because it concluded that on the UCL, FAL and CLRA causes of action the Wangs did not have to show that they relied on petitioner‟s alleged misrepresentations.
We issued the order to show cause, received briefing and heard oral argument on the question whether a plaintiff asserting UCL, FAL and CLRA causes of action must show that he or she relied on the defendant‟s misrepresentations. We conclude that the answer is yes and we also address other issues that need resolution. We vacate the trial court‟s order denying petitioner‟s motion for summary judgment and we remand with directions to grant the motion and to conduct such further proceedings as are appropriate.
THE FACTS AND THE PLEADINGS
The Wangs bought tickets issued by petitioner for themselves and their two daughters in 2005 for a two-week cruise with stops in six northern European cities. They also purchased and paid for shore excursions that were offered as part of the cruise.
The gravamen of the operative pleading, the second amended complaint (referred to hereafter as the complaint), is that petitioner represented that the shore excursions were operated and controlled by third parties, and not petitioner, who were independent contractors and that, as far as the shore excursions were concerned, petitioner only served as an agent for these independent operators. In truth, the complaint alleges, petitioner effectively controlled the operators of the shore excursions and "inflated charges for shore excursions which exceeded the price the shore excursion providers were actually charging for those services."
The complaint seeks relief on behalf of the Wangs and for a class of persons similarly situated, which the complaint defines as all California residents who were passengers on cruises operated by petitioner who paid prices for shore excursions that were "in excess of the shore excursion operator‟s actual price."
The first cause of action alleges a violation of Business and Professions Code section 17200. In pertinent part, this cause of action alleges that the Wangs "read and relied upon [petitioner‟s] misrepresentations including the representations in [petitioner‟s] ticket contract . . . and Cruise Answer Book . . . to their detriment." The second cause of action is brought under Business and Professions Code section 17500 for false advertising. The third cause of action seeks damages and injunctive relief under the CLRA (Civ. Code, § 1750 et seq.). The fourth cause of action alleges common law fraud and states in part that the Wangs "and the Class members justifiably relied on the representations made by [petitioner] and as a result have suffered damages in an amount to be proven at trial." The final cause of action is for negligent misrepresentation and it alleges that the Wangs reasonably believed that petitioner was not profiting from the sale of the shore excursions.
THE WANGS' DISCOVERY RESPONSES
In their depositions, the Wangs admitted that prior to taking the cruise, neither one of them ever spoke with any officer or employee of petitioner and that they did not receive any written materials from petitioner, with the exception of the itinerary that was given to them by their travel agent who was not affiliated with petitioner. Vivine Wang‟s answers were particularly explicit; it was she who made the arrangements for the cruise. She stated she did not have any conversations with anyone from "Princess Cruises" prior to the cruise. When asked "[d]id Princess Cruises make any representations to you regarding your cruise prior to the cruise," she answered no. As far as the excursions were concerned, Vivine Wang told her travel agent that she wanted to go on the same excursions that her traveling group had booked and "I want to go on the shore excursion . . . whatever it cost [sic]. It‟s fine."
In her declaration filed in opposition to the motion for summary judgment, Vivine Wang attempted to backpedal from these concessions; we set forth the pertinent part of her declaration in the margin.*fn1 The statement in her declaration that "I did not tell my travel agent that I wanted to go on the shore excursions irrespective of the cost" flatly contradicts her deposition testimony. A declaration that is inconsistent with previous deposition testimony may be disregarded ...