Troyk v. Farmers Group, Inc. (171 Cal. App. 4th 1305, 2009)

Opinion

McDONALD, J.

Plaintiff Thomas E. Troyk filed a class action against defendants Farmers Group, Inc., doing business as Farmers Underwriters Association (FGI), and Farmers Insurance Exchange (FIE) (together Farmers) alleging causes of action for breach of contract and violation of Business and Professions Code section 17200 et seq. (unfair competition law; hereafter UCL). He alleged FIE required him to pay a service charge for the payment of the premium for his automobile insurance policy’s one-month term and, because the service charge was not stated in his policy, FIE violated the requirement of Insurance Code section 381, subdivision (f), that “premium” be stated in an insurance policy.

The trial court granted Troyk’s request for class certification, granted Troyk’s motion for summary judgment, and denied Farmers’ motion for summary judgment. The court then entered judgment awarding Troyk and the other class members $115,556,827 for service charges paid by those members.

On appeal, Farmers contend (1) the trial court erred by interpreting the term “premium,” as used in section 381, subdivision (f), to include the service charge imposed for payment in full of the stated premium for the policy’s one-month term; (2) even if the service charge is premium, they complied, either actually (because of incorporation by reference to other documents) or substantially, with section 381, subdivision (f)’s disclosure requirement; (3) the court erred by concluding Troyk proved his breach of contract and UCL causes of action and by awarding the class members full restitution for the service charges they paid; and (4) the judgment violates their constitutional right to due process of law.

Following oral argument in this appeal, we requested, and have received and considered, supplemental briefing by the parties on the issues whether (1) Troyk had standing under Business and Professions Code section 17204 to bring this action; and (2) the issue of standing was raised in the trial court by Farmers and, if not, whether that issue has been waived.

Because we interpret the term “premium,” as used in section 381, subdivision (f), to include a service charge imposed for the payment in full of the stated premium for an insurance policy’s one-month term, we conclude Farmers violated that statute’s disclosure requirement. However, because in moving for summary judgment Troyk did not show there is no triable issue on the element of causation regarding his standing to prosecute the UCL cause of action, we conclude the trial court erred by granting his motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

FIE is a reciprocal or interinsurance exchange organized under California law (§ 1280 et seq.) and is licensed to sell insurance in California and Nevada. FIE is owned by its subscribers, who are deemed its insureds. (§ 1303 [“[Ejach subscriber shall be deemed an insured.”].) FGI is a Nevada corporation, but not an insurance company, and is the attorney-in-fact for FIE and performs certain administrative services for FIE. Both FIE, as an insurer, and FGI, as its attorney-in-fact, are “subject to and regulated by all of the provisions of [the Insurance Code],” except as otherwise exempted. (§ 1281.) Prematic Service Corporation, a California corporation (Prematic California), is a wholly owned subsidiary of FGI. Prematic Service Corporation, a Nevada corporation (Prematic Nevada), is a wholly owned subsidiary of Prematic California. The sole business of Prematic California and Prematic Nevada (together Prematic) is to handle monthly billing for customers of FIE and other insurance companies by agreements with those customers.

FIE offers automobile insurance with policy terms of either six months or one month. If an insured chooses a six-month term, the premium is payable in either one lump sum or two installments (under FIE’s two-pay plan). If the insured chooses a one-month term, FIE in effect converts its six-month policy into a one-month policy by issuing an endorsement called the “Monthly Payment Agreement” (i.e., endorsement form No. E0022), which provides:

“In consideration of the premium deposit, we agree to the following:

“(1) The policy period is amended to one Calendar month. It will commence with the effective date shown in the Declarations.

“(2) The policy shall continue in force for successive monthly periods if the premium is paid when due. The premium is due no later than on the expiration date of the then current monthly period.

“(3) The monthly premium shall be subject to future adjustment. Such adjustment will apply the then current rate on the semi-annual or annual anniversary of the policy whichever is indicated in the Declarations as applicable.

“This endorsement is part of your policy. It supersedes and controls anything to the contrary. It is otherwise subject to all other terms of the policy.” (Italics added.) However, to obtain a one-month, or monthly, term policy, FIE first requires that the insured enter into an agreement with Prematic (Prematic Agreement), pursuant to which Prematic agrees to send a monthly premium bill to the insured (requesting payment by check payable to Prematic) and, on receipt of the premium payment and its service charge (e.g., $5 per payment), forward the insured’s payment to FIE (less Prematic’s service charge).

In 1991 Troyk purchased an automobile insurance policy from FIE, which policy has since been continuously renewed. He chose to pay the stated premium monthly, rather than every six months, and, accordingly, entered into the Prematic Agreement discussed above. FIE then issued to Troyk its standard form six-month policy, but with the Monthly Payment Agreement endorsement (form No. E0022) amending the six-month term to a one-month term. As renewed in 2005, the policy’s declarations page lists the total premium to be paid over the course of six months, but leaves blank the space adjacent to the item “fees” and therefore does not include, either separately or as part of the total premium, any statement of Prematic’s service charges. Furthermore, adjacent to the item “Total” is typed “Prematic” (rather than a dollar amount). The declarations page includes a reference to the Monthly Payment Agreement endorsement (form No. E0022) and lists the number assigned to Troyk’s agreement with Prematic (i.e., “PREMATIC NO[.] A641249”). Since 1991, Troyk has received monthly bills from Prematic for FIE’s stated premiums and Prematic’s service charges, and has made payments to Prematic for the billed amounts (including its service charges).

In October 2004 Troyk filed the instant class action. In December, he filed the operative first amended complaint alleging causes of action for breach of contract and violation of the UCL. In particular, Troyk alleged he “has suffered an injury in fact and has lost money as a result of the conduct alleged.” He further alleged:

“14. Farmers offers its personal lines automobile insurance policyholders two options for the term of insurance coverage. Under the first option, Farmers offers insurance coverage for a term of six months. Under the second option, Farmers offers insurance coverage for a term of one month.

“15. Regardless of whether the term of coverage is for one month or six months, the premium Farmers asserts it charges is the same for otherwise identical coverage and risk. That is, the premium Farmers states in its insurance policy is the same per month regardless of the length of the term.

“16. In fact, regardless of whether an insured chooses a six month term or one month term, Farmers uses the same policy and the same Declarations page, which lists the same premium amount for a six month period. If the insured desires a monthly term, Farmers adds an endorsement to the policy, which modifies the policy from six months to one month, for a premium that is one-sixth the premium for a six month term. The endorsement states that ‘[t]he policy period is amended to one Calendar month.’ . . .

“17. Although the Declarations page states the total amount of premium, Farmers nonetheless charges policyholders who purchase insurance by the month additional premium which it euphemistically refers to as a ‘service charge.’ The service charge is not included anywhere in the policy, but is nonetheless added in addition to the premium stated in the policy.

“18. [Troyk] has purchased automobile insurance from Farmers. . . . The Declarations page of the policy period beginning on May 25, 2004 states that the premium for the policy for six months is $345.40.

“19. [Troyk] did not buy six months of insurance coverage. Instead, [he] bought insurance for a one month term. Like all policyholders who purchase a Farmers policy in one month terms, [his] policy contains the endorsement which states that ‘[t]he policy period is amended to one Calendar month.’

“20. Instead of charging [Troyk] one-sixth of the six month premium quoted on the Declarations page, Farmers improperly charged [him] an additional monthly premium of $5.00.

“21. [Troyk’s] payments with respect to his Farmers’ policy [were] paid to Prematic Service Corporation, which is a corporate affiliate of Farmers. Prematic Service Corporation, in collecting payments from Farmers’ policyholders, acts as the agent of Farmers.” Troyk’s complaint sought injunctive relief against Farmers and full restitution from Farmers of the service charges paid by members of the class and the general public.

The trial court granted Troyk’s motion for class certification, certifying a class of those persons in California and Nevada who, between October 6, 2000, and August 26, 2005, purchased and paid for insurance policies from Farmers on a monthly basis and incurred service charges in addition to the premiums specified in their policies. It was apparently determined there are about 975,000 members in the certified class.

In August 2005 Prematic filed a motion to intervene in the action. The trial court denied the motion, finding the motion was untimely filed and FGI and Prematic had the same interest in the service charges. It also stated that it appeared Prematic’s interests were being adequately represented by FGI.

In September, Troyk filed a motion for summary judgment or, in the alternative, summary adjudication of issues. Farmers also filed a motion for summary judgment.

On June 20, 2006, the trial court granted Troyk’s motion for summary judgment and denied Farmers’ motion. The court stated:

“When policyholders obtain car insurance through FIE, they have three payment options. They can (1) pay 100% up front; (2) pay 50% up front and 50% in 60 days; or (3) make payments monthly through a service offered by non-party Prematic Service Corporation. [Citations.] If the customer pays 100% up front, there is no ‘service charge.’ If the customer makes two payments of 50%, FIE charges a ‘service charge.’ [Citation.]

“However, if the policyholder chooses to make monthly payments, information is sent from FIE’s agent to Prematic, [which] sets up a Prematic billing account. [Citations.] The policyholder is required to enter into an agreement with Prematic to make the monthly payments to Prematic, along with a ‘service charge’ for administering the plan. [Citations.] Prematic in turn forwards the payment to the insurer. [Citation.] The policy is amended from a six month to a one month policy. [Citations.] Prematic may terminate the agreement if the policyholder fails to make timely payments to Prematic. [Citation.]

“The insurance policy must provide a statement of the premium. (Ins. Code[,] § 381(f)[.]) It is a misdemeanor for any insurer to issue a policy in violation of § 381(f). (Ins. Code[,] § 383[.])

“ ‘Premium’ in the law of insurance means the amount paid to the company for insurance. It is the sum which the insured is required to pay. [Citation.] The gross premium consists of two elements: the net premium and the loading. The net premium is the expected level of claims payments. The loading is added to the net premium to cover the expenses of the company and usually includes the administrative costs of the insurer and an element of profit. [Citation.] Thus, the ‘service charge’ paid by policyholders to Prematic is a premium under Ins. Code § 381(f) and should be disclosed as such on the declarations page. . . .” Accordingly, the trial court found Farmers breached the insurance contract with the class members and also engaged in an unlawful business practice under the UCL by imposing the service charge undisclosed in the policy. It rejected Farmers’ argument that they were not fiable for service charges collected by Prematic, finding both FGI and Prematic are agents of FIE. It further found that although “Prematic is ostensibly performing FGI’s duties as FIE’s attorney in fact, in reality it appears FGI is still performing those duties.” The court also stated: “FIE and its agent and attorney in fact, FGI, must comply with [Insurance [C]ode provisions, such as § 381(f). (Ins. Code[,] § 1281[.]) The premiums are collected by FIE’s agents, FGI and Prematic. FIE could not provide insurance without its agents. What the agent receives, in legal effect[,] the insurer receives. [Citation.] Thus, FIE, FGI and Prematic are operating as a single enterprise to transact the business of insurance. Therefore, both FIE and FGI are liable for the [insurance [C]ode violations, contract breaches and unfair business practices.” The court concluded: “[S]ummary judgment is granted in favor of plaintiffs and [Farmers’] motion for summary judgment is denied. [Farmers] are liable for the premium amounts paid in excess of the premium stated on the declarations page of the class members’ insurance contracts.” The court found Farmers must pay restitution in the full amount of the service charges unlawfully acquired by Farmers from the class members during the class period.

The parties subsequently stipulated that the aggregate amount of service charges collected by Farmers (through Prematic) from the class members during the class period was $115,556,827.

On August 21, 2006, the trial court entered judgment for Troyk, as the class representative of the certified class, against FGI and FIE in the amount of $115,556,827. It retained jurisdiction “to determine and oversee an award distribution plan.” The court subsequently issued an order awarding Troyk prejudgment interest and then interlineated its judgment to provide for an award of $21,655,032 in prejudgment interest.

On September 14, Farmers and Prematic each filed motions to set aside or vacate the judgment. The trial court denied the motions.

Farmers and Prematic each timely filed notices of appeal.

DISCUSSION

I

Summary Judgment Standard of Review

“[A]fter a motion for summary judgment has been granted [by a trial court], [an appellate court] review[s] the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).)

Aguilar clarified the standards that apply to summary judgment motions under Code of Civil Procedure section 437c. (Aguilar, supra, 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the “moving party is entitled to a judgment as a matter of law” (Code Civ. Proc., § 437c, subd. (c)), the court must grant the motion for summary judgment. (Aguilar, at p. 843.) Code of Civil Procedure section 437c, subdivision (p)(1), states: “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” Aguilar made the following observations:

“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . .

“Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. ... A prima facie showing is one that is sufficient to support the position of the party in question. . . .

“Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not- — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th. at pp. 850-851, fns. & citation omitted.) Summary judgment law in California “no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action.” (Id. at p. 853.) It is sufficient for a plaintiff to prove each element of the cause of action. (Ibid.) Aguilar stated: “To speak broadly, all of the foregoing discussion of summary judgment law in this state, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case, ... the ‘court should grant’ the motion ‘and avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device. [Citations.]” (Id. at p. 855, italics added.)

On appellate review of an order granting or denying a motion for summary judgment, “we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ [Citation.] ‘The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ [Citations.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202 [119 Cal.Rptr.2d 160].)

II

The Meaning of the Term “Premium” As Used in Section 381, Subdivision (f)

Farmers contend the trial court erred by granting Troyk’s motion for summary judgment and denying their motion for summary judgment because the court erroneously concluded the term “premium,” as used in section 381, subdivision (f), includes the service charge imposed for payment of the stated premium for the one-month term.

A

Section 381, enacted in 1935, provides:

“A policy shall specify:

“(a) The parties between whom the contract is made.

“(b) The property or life insured.

“(c) The interest of the insured in property insured, if he is not the absolute owner thereof.

“(d) The risks insured against.

“(e) The period during which the insurance is to continue.

“(f) Either: [¶] (1) A statement of the premium, or [¶] (2) If the insurance is of a character where the exact premium is only determinable upon the termination of the contract, a statement of the basis and rates upon which the final premium is to be determined and paid.” (Italics added.) Neither section 381 nor any other provision of the Insurance Code defines the term “premium.” Furthermore, the parties have not cited, nor have we found, any case that interprets the term “premium,” as used in section 381, subdivision (f), in the context of service charges imposed for payment in full of the stated premium for insurance coverage for a one-month term. Accordingly, we consider that question to be one of first impression.

“Our task in interpreting a statute ‘is to ascertain and effectuate legislative intent. [Citations.]’ [Citation.] In order to do so, ‘[w]e turn first to the words of the statute themselves, recognizing that “they generally provide the most reliable indicator of legislative intent.” [Citations.] When the language of a statute is “clear and unambiguous” and thus not reasonably susceptible of more than one meaning, “ ‘ “ ‘there is no need for construction, and courts should not indulge in it.’ ” ’ ” [Citations.]’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1007 [16 Cal.Rptr.3d 869, 94 P.3d 1071].) Alternatively stated, under the rules of statutory construction, “[i]t is settled that ‘ “[w]e are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” ’ [Citation.] Stated otherwise, ‘[w]hen statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.’ [Citations.] [¶] We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results. [Citations.]” (People v. Belleci (1979) 24 Cal.3d 879, 884 [157 Cal.Rptr. 503, 598 P.2d 473], superseded by constitutional amendment on another ground as noted in People v. Moore (1988) 201 Cal.App.3d 877, 885 [247 Cal.Rptr. 353].) “It is our task to construe, not to amend, the statute. ‘In the construction of a statute ... the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted . . . .’ [Citation.] We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349 [45 Cal.Rptr.2d 279, 902 P.2d 297].)

B

Based on our independent interpretation of the relevant statutory language, we conclude the clear and unambiguous meaning of the term “premium,” as used in section 381, subdivision (f), includes a service charge imposed for payment in full of the stated insurance premium for a one-month term policy. As we stated in Interinsurance Exchange of the Automobile Club v. Superior Court (2007) 148 Cal.App.4th 1218 [56 Cal.Rptr.3d 421] (Auto Club), “[i]t is commonly understood that a premium is the amount paid for certain insurance for a certain period of coverage.” (Id. at p. 1230, fn. omitted.) Because section 381 “presumably is a consumer protection statute” (id. at p. 1226), the meaning of “premium,” as used in section 381, subdivision (f), is interpreted from the perspective of the consumer (i.e., the insured). In the circumstances of this case, Troyk and the other class members were required to pay a service charge in addition to the stated premium to obtain and pay for a one-month term of insurance coverage. They could not obtain or pay for that one-month term policy by paying only the premium stated on the declarations page or elsewhere in the policy. Therefore, from the insureds’ perspective in this case, “premium,” for purposes of section 381, subdivision (f), is the total amount the insureds were required to pay to obtain insurance coverage for a one-month term (i.e., the stated premium plus the service charge imposed for payment in full of that stated premium).

Because FIE required the insureds to pay those service charges to obtain a one-month term policy, it is irrelevant that Prematic, instead of FIE, directly received that service charge. In any event, as we discuss below, because Prematic was acting as FIE’s agent in billing and collecting from the insureds the stated premiums and required service charges and in forwarding the stated premiums (less the service charges) to FIE, FIE is charged with constructive receipt of those service charges for purposes of section 381, subdivision (f).

Although it is not the determinative test for premium under section 381, subdivision (f), consideration of this issue from an insurer’s perspective provides additional support for our conclusion that “premium” includes the stated premium plus any service charge required to obtain insurance coverage for a certain period (e.g., a one-month term policy). As Farmers represent in their brief, the service charges were compensation “for the administrative services associated with . . . billing, collections, and forwarding of premium funds to [FIE].” Philip Moore, Prematic’s president, stated in his declaration: “FIE insureds who wish to pay for their coverage on a monthly basis agree to pay Prematic a service fee in return for Prematic’s performing the additional tasks needed to facilitate payment of premiums on a monthly basis.”

Moore explained during his deposition that Prematic received the service charge “[f]or the expense of sending — consolidating bills, for mailing bills to the customer, for receiving the premium payment, and . . . collecting the service fee and forwarding the premium payment to [FIE].” Therefore, in this case the service charges were imposed solely to cover the administrative expenses of creating and mailing monthly bills to insureds, receiving monthly payments, and forwarding the stated premiums to FIE (less the service charges Prematic retained). Those administrative expenses were necessarily incurred (albeit by Prematic) because FIE required its insureds to pay their stated premiums, plus service charges, to Prematic to obtain a one-month term policy. Had Prematic (or another agent) not performed those administrative services on FEE’S behalf, FIE presumably would have directly performed those services and received the service charges. In that scenario, all of those administrative costs (i.e., billing and collection costs) presumably would be included among the insurer’s costs of providing insurance coverage for a certain period of time (e.g., a one-month term).

From an insurer’s perspective, the premium charged an insured for insurance coverage for a certain period presumably includes, and generally exceeds, all costs associated with providing that coverage. Therefore, an insurance premium includes not only the “net premium,” or actuarial cost of the risk covered (i.e., expected amount of claims payments), but also the direct and indirect costs associated with providing that insurance coverage and any profit or additional assessment charged (e.g., “loading”). (Cf. Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32 Cal.3d 649, 660 [186 Cal.Rptr. 578, 652 P.2d 426] [discussing elements of “gross premiums” for insurance company taxation purposes].) Because the direct administrative cost of creating and mailing bills for and collecting payments for the premium charged for insurance coverage provided for a certain policy period (e.g., a one-month term) is presumptively included among an insurer’s costs of providing insurance coverage, that cost is presumptively part of the premium charged by an insurer for providing insurance coverage for a certain period. Accordingly, consideration of premium from an insurer’s perspective supports our conclusion that an insurer’s requirement that an insured pay a service charge for those administrative services, in addition to payment in full of the stated premium, is necessarily included within the term “premium,” as used in section 381, subdivision (f).

C

The service charges FIE required Troyk and the other class members to pay were not imposed for the privilege of paying the premium for a six-month term policy in monthly installments or otherwise over time. Rather, as shown by the Monthly Payment Agreement endorsement (form No. E0022), the policy issued to the class members was for a one-month term, not a six-month term. Although FIE initially offered Troyk (and presumably the other class members) a six-month term policy that would not require payment of a service charge were the stated six-month premium paid in full, FIE also offered Troyk and the other class members the option to pay their premium on a monthly basis on the condition that they enter into the Prematic Agreement with, and pay a service charge to, Prematic for the payment of monthly premiums. On election of that monthly option, FIE issued the Monthly Payment Agreement endorsement (form No. E0022), amending the term of the policy from six months to one month. Therefore, the end result was that the class members did not have an FIE policy for a six-month term for which they paid monthly installments toward a six-month premium, but instead they had a one-month term for which they paid the stated premium in full (in addition to the service charge). The fact the Monthly Payment Agreement provided that class members had the right to extend the term of the one-month policy “for successive monthly periods if the premium is paid when due” supports, rather than weighs against, our conclusion. That language shows “the premium” is payable for the policy’s one-month term. That agreement also provided: “The premium is due no later than on the expiration date of the then current monthly period.” (Italics added.) That language likewise shows “the premium” is payable for the policy’s one-month term. Furthermore, we note the Monthly Payment Agreement does not use the term “installment” or any other language that would suggest an insured will be paying each month only part of a greater premium for a period of coverage longer than one month (e.g., six months).

We conclude neither the Monthly Payment Agreement nor any of the other policy documents are reasonably susceptible of the interpretation proposed by Farmers. Rather, the policy documents are reasonably susceptible of only one interpretation — that each class member had a policy for a one-month, and not a six-month, term. Farmers’ various machinations or devices (e.g., initially offering the class members a six-month term policy and then requiring them to enter into the Prematic Agreement with, and pay service charges to, Prematic to obtain a one-month term policy) do not obscure the fact the class members ultimately obtained a one-month term policy (albeit renewable monthly) for which FIE required them to pay a service charge (albeit to Prematic) in addition to making payment in full of the stated premium for that one-month term. Therefore, the policy documents support our conclusion that in the circumstances of this case the term “premium,” for purposes of section 381, subdivision (f), is the amount the class members were required to pay for insurance coverage for a one-month term (i.e., the stated premium plus the service charge imposed for payment in full of that stated premium). Accordingly, we are not persuaded by Farmers’ assertion that the plain meaning of the policy documents is class members paid monthly installments of premium for which monthly service charges were imposed.

D

None of the cases or other authorities cited by Farmers persuade us the term “premium,” as used in section 381, subdivision (f), does not include a service charge imposed for payment in full of the stated premium for a period of coverage (e.g., a one-month term). Contrary to Farmers’ assertion, Auto Club is factually inapposite and does not support Farmers’ position. In that case, the class members elected to pay the premiums for their one-year term policies in monthly installments, subject to additional charges for interest on the unpaid premium balance. (Auto Club, supra, 148 Cal.App.4th at p. 1222.) We held: “[T]he plain and ordinary meaning of the term ‘premium,’ as used in section 381, subdivision (f), does not include interest charged for the time value of money for utilizing the option of making payments of the annual premium in installments . . . .” (Auto Club, supra, 148 Cal.App.4th at p. 1237, fn. omitted.) Because in the instant case the class members paid service charges for payment in full of the premiums due for their one-month term policies, this case, unlike Auto Club, does not involve either payment of premium in installments over the period of coverage or any interest charged for the time value of money for making payments in installments. Accordingly, neither our holding nor our underlying reasoning in Auto Club provides support for Farmers’ contention.

Similarly, we conclude the cases Farmers cite from other jurisdictions are also factually inapposite and do not support their position. (See, e.g., Blanchard v. Allstate Ins. Co. (La.Ct.App. 2000) 774 So.2d 1002; Cacamo v. Liberty Mut. Fire Ins. Co. (La.Ct.App. 2004) 885 So.2d 1248; Nakashima v. State Farm Mut. Auto. Ins. Co. (Ct.App. 2007) 2007 NMCA 27 [141 N.M. 239, 153 P.3d 664].) Unlike the instant case, all of those cases involved true installment payments of premium.

We also are not persuaded to reach a different conclusion because of the State of California’s Department of Insurance’s (DOI) purported longstanding administrative practice regarding monthly installment service charges. In particular, Farmers submitted the declaration of Milo Pearson in support of their motion for summary judgment. In his declaration, Pearson, a former DOI deputy commissioner, explained that, after the passage of Proposition 103 in 1988, the DOI treated monthly service charges as separate from premiums for purposes of automobile insurance rate approval. Assuming arguendo Pearson’s declaration accurately describes DOI’s past practices, we nevertheless are not persuaded to reach a different conclusion in this case because that purported past practice of the DOI involved service charges for true installment payments of premium over time, unlike the charges in this case. Furthermore, that purported past practice involved DOI rate approval, which involves a different purpose than the consumer protection policy disclosures required by section 381. In any event, the DOI’s purported past practices do not control our de novo determination of the question of law on the meaning of the term “premium,” as used in section 381, subdivision (f).

Similarly, we do not rely on the DOFs opinion letter dated April 25, 2006, which Troyk cites, in reaching our conclusion on the meaning of the term “premium,” as used in section 381, subdivision (f). We discussed that opinion letter in Auto Club and concluded we were not bound by the DOFs administrative interpretation of statutory language, which is a question of law for our independent determination. (Auto Club, supra, 148 Cal.App.4th at pp. 1235-1237.) Furthermore, as we stated in Auto Club, “because the DOI has not issued a formal regulation or had a long-standing opinion on that question ... , we do not defer to the DOI’s opinion. [Citations.]” (Id. at p. 1236.) Rather than restating our reasoning for not relying on the DOI’s opinion letter, we incorporate herein the reasoning we expressed in Auto Club. (Id. at pp. 1235-1237.)

Also, as in Auto Club, we do not rely on the taxation cases cited by Troyk and relied on by the trial court. (See, e.g., Metropolitan Life Ins. Co. v. State Bd. of Equalization, supra, 32 Cal.3d 649; Allstate Ins. Co. v. State Board of Equal. (1959) 169 Cal.App.2d 165 [336 P.2d 961]; Interinsurance Exchange v. State Bd. of Equalization (1984) 156 Cal.App.3d 606 [203 Cal.Rptr. 74].) Because those cases involve the interpretation of the term “gross premiums” for purposes of insurance company taxation and are otherwise factually inapposite, we do not rely on those taxation cases in interpreting the meaning of the term “premium,” as used in section 381, subdivision (f). (Auto Club, supra, 148 Cal.App.4th at pp. 1232-1234.) Similarly, although Troyk cites two California Attorney General opinions in support of his position, “both opinions related to the definition of ‘gross premiums’ in the context of insurance company taxation. (See 9 Ops.Cal.Atty.Gen. 257 (1947); 58 Ops.Cal.Atty.Gen. 768 (1975).) Therefore, those opinions are factually and legally inapposite . . . .” (Auto Club, at p. 1235.) Accordingly, we do not rely on those opinions in interpreting the meaning of the term “premium,” as used in section 381, subdivision (f).

E

Contrary to Farmers’ assertion, the “rule of lenity” does not apply in this case. When language of a criminal statute is reasonably susceptible of two interpretations, the rule of lenity ordinarily supports an interpretation of that language favorable to a party who may be subject to criminal prosecution or penalties. (See, e.g., Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1154 [108 Cal.Rptr.2d 445, 25 P.3d 649]; People v. Garcia (1999) 21 Cal.4th 1, 10-11 [87 Cal.Rptr.2d 114, 980 P.2d 829]; People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312 [58 Cal.Rptr.2d 855, 926 P.2d 1042]; People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal.Rptr. 213, 726 P.2d 1288].) Farmers argue that because section 383 subjects FIE (and possibly FGI) to potential criminal prosecution or penalties for violation of section 381, subdivision (f), the rule of lenity applies in this case. Section 383 provides: “It is a misdemeanor: [¶] (a) For any insurer, or any agent of any insurer, to issue a policy in violation of the requirements of subdivision (f) of section 381. . . .” However, because the meaning of the term “premium,” as used in section 381, subdivision (f), is clear and unambiguous and not reasonably susceptible to the interpretation proposed by Farmers, as discussed above, there is no ambiguity in section 381’s language that would require us to consider the rule of lenity. (Auto Club, supra, 148 Cal.App.4th at p. 1237, fh. 15; Garcia, at pp. 10-11; Lungren, at p. 312; Overstreet, at p. 896.) In any event, because the two possible interpretations cited by Farmers do not “stand in relative equipoise” on consideration of the legislative intent of consumer protection underlying section 381, subdivision (f), the rule of lenity would not apply to require adoption of the interpretation proposed by Farmers. (People v. Jones (1988) 46 Cal.3d 585, 599 [250 Cal.Rptr. 635, 758 P.2d 1165]; see People v. Avery (2002) 27 Cal.4th 49, 58 [115 Cal.Rptr.2d 403, 38 P.3d 1].)

F

Our interpretation of the term “premium,” as used in section 381, subdivision (f), does not necessarily conflict with other provisions of the Insurance Code. Although Farmers cite various Insurance Code provisions (i.e., §§ 383.5, 480, 481, 1153, subd. (b), 1861.02, subd. (a)), they do not persuade us those provisions both have the same legislative purpose as section 381, subdivision (f), and use the term “premium” in a manner necessarily inconsistent with our interpretation of that term as used in section 381, subdivision (f). Therefore, the general rule favoring consistent interpretation of a term used throughout a code does not apply. (Hassan v. Mercury American River Hospital (2003) 31 Cal.4th 709, 716 [3 Cal.Rptr.3d 623, 74 P.3d 726]; People v. Roberge (2003) 29 Cal.4th 979, 987 [129 Cal.Rptr.2d 861, 62 P3d 97].)

HI

Compliance with Section 381, Subdivision (f)

Farmers contend that, even if the service charge imposed in this case is premium required to be disclosed in the policy, FIE complied, either actually (because of incorporation by reference to other documents) or substantially, with section 381, subdivision (f)’s disclosure requirement.

A

Farmers argue FIE actually complied with section 381, subdivision (f)’s requirement that the service charge, as part of premium, be disclosed in the policy because the policies FIE issued to Troyk and the other class members incorporated by reference other documents that disclosed the service charge. Therefore, although the policies on their face did not expressly disclose the service charge, the policies’ reference to other documents that did, in fact, expressly disclose the service charge resulted in actual compliance with section 381, subdivision (f)’s disclosure requirement.

“A contract may validly include the provisions of a document not physically a part of the basic contract. ... ‘It is, of course, the law that the parties may incorporate by reference into their contract the terms of some other document. [Citations.] But each case must turn on its facts. [Citation.] For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.’ ” (Williams Constr. Co. v. Standard-Pacific Corp. (1967) 254 Cal.App.2d 442, 454 [61 Cal.Rptr. 912].) “The contract need not recite that it ‘incorporates’ another document, so long as it ‘guide[s] the reader to the incorporated document.’ [Citations.]” (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54 [67 Cal.Rptr.2d 850].)

Assuming arguendo that the doctrine of incorporation by reference can apply in the context of the insurance policy disclosures required by section 381 (and we have our doubts that it can), we nevertheless conclude the policies in this case did not clearly and unequivocally refer to and incorporate the service charge (i.e., part of premium) disclosed only in the Prematic Agreement and Prematic’s bills. Farmers argue the doctrine of incorporation by reference applies in this case because FIE’s declarations page “guided” Troyk and the class members to the Prematic Agreement and Prematic’s monthly bills, both of which fully disclosed the service charge. Our review of Troyk’s declarations page (which presumably also represents the class members’ declarations pages) shows it contains only two references to Prematic: (1) “PREMATIC NO[.] A641249” appears below the section listing the policy number and effective period of coverage; and (2) “PREMATIC” appears in the “policy activity” section adjacent to the word “Total.” Although the declarations page contained those truncated, vague and obtuse references to “Prematic,” we conclude they were insufficient to clearly and unequivocally evidence an intent that the Prematic Agreement (including its disclosure of the service charge), or Prematic’s monthly bills, be incorporated into the declarations page or other policy document. (Williams Constr. Co. v. Standard-Pacific Corp., supra, 254 Cal.App.2d at p. 454; cf. Fogel v. Farmers Group, Inc. (2008) 160 Cal.App.4th 1403, 1420 [74 Cal.Rptr.3d 61] [policy’s reference to a power of attorney did not incorporate by reference the subscription agreement naming FGI as the subscribers/insureds’ attorney-in-fact].) Furthermore, “any ambiguity or uncertainty in an insurance policy is to be resolved against the insurer.” (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437 [296 P.2d 801].) To the extent the references in the declarations page were ambiguous or uncertain regarding incorporation of the Prematic Agreement and Prematic’s bills, we resolve that ambiguity or uncertainty against FIE. (Ibid.) Accordingly, we reject Farmers’ assertion that the policy actually disclosed the service charge by incorporating by reference the Prematic Agreement and Prematic’s bills.

B

Farmers also argue they substantially complied with section 381, subdivision (f), because FIE, at most, only technically deviated from section 381, subdivision (f)’s disclosure requirement. They argue that because Troyk and the other class members were, in fact, aware of the service charge imposed pursuant to the Prematic Agreement and Prematic’s bills, FIE substantially complied with section 381, subdivision (f).

“ ‘Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to tire substance essential to every reasonable objective of the statute.’ [Citation.] Where there is compliance as to all matters of substance[,] technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form. When the plaintiff embarks [on a course of substantial compliance], every reasonable objective of [the statute at issue] has been satisfied.” (Southern Pac. Transportation Co. v. State Bd. of Equalization (1985) 175 Cal.App.3d 438, 442 [221 Cal.Rptr. 12].) “Thus, the doctrine gives effect to our preference for substance over form, but it does not allow for an excuse to literal noncompliance in every situation.” (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1430 [34 Cal.Rptr.3d 547].) Furthermore, the doctrine of substantial compliance does not apply at all when a statute’s requirements are mandatory, instead of merely directory. (Ibid.; D’Agostino v. Superior Court (1995) 33 Cal.App.4th 107, 117 [39 Cal.Rptr.2d 112].) A mandatory statute “is one that is essential to the promotion of the overall statutory design and thus does not permit substantial compliance. [Citation.]” (Robertson, at p. 1430.)

We conclude section 381, subdivision (f)’s disclosure requirement is mandatory and not merely directory. Section 381, subdivision (f), requires that an insurance policy state the premium for insurance coverage. As we discussed above, that statute is a consumer protection statute. Therefore, it requires an express statement in an insurance policy of the premium charged by an insurer and does so presumably to protect consumers from confusion regarding the premium charged and to discourage insurers from misleading consumers regarding the amount of premium charged. Furthermore, that express statement of premium in a policy allows a consumer to easily compare that premium with premiums charged by other insurers for the same coverage, thereby promoting healthy comparison shopping by consumers and presumably encouraging insurers to offer competitive premiums for their insurance. Were insurers allowed, by substantial compliance or otherwise, to state all or part of a premium in documents other than a policy, those underlying purposes of section 381, subdivision (f), would not be promoted. Because section 381, subdivision (f)’s disclosure requirement is essential to the overall promotion of the statutory design, we conclude that statute’s disclosure requirement is mandatory. (Robertson v. Health Net of California, Inc., supra, 132 Cal.App.4th at p. 1430.) Accordingly, the doctrine of substantial compliance does not apply to the disclosures required by section 381, subdivision (f). (Robertson, at p. 1430; D’Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117.)

In any event, even if section 381, subdivision (f)’s disclosure requirement is not mandatory, we nevertheless would conclude that FIE did not actually comply in respect to the substance essential to every reasonable objective of the statute. (Southern Pac. Transportation Co. v. State Bd. of Equalization, supra, 175 Cal.App.3d at p. 442.) In the circumstances of this case, FIE did not state anywhere in the policy the service charge it required for full payment of the premium it stated in the policy. The amount of the service charge was not stated anywhere in the main policy, declarations page, or endorsements. Furthermore, none of the policy documents contain any reference to that service charge, nor do they disclose that the service charge is really part of the premium charged for the insurance coverage provided by FIE. The only statements of the amount of, and other information regarding, the service charge are set forth in nonpolicy documents (e.g., the Prematic Agreement and Prematic’s bills). We conclude FIE did not actually comply in respect to the substance essential to every reasonable objective of section 381, subdivision (f), which objectives we discussed above. (Southern Pac. Transportation Co., at p. 442; cf. Allstate Ins. Co. v. Dean (1969) 269 Cal.App.2d 1, 3-4 [76 Cal.Rptr. 543]; Robertson v. Health Net of California, Inc., supra, 132 Cal.App.4th at pp. 1430-1431; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 72-73 [16 Cal.Rptr.3d 687].) Farmers have not shown FIE substantially complied with section 381, subdivision (f)’s disclosure requirement.

IV

UCL Cause of Action

Farmers contend the trial court erred by concluding Troyk met his burden in moving for summary judgment by showing there were no triable issues of material fact and that he and the class members were entitled to judgment as a matter of law on the UCL cause of action. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 843.)

A

In Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463 [38 Cal.Rptr.3d 653], we described the basis for a UCL cause of action:

“[Business and Professions Code] [s]ection 17200 of the UCL defines ‘unfair competition’ as ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with [Business and Professions Code] Section 17500) of Part 3 of Division 7 . . . .’ Therefore, an act or practice is ‘unfair competition’ under the UCL if it is forbidden by law or, even if not specifically prohibited by law, is deemed an unfair act or practice. As the California Supreme Court stated in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, at page 1143 [131 Cal.Rptr.2d 29, 63 P.3d 937]: ‘[Business and Professions Code] [s]ection 17200 “borrows” violations from other laws by making them independently actionable as unfair competitive practices. [Citation.] In addition, under [Business and Professions Code] section 17200, “a practice may be deemed unfair even if not specifically proscribed by some other law.” [Citation.]’ The remedies available under the UCL are ‘cumulative ... to the remedies or penalties available under all other laws of this state.’ ([Bus. & Prof. Code,] § 17205.) ‘Under [Business and Professions Code] [section 17204], a private plaintiff may bring a UCL action even when “the conduct alleged to constitute unfair competition violates a statute for the direct enforcement of which there is no private right of action.” [Citation.]’ (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 950 [119 Cal.Rptr.2d 296, 45 P.3d 243], quoting Stop Youth Addiction, Inc. v. Lucky Stores, Inc. [(1998) 17 Cal.4th 553,] 565 [71 Cal.Rptr.2d 731, 950 P.2d 1086].) ‘[I]n enacting the UCL itself, and not by virtue of particular predicate statutes, ... the Legislature has conferred upon private plaintiffs “specific power” [citation] to prosecute unfair competition claims.’ (Stop Youth Addiction, Inc., supra, at p. 562.)

“By ‘borrowing’ violations of other laws, the UCL deems those violations ‘unfair competition’ independently actionable under the UCL. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [83 Cal.Rptr.2d 548, 973 P.2d 527].) ‘Virtually any law-federal, state or local — can serve as a predicate for a [Business and Professions Code] section 17200 action. [Citation.]’ (State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1102-1103 [53 Cal.Rptr.2d 229], disapproved on another ground in Cel-Tech, at pp. 184-185.)” (Smith v. Wells Fargo Bank, N.A., supra, 135 Cal.App.4th at pp. 1479-1480, fn. omitted.) As we noted in Smith, “on November 2, 2004, Proposition 64 passed, amending [Business and Professions Code] section 17204 to delete language expressly authorizing any person acting for the interests of the general public to bring a UCL cause of action, and to add language expressly authorizing ‘any person who has suffered injury in fact and has lost money or property as a result of such unfair competition’ to bring a UCL cause of action.” (Smith v. Wells Fargo Bank, N.A., supra, 135 Cal.App.4th at p. 1480, fn. 13.)

B

Farmers initially argue that neither FIE nor FGI engaged in any predicate unlawful business practice or conduct that could constitute unfair competition and provide a basis for a UCL cause of action. They argue Troyk did not show FIE and FGI violated section 381, subdivision (f), which alleged violation would provide the predicate unlawful business practice or conduct for a UCL cause of action. However, as we concluded above, in the circumstances of this case the term “premium,” as used in section 381, subdivision (f), is the amount Troyk and the other class members were required to pay for insurance coverage for a one-month term (i.e., the premium stated in the policy plus the service charge required for payment in full of that stated premium). The service charges FIE required Troyk and the other class members to pay were not imposed for the privilege of paying a six-month term premium in monthly installments or otherwise over time. Rather, as shown by the Monthly Payment Agreement endorsement (form No. E0022), the policies issued to the class members were for one-month terms, not six-month terms. Furthermore, we concluded above that the policy documents issued by FIE to the class members did not either actually or substantially comply with section 381, subdivision (f)’s disclosure requirement. Because none of the policy documents (i.e., main policy, declarations page, and endorsements) disclosed the service charge that FIE required the class members to pay (albeit to Prematic) when paying in full the stated premium for their one-month terms, FIE violated section 381, subdivision (f). That predicate statutory violation is an unlawful business practice constituting unfair competition under the UCL.

Although FGI apparently does not contend on appeal that it, as FIE’s agent and attorney-in-fact, cannot be found to be liable together with FIE for FIE’s violation of section 381, subdivision (f), and resultant unfair competition under the UCL, we nevertheless briefly address that issue. As FIE’s attorney-in-fact, FGI performed managerial, underwriting, and administrative services for FIE, a reciprocal or interinsurance exchange. As noted in Fogel, “[t]he interinsurance exchange [i.e., FIE] is managed by the attorney-in-fact [i.e., FGI] . . . .” (Fogel v. Farmers Group, Inc., supra, 160 Cal.App.4th at p. 1407, italics added.) Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642 [155 Cal.Rptr. 843] stated: “[FGI] was formed to render management services for [FIE] for which [FGI] received a percentage of premiums paid by [FIE’s] policyholders.” (Id. at p. 652.) In particular, FGI, as FIE’s managing arm, presumably drafted the policy documents in this case and executed the class members’ policies on FIE’s behalf. Therefore, because FGI, as FIE’s managing agent, was directly involved in the drafting and execution of the class members’ policies, it must at least share with FIE responsibility for the UCL unlawful business practice resulting from FIE’s violation of section 381, subdivision (f).

Furthermore, section 1281 provides: “Reciprocal or interinsurance contracts, the exchange thereof, the subscribers, attorneys in fact, agents, and representatives, and all matters incident to or concerned with such contracts and relationship, shall be subject to and regulated by all of the provisions of this code, whether or not such provisions specifically refer to reciprocals or interinsurance exchanges, except as otherwise exempted in this chapter.” (Italics added.) Because FGI, as FIE’s attorney-in-fact, presumably directly drafted, or at least managed and approved the drafting of, the policy documents for the class members, FGI is “subject to and regulated by” section 381, subdivision (f)’s disclosure requirement and is therefore liable for any violation of that statute. (§ 1281.) Accordingly, there can be no reasonable dispute that FGI may be liable for the violation of section 381, subdivision (f), based on FIE’s failure to disclose the service charge in the class members’ policies. Because FGI may be liable for the instant violation of section 381, subdivision (f), it likewise may be liable, together with FIE, for the UCL unlawful business practice based on that violation

C

Farmers also argue the trial court abused its discretion in awarding the class members restitution of the service charges they paid to Prematic during the class period. Farmers argue restitution cannot be awarded against them because the service charges were paid directly to Prematic and not to either FGI or FEE. In support of their argument, they selectively cite language from Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th 1134: “Any award that plaintiff would recover from defendants would not be restitutionary as it would not replace any money or property that defendants took directly from plaintiff.” (Id. at p. 1149.) However, that language was parsed from the facts and analysis in that case, which involved money in which the plaintiff never had a vested interest and for which the plaintiff, in effect, sought disgorgement, rather than restitution, from the defendant. (Id. at pp. 1148-1150.) Therefore, we conclude Korea Supply is inapposite to our case and does not hold that a plaintiff who paid a third party money (i.e., money in which the plaintiff had a vested interest) may not seek UCL restitution from a defendant whose unlawful business practice caused the plaintiff to pay that money. As Shersher v. Superior Court (2007) 154 Cal.App.4th 1491 [65 Cal.Rptr.3d 634] stated: “The message of Korea Supply is that ‘in the UCL context. . . restitution means the return of money to those persons from whom it was taken or who had an ownership interest in it.’ [Citation.]” (Shersher, at p. 1497, quoting Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 455 [30 Cal.Rptr.3d 210].)

Business and Professions Code section 17203 provides for restitution under the UCL: “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or p