Citations
- 72 Cal. App. 4th 861
Full opinion text
Opinion
KREMER, P. J.
Plaintiff South Bay Chevrolet appeals a judgment after court trial favoring defendant General Motors Acceptance Corporation (GMAC) on South Bay’s complaint for GMAC’s alleged unfair business practices violating Business and Professions Code section 17200. Asserting GMAC engaged in unfair business practices as a matter of law, South Bay contends the court erred in not granting South Bay judgment on its individual claim under section 17200. South Bay also contends the court erred in granting GMAC’s motion for judgment under Code of Civil Procedure section 631.8 on South Bay’s “private attorney general” claim under section 17200. Further, South Bay asserts various evidentiary errors, attacks the denial of its summary judgment motion, and challenges the cost award to GMAC. We affirm the judgment.
I
Introduction
GMAC provided short-term loans to finance automotive dealership South Bay’s purchases of vehicles for resale. Consistent with industry practice, GMAC calculated interest on such loans based upon a 360-day year (the 365/360 method).
South Bay filed this lawsuit alleging GMAC violated section 17200 by using the 365/360 interest calculation method assertedly “without specific contractual authorization and disclosure.” South Bay contended GMAC’s use of such “unlawful, unfair, deceptive and misleading” method resulted in interest overcharges. South Bay also sought to proceed against GMAC under section 17200 on a private attorney general claim on behalf of all California automotive dealerships receiving similar financing from GMAC. Under Code of Civil Procedure section 631.8, the superior court granted judgment favoring GMAC on South Bay’s private attorney general claim on the ground that “mini-trials” would be necessary with respect to each California GMAC-financed dealership due to various uniquely individual questions of fact. After trial, the court also granted judgment favoring GMAC on South Bay’s individual claim under section 17200. Based upon substantial evidence that at relevant times South Bay knew GMAC was using the 365/360 method, the court found GMAC’s use of that method did not violate section 17200. In effect, the court concluded that South Bay failed to prove that GMAC engaged in such challenged business practice without contractual authorization or disclosure.
California statutory and case law recognizes that under certain circumstances use of the 365/360 method may be misleading. However, South Bay knew and expected from the outset of its relationship with GMAC that such method would be used. Further, section 17200 is directed toward protecting the general public, not automotive dealerships aware of GMAC’s use of the 365/360 method. Hence, we affirm the judgment.
II
Facts
We state the facts and reasonable inferences in the light most favorable to GMAC as respondent. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 [68 Cal.Rptr.2d 758, 946 P.2d 427]; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178, fn. 27 [56 Cal.Rptr.2d 223].)
A
GMAC Finances Dealerships’ Inventory
GMAC operates a business of lending automotive dealerships money to finance their purchases of vehicles from General Motors Corporation (General Motors) and other entities. Such loans are short-term instruments outstanding for fewer than 90 days on average and are known in the industry as wholesale floor plan financing or wholesale floor plan loans.
A dealership initiating wholesale floor plan financing with GMAC enters into a wholesale security agreement giving GMAC a security interest in the vehicles being financed. However, the wholesale security agreement does not obligate a dealership to borrow any money from GMAC or require GMAC to lend the dealership any money. Further, the wholesale security agreement does not contain such specific loan terms as the amount of credit to be extended, the rate of interest, the method of interest calculation, repayment provisions, or the beginning or ending dates of the financing. Instead, the wholesale security agreement simply provides that a dealership receiving wholesale floor plan financing from GMAC is obligated to pay interest on the dealership’s outstanding wholesale floor plan loans “at the rate per annum designated by GMAC from time to time and then in force under the GMAC Wholesale Plan.” The GMAC wholesale plan incorporated into the wholesale security agreement is a set of various individualized features and programs—including the dealer wholesale credit account plan, the wholesale incentive plan, the wholesale floor plan protection program and the wholesale installment sales program—communicated to the dealership orally or in writing throughout the course of the dealership’s relationship with GMAC. Before and after executing a wholesale security agreement, GMAC also communicates to a dealership orally and in writing other terms of its financing offer.
Thus, the wholesale security agreement is not the sole document setting forth the terms of the wholesale floor plan financing extended by GMAC but instead is only the first step leading to a series of individual lending agreements that commence independently when vehicles are actually floored. Until a vehicle is floored, no credit is extended. Each time a GMAC-financed dealership orders a vehicle from a manufacturer, the dealership enters into a separate lending agreement with GMAC. Such agreement obligates the dealership to pay GMAC interest on the outstanding balance for the floor-planned vehicles at a floating interest rate designated by GMAC from time to time. GMAC’s interest rate floats in relation to a bank prime rate. When the prime rate fluctuates, GMAC’s branch offices send dealerships rate change notices informing them of the new rate. Some of GMAC’s branch offices refer to the rates quoted in those notices as “true rates,” but other branches do not. GMAC also sends dealerships monthly billing statements detailing the interest charges accrued for each day a floor-planned vehicle is outstanding during the month. Interest due under each vehicle’s floor plan loan agreement is listed separately.
On its wholesale floor plan loans to dealerships, GMAC charges “simple” or “true” (not compound) interest calculated using the 365/360 method. Under the 365/360 method, the per annum interest rate is multiplied by the outstanding loan balance and divided by 360 to determine a daily interest charge. The daily interest charge is then multiplied by the actual number of days the loan is outstanding to determine the total interest charges for the billing period. Under the 365/360 method, the daily interest rate is constant for a given per annum interest rate. Many banks and financial institutions commonly use the 365/360 method as their prevalent method of interest calculation for ■ short-term commercial loans such as wholesale floor plan financing. Wholesale floor plan lenders other than GMAC also use the 365/360 method on loans made to dealerships.
Over the life of a wholesale floor plan loan, a dealership pays GMAC total interest equal to the amount listed on the monthly billing statements minus the amount of any wholesale credits, rebates, and subsidies the dealership may receive under the GMAC wholesale plan made a part of each of the series of wholesale floor plan loan agreements. Often constituting a significant component of a dealership’s business, wholesale floor plan financing is generally overseen by the dealership’s business manager or financial manager.
B
South Bay and Its Principals
In 1946 South Bay was founded as a Chevrolet dealership by the parents of its eventual principal, Travis Reneau. Reneau worked at South Bay from its founding, owned equity in the business beginning in the early 1950’s, and served as the company’s president from 1961 until 1986. South Bay’s principal, David Ordway, joined the business as a 25 percent owner in 1981 and became its president in 1986. In January 1996, after suffering financial difficulties, South Bay sold its operations.
C
South Bay’s Course of Dealings With GMAC
From its founding until the sale of its operations, South Bay received wholesale floor plan financing from GMAC except for the 1982-1986 period when Bank of America served as South Bay’s wholesale floor plan lender. South Bay paid both of its lenders wholesale floor plan interest calculated using the 365/360 method.
South Bay averaged about $4 million in wholesale floor plan loans outstanding to GMAC. South Bay delegated to its business manager and support staff the responsibility for monitoring its wholesale floor plan financing. Before the early 1960’s, GMAC did not send billing statements to dealerships. Instead, during those early years of the parties’ relationship, South Bay’s office manager calculated by hand the wholesale floor plan interest owing to GMAC on each vehicle under the 365/360 method.
In June 1986 South Bay entered into a wholesale security agreement with GMAC. GMAC’s San Diego branch office that served South Bay had a regular practice of discussing its interest calculation method with a dealership within 24 hours after the dealership signed up for wholesale floor plan financing with GMAC. After commencement of financing, GMAC’s sales staff also had the practice of explaining the calculations on wholesale floor plan loan billing statements. Consistent with those regular practices, GMAC’s sales supervisor Helen Azevedo orally informed South Bay of its interest calculation methods soon after South Bay executed the June 1986 wholesale security agreement.
In September 1986 South Bay delegated to its business manager, Sue Fenn, and her staff the responsibility for overseeing South Bay’s wholesale floor plan financing. South Bay’s principals granted Fenn broad unfettered discretion to oversee the day-to-day operation of such financing. Fenn was specifically responsible for checking each wholesale floor plan financing billing statement from GMAC to ensure South Bay was not overcharged, reviewing all notices from GMAC about wholesale floor plan financing charges, and communicating with GMAC about those charges. South Bay’s principal, Ordway, relied on Fenn to understand many aspects of the interest charges including the interest calculation method and to double-check each billing statement for accuracy. South Bay also “authorized and empowered” Fenn to execute “all documents or instruments including (without limiting the generality of the foregoing) promissory notes, acceptances, agreements, or any assignments thereof, in connection with any transaction between this corporation [South Bay] and General Motors Acceptance Corporation under the GMAC Wholesale Plan.”
Due to her earlier experience at another dealership, Fenn knew of the 365/360 method before becoming South Bay’s business manager. Consistent with her expectation that GMAC would use the 365/360 method, Fenn employed such method in regularly spot-checking South Bay’s billing statements for accuracy and reviewing materials provided by GMAC and General Motors containing explicit descriptions of interest computation using the 365/360 method. Such written materials included GMAC’s monthly wholesale billing statements detailing separately the interest charges under each vehicle’s wholesale floor plan loan agreement; GMAC’s guides to wholesale billing statements; and other documents relating to various wholesale floor plan financing programs.
Ill
Superior Court Proceedings
On May 23, 1995, South Bay filed this lawsuit against GMAC on behalf of itself, the general public of California, and GMAC’s California wholesale floor plan borrowers. South Bay alleged GMAC violated section 17200 by using the 365/360 method to calculate interest owing from automobile dealerships “without specific contractual authorization and disclosure.” South Bay’s complaint also included statewide class action allegations.
In May 1996, after each party had unsuccessfully sought summary judgment, the parties stipulated that in its representative capacity South Bay was seeking “to pursue its claims solely and exclusively as a private attorney general on behalf of the general public of the state of California, pursuant to California Business and Professions Code section 17200 et seq.” In accord with the stipulation, the court struck South Bay’s class action allegations without prejudice.
In May 1997 the matter came on for court trial. At the close of South Bay’s case, the court granted GMAC’s motion for judgment under Code of Civil Procedure section 631.8 on South Bay’s private attorney general claim under section 17200.
After trial, the court found for GMAC on South Bay’s individual claim under section 17200 and entered judgment favoring GMAC. The court also awarded GMAC $83,005.54 costs. South Bay appeals.
IV
Discussion
A
South Bay’s Individual Claim
South Bay contends the trial court should have concluded South Bay was entitled to judgment as a matter of law on its individual claim against GMAC under section 17200. South Bay asserts undisputed evidence established that although the parties’ wholesale security agreement required GMAC to quote a “per annum” interest rate and GMAC’s interest rate notices quoted annual interest rates, GMAC violated section 17200 by calculating interest under the 365/360 method without disclosing it used such method or that such method resulted in GMAC charging effective annual interest rates higher than its quoted rates. However, as we shall explain, the court’s findings favoring GMAC on South Bay’s individual claim were supported by substantial evidence and reasonable inferences. {Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053; Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at p. 1178, fn. 27.) In effect, South Bay improperly seeks reweighing on appeal of conflicting evidence presented at trial.
1
Trial Court’s Statement of Decision
In granting judgment favoring GMAC on South Bay’s individual claim under section 17200, the trial court expressly rejected South Bay’s allegation that without contractual authorization or disclosure GMAC quoted one interest rate on its wholesale floor plan loans and then charged another rate. Instead, the court concluded GMAC’s use of the 365/360 method to calculate interest in the context of its wholesale floor plan financing did not violate section 17200. Specifically, the court stated, “GMAC’s use of the method is not unlawful, unfair, untrue, deceptive, misleading or fraudulent” as to South Bay; and GMAC’s communications about interest rates and charges did not constitute misleading advertising under section 17500.
The following findings set forth in the court’s statement of decision supported the court’s conclusions:
Each separate wholesale floor plan loan extended to South Bay by GMAC was governed by the terms of the parties’ wholesale security agreement, terms specified in oral and written communications between South Bay personnel and GMAC, terms contained in various other written materials GMAC provided to South Bay, and terms established through the parties’ course of dealings;
South Bay received from GMAC monthly billing statements, guides, a disclosure about the dealer wholesale credit account program, bulletins from Chevrolet, and other documents permitting a reasonable dealership to determine or confirm that GMAC was using the 365/360 method;
Before entering into the disputed wholesale floor plan loans, South Bay knew that GMAC would use the 365/360 method to calculate interest; specifically, during the entire period of her employment with South Bay from September 1986 through mid-1994, South Bay’s business manager and corporate agent Fenn had knowledge of the practice; and since this was a suit by corporate dealership South Bay, its agent Fenn’s knowledge related to her wholesale financing area of responsibility was imputed to South Bay; floor plan financing; and in South Bay’s wholesale “floor plan loan contracts, GMAC was authorized to use the 365/360 method and references to ‘per annum’ interest were, by agreement of the parties, made with reference to a 360-day interest year.”
Both South Bay and GMAC agreed and understood that GMAC would quote interest rates based on a 360-day year rather than a 365-day year and calculate interest charges using the 365/360 method; the contracts for all such loans thus authorized GMAC’s use of the 365/360 method; South Bay realized the impact of such method over a period of 365 or 366 days; thus, in requesting and accepting each of its disputed wholesale floor plan loans, South Bay expected and understood that GMAC would use the 365/360 method; references in the wholesale security agreement and other GMAC materials to “per annum” interest rate and “true interest” were not inconsistent with use of the 365/360 method in the context of GMAC’s wholesale
South Bay was not likely to be deceived by GMAC’s business practice of using the 365/360 method to calculate interest on wholesale floor plan loans since both parties understood and expected the use of such method; and South Bay’s “knowledge, experience and communications with GMAC” rendered it “inconceivable” that South Bay “would or could have been deceived” by GMAC’s business practice of using such method on the disputed loans.
2
The Law
Section 17200 “is not confined to anticompetitive business practices, but is also directed toward the public’s right to protection from fraud, deceit, and unlawful conduct. [Citation.] Thus, California courts have consistently interpreted the language of section 17200 broadly.” (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 519 [63 Cal.Rptr.2d 118].) “ ‘The statute imposes strict liability. It is not necessary to show that the defendant intended to injure anyone.’ ” {Id. at p. 520, citing State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1102 [53 Cal.Rptr.2d 229] .) To state a claim under section 17200, a plaintiff “need not plead and prove the elements of a tort. Instead, one need only show that ‘members of the public are likely to be deceived.’ ” {Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1267 [10 Cal.Rptr.2d 538, 833 P.2d 545], citing Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 [197 Cal.Rptr. 783, 673 P.2d 660]; Chern, supra, 15 Cal.3d at p. 876.) “Allegations of actual deception, reasonable reliance, and damage are unnecessary.” {Committee on Children’s Television, Inc. v. General Foods Corp., supra, at p. 211; see also Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839 [33 Cal.Rptr.2d 438].) Further, the statute authorizes “courts to order restitution without individualized proof of deception, reliance, and injury if necessary to prevent the use or employment of an
unfair practice.” (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267; see also Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 453 [153 Cal.Rptr. 28, 591 P.2d 51] (Fletcher).) Because section 17200’s definition is “disjunctive,” the statute is violated where a defendant’s act or practice is unlawful, unfair, fraudulent or in violation of section 17500. (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1102.)
3
Analysis
South Bay contends GMAC’s business practice of using the 365/360 method to calculate interest on wholesale floor plan loans to California dealership South Bay violated section 17200 as a matter of law. Specifically, South Bay asserts GMAC’s wholesale security agreement and interest rate notices did not disclose GMAC’s use of the 365/360 method or that such use would result in GMAC’s charging effective annual interest rates higher than its quoted rates, to wit, an extra five or six days’ interest in each calendar year. Hence, South Bay concludes GMAC’s practices violated all four prongs of section 17200 in that they were assertedly “unlawful,” “unfair,” “fraudulent,” and in violation of section 17500.
The trial court correctly noted that to recover under section 17200, South Bay had the burden to establish GMAC’s conduct was unlawful, unfair, fraudulent or in violation of section 17500. (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1102.) The trial court also correctly noted that to recover under the third or fourth prong of section 17200, South Bay had the burden to establish GMAC engaged in a business practice “likely to deceive” the reasonable consumer to whom the practice was directed. (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267; Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211; Chem, supra, 15 Cal.3d at p. 876.) Applying those standards to this record, the trial court properly concluded South Bay failed to prove GMAC’s use of the 365/360 method to calculate interest on wholesale floor plan loans made to South Bay violated section 17200. Although South Bay’s complaint alleged that GMAC violated section 17200 by using the 365/360 method to calculate interest owing from South Bay “without specific contractual authorization and disclosure,” the record contained substantial evidence indicating that from 1991 to 1995, when requesting the disputed wholesale floor plan loans, South Bay knew, understood, agreed and expected that GMAC would use the 365/360 method to calculate the interest.
(a)
South Bay’s Knowledge of GMAC’s Use of 365/360 Method
Specifically, evidence demonstrated that South Bay’s business manager Fenn knew before and during the entire period of her employment at South Bay that GMAC used the 365/360 method to calculate interest on wholesale floor plan loans. Further, contrary to South Bay’s contention, the evidentiary record supported the trial court’s finding that South Bay was bound by Fenn’s knowledge. South Bay asserts evidence indicated Fenn was never a principal, owner or shareholder of South Bay; Fenn had no authority to choose South Bay’s financing, switch South Bay’s financing or sign guaranties on South Bay’s behalf; and Fenn’s job did not include responsibility for the terms of South Bay’s financing. However, evidence indicated Fenn’s job in fact included responsibility for the terms of South Bay’s wholesale floor plan financing with GMAC. Indeed, South Bay’s principals granted Fenn broad discretion to oversee the day-to-day operations of the wholesale floor plan financing including specifically the responsibility to check each wholesale floor plan financing billing statement from GMAC. Consistent with her responsibility for implementing all the terms of the wholesale floor plan financing, Fenn reviewed the correctness of GMAC’s monthly billing statements and understood how GMAC computed interest. Moreover, evidence indicated that Fenn’s task of checking the accuracy of GMAC’s billing statements was not possible without knowing GMAC’s method of interest calculation. Evidence also indicated South Bay expressly authorized and empowered Fenn to execute all agreements in connection with any transaction between South Bay and GMAC under GMAC’s wholesale plan. South Bay’s principal Ordway testified he “relied” on Fenn to understand many aspects of the interest charges including the calculation method. Additionally, South Bay’s principals, Ordway and Reneau, testified that when South Bay received disclosures from GMAC about its interest calculation method, they did not read those disclosures but instead relied on Fenn to do so. In sum, on this evidentiary record the trial court reasonably concluded South Bay could not be deceived since in her capacity as South Bay’s agent vested with responsibility for overseeing its wholesale floor plan financing, Fenn received adequate disclosures of GMAC’s use of the 365/ 360 interest calculation method and indeed had actual knowledge of its use. (Civ. Code, § 2332; Smith v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 1104, 1110 [199 Cal.Rptr. 881]; Heggblade-Marguleas-Tenneco, Inc. v. Sunshine Biscuit, Inc. (1976) 59 Cal.App.3d 948, 956 [131 Cal.Rptr. 183]; 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 101, pp. 98-99.)
The evidentiary record also supported the superior court’s finding that GMAC’s monthly billing statements, wholesale billing guides, and other wholesale plan disclosures provided South Bay with all information necessary to determine that the 365/360 method of interest calculation was being used. Indeed, South Bay’s expert Richard Ross acknowledged the wholesale security agreement lacked essential lending terms; several GMAC and General Motors documents expressly disclosed the 365/360 method; and GMAC’s billing statements reflected use of such method.
In sum, the record amply supported the trial court’s finding that when obtaining the disputed loans from GMAC, South Bay knew, understood, agreed and expected that GMAC would calculate interest using the 365/360 method.
(b)
No Unlawful Business Practice
“ ‘The “unlawful” practices prohibited by . . . section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. [Citation.] It is not necessary that the predicate law provide for private civil enforcement. [Citation.] As our Supreme Court put it, section 17200 “borrows” violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.’ ” (Hewlett v. Squaw Valley Ski Corp., supra, 54 Cal.App.4th at pp. 531-532, citing Saunders v. Superior Court, supra, 27 Cal.App.4th at pp. 838-839; see also Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383 [6 Cal.Rptr.2d 487, 826 P.2d 730]; People v. McKale (1979) 25 Cal.3d 626, 632 [159 Cal.Rptr. 811, 602 P.2d 731]; Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284, 1299 [22 Cal.Rptr.2d 20].)
South Bay contends for purposes of section 17200, GMAC’s business practice of calculating interest under the 365/360 method was “unlawful” as contrary to section 17500, Civil Code section 1916, Government Code section 6803, contract law and public policy. Specifically, asserting GMAC’s wholesale security agreement’s requirement that GMAC charge interest at a “per annum” rate barred GMAC from using the 365/360 method since “per annum” literally means a 365-day or 366-day year (Chern, supra, 15 Cal.3d at p. 876), South Bay contends GMAC breached such contractual requirement by not disclosing that GMAC used the 365/360 method or that such method would result, in GMAC’s charging effective annual interest rates higher than its quoted rates. Similarly, South Bay contends GMAC engaged in the assertedly unlawful practice of breaching its interest rate notices that often quoted annual interest rates as “% true” or “true interest.” However, South Bay’s contentions are without merit.
As the trial court properly noted in its statement of decision, since California has no law or regulation requiring a lender to use a 365-day year in computing interest on commercial loans, GMAC’s use of the 365/360 method was not unlawful per se. Further, South Bay has not identified any California or federal law requiring GMAC to use a 365-day year instead of the 360-day year in quoting annual interest rates on wholesale floor plan loans or requiring GMAC to specify the calculation method in the wholesale security agreement. Indeed, South Bay specifically declines to argue that use of the 365/360 method is per se unlawful in California. Instead, South Bay contends under the circumstances here that GMAC’s business practice of not disclosing its use of the 365/360 method or such method’s results was unlawful in light of the provision in the parties’ wholesale security agreement requiring GMAC to charge interest at a per. annum rate. (Fletcher, supra, 23 Cal.3d 442; Chern, supra, 15 Cal.3d 866.) However, as discussed, ample evidence demonstrated South Bay entered into the disputed loan agreements knowing, understanding, agreeing and expecting that GMAC would use the 365/360 method to calculate interest. Further, as the trial court properly found, GMAC’s use of the 365/360 method was not made unlawful merely because GMAC’s wholesale security agreement and its bulletins advising South Bay of interest rate changes did not specify GMAC’s use of such method. As the court correctly concluded, substantial evidence of GMAC’s overall communications and course of dealing with South Bay indicated GMAC’s use of the 365/360 method was not unlawful as breaching the parties’ contract or otherwise. (See Chern, supra, at p. 874.)
Moreover, South Bay’s experts, Ross and Colwell, acknowledged the 365/360 method was commonly used in calculating interest on commercial loans, whether regular loans or wholesale floor plan financing, and use of a 360-day year was assumed in short-term loans. Accounting and finance textbooks also described the 365/360 method as the common, usual and customary method for calculating daily interest. A dictionary defined simple interest as interest paid or computed often on the assumption each day constitutes 1/360th of a year. South Bay’s former business manager Fenn characterized the 365/360 method as “standard in the business, in the industry. It’s a norm. ... I would think anyone who is in the business would be knowledgeable about it.” South Bay’s expert Ross also acknowledged there was nothing inappropriate about a lender calculating interest under the 365/360 method if the borrower was made aware of such practice. Ross also acknowledged GMAC’s 1989 guide to its wholesale billing statements would lead a dealership “to believe that it’s a 365/360 when read in conjunction with the Wholesale Security Agreement. . . you could discover that this is really a 365/360.”
Finally, South Bay contends the Supreme Court has twice held that a lender’s improper use of the 365/360 method of interest calculation violates section 17500. (Fletcher, supra, 23 Cal.3d 442; Chern, supra, 15 Cal.3d 866.) South Bay asserts the trial court unsuccessfully sought to distinguish those cases on the theory South Bay did not prove any likelihood of deception. Specifically, South Bay faults the trial court for seeking to distinguish Chem as involving “isolated loan transactions governed by single loan contracts where there was no prior extended course of dealing or communications.” Similarly, South Bay faults the trial court for attempting to distinguish Fletcher on the ground that South Bay’s lawsuit involved “an ongoing relationship between sophisticated business entities and a lender with many new loans being initiated each month.” However, contrary to South Bay’s suggestion, nothing in Chem or Fletcher established an absolute rule precluding wholesale floor plan lenders from ever using the 365/360 method of interest calculation. As we shall explain, those cases are properly distinguishable as involving loans made to individual consumers, not to a financially sophisticated automotive dealership with knowledge of the lender’s use of the 365/360 method in the parties’ ongoing relationship.
With respect to its individual claim against GMAC under section 17200, South Bay’s reliance on Chern, supra, 15 Cal.3d 866, is unavailing. In Chern, after quoting an interest rate in its initial dealings with potential borrowers, the defendant bank quoted a higher actual rate based on use of the 365/360 method when ultimately closing a loan with a customer. (Id. at p. 874.) The plaintiff borrower brought an action against the bank on behalf of herself and a class of similarly situated persons seeking damages on two theories, to wit, breach of contract and the making of false or misleading statements with respect to interest rate calculation (§ 17500). (Chern, supra, at pp. 869-871, 873.) The plaintiff also sought injunctive relief under section 17500. (Chern, supra, at pp. 870-871, 875.) In affirming a defense summary judgment on the plaintiff’s claim for damages for breach of contract, the Supreme Court stated such claim was defeated by the plaintiff’s knowledge at the time she entered into the loan contract that the interest rate was based on the 365/360 method. (Id. at p. 873.) Rejecting the plaintiff’s contention that she should be permitted to represent the class on its breach of contract claim despite her own inability to prevail on the merits, the Supreme Court also upheld dismissal of the class action claim for breach of contract for want of a proper representative. (Id. at p. 874.) Hence, contrary to South Bay’s contention, Chern, is not inconsistent with the trial court’s holding favoring GMAC on South Bay’s individual claim under section 17200 for the assertedly “unlawful” business practice of using the 365/360 method of interest calculation allegedly “without specific contractual authorization and disclosure.” Indeed, similar to the plaintiff’s breach of contract claim in Chern, South Bay’s individual “unlawfulness” claim based on lack of contractual authorization and disclosure must fail because, as discussed, at the time of entering into the disputed loan agreements South Bay knew, understood, agreed and expected that GMAC would use the 365/360 method. (15 Cal.3d at pp. 873-874.) Moreover, this case is factually distinguishable from Chern in that GMAC entered into transactions not with members of the general public but instead with financially sophisticated dealership South Bay, provided notice of its use of the 365/360 method before South Bay requested the disputed loans, and did not quote an interest rate on any of those loans until after South Bay had learned GMAC’s rates were annualized over a 360-day year.
With respect to its individual claim against GMAC under section 17200, South Bay’s reliance on Fletcher, supra, 23 Cal.3d 442, is also unavailing. In Fletcher, the plaintiff borrower on behalf of himself and other similarly situated borrowers sought restitution of sums obtained by the defendant bank through the use of the 365/360 method and damages for breach of contract and violation of section 17200 et seq. (Fletcher; supra, at p. 446.) The Supreme Court concluded that . . although the trial court properly refused to permit plaintiff’s claim for breach of contract to proceed as a class action, the trial court, resting on an erroneous legal assumption, improperly refused to permit plaintiff’s claim of an unfair trade practice to proceed as a class action.” {Ibid.) The Supreme Court stated: “In the initial portion of our Chem decision, we held that while a borrower who had no prior knowledge of the 360-day year computation practice might mount a valid breach of contract claim against the bank, plaintiff, who had full knowledge of the meaning of the ‘per annum’ interest rate in the contract provision, could not prevail in such a breach of contract action. Moreover, since plaintiff herself could muster no valid contract claim, we concluded that she could not properly pursue a class action on behalf of those borrowers who did not have knowledge of the banking practice.” {Fletcher, supra, at p. 448.) Hence, although when entering the loan transaction with the defendant bank the plaintiff in Fletcher did not know that interest would be calculated using the 365/360 method, the Supreme Court nonetheless concluded that the trial court acted within its discretion in declining to permit the contract claim to proceed as a class action. {Id. at pp. 448-449.) The Supreme Court stated: “We recognize that proof of each individual borrower’s lack of knowledge may be required to sustain a recovery under the breach of contract theory.” {Id. at p. 446.) Hence, contrary to South Bay’s contention, Fletcher is not inconsistent with the trial court’s holding favoring GMAC on South Bay’s individual claim under section 17200 for the assertedly “unlawful” business practice of using the 365/360 method of interest calculation allegedly “without specific contractual authorization and disclosure.” Indeed, in Fletcher,
the Supreme Court effectively reaffirmed the portion of Chem, supra, 15 Cal.3d 866, that a plaintiff, such as South Bay, with full knowledge of the meaning of the per annum interest rate in a contract provision, may not prevail in a breach of contract action. (Fletcher, supra, at pp. 446, 448.) As discussed, although styled as a cause of action under section 17200, the crux of South’s Bay’s individual unlawfulness claim against GMAC was the alleged lack of contractual authorization and disclosure, a claim that must fail because at the time of entering into the disputed loan agreements South Bay knew, understood, agreed and expected that GMAC would use the 365/360 method. (Fletcher, supra, at pp. 446, 448.)
In sum, the trial court properly concluded South Bay did not establish that GMAC engaged in an unlawful business practice under section 17200.
(c)
No Unfair Business Practice
“The ‘unfair’ standard, the second prong of section 17200” offers “an independent basis for relief.” (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1103.) “This standard is intentionally broad, thus allowing courts maximum discretion to prohibit new schemes to defraud. [Citation.] The test of whether a business practice is unfair ‘involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim . . . .’” (Id. at pp. 1103-1104; see also Saunders v. Superior Court, supra, 27 Cal.App.4th at p. 839; Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740 [162 Cal.Rptr. 543].) In People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509 [206 Cal.Rptr. 164, 53 A.L.R.4th 661], we concluded “. . . an ‘unfair’ business practice occurs when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Id. at p. 530.) “In general the ‘unfairness’ prong ‘has been used to enjoin deceptive or sharp practices. . . .”’ (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 970 [69 Cal.Rptr.2d 623].) However, the “unfairness” prong of section 17200 “does not give the courts a general license to review the fairness of contracts . . . .” (Samura v. Kaiser Foundation Health Plan, Inc., supra, 17 Cal.App.4th at p. 1299, fn. 6.)
South Bay characterizes as “unfair” GMAC’s asserted systematic breaching of the wholesale security agreement to the injury of borrowers by using the term “per annum” in such agreement, quoting annual interest rates, and then using without disclosure the 365/360 method to charge higher effective interest rates. (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1104.) However, as discussed, substantial evidence indicated South Bay entered into the disputed loan agreements knowing, understanding, agreeing and expecting that GMAC would use the 365/360 method to calculate interest. As also discussed, South Bay’s expert Ross acknowledged there was nothing inappropriate about a lender calculating interest under the 365/360 method if the borrower was made aware of such practice. Thus, based on this evidentiary record, the trial court properly rejected the theory alleged in South Bay’s complaint that without contractual authorization or disclosure GMAC quoted one interest rate on its wholesale floor plan loans and then charged another rate. Instead, the court concluded GMAC’s use of the 365/360 method to calculate interest in the context of its wholesale floor plan financing was contractually authorized and did not violate section 17200. Specifically, the court found GMAC’s use of the 365/360 method was not “unfair” as to South Bay. Further, as noted, evidence indicated the 365/360 method of interest calculation was widely used, particularly in wholesale floor plan financing and expected by dealer-. ships. Moreover, the 365/360 method was a reasonable business practice because GMAC and General Motors provided interest credits to dealerships using such method, use of the method promoted efficiency for dealerships by permitting easy comparison of rates, and dealerships were not harmed by its use since the competitive nature of the market ensured they would pay no more in interest than if another interest calculation method were used. Hence, any harm to dealerships from use of the 365/360 method was outweighed by GMAC’s reasons, justification and motives for its use. (State Farm Fire & Casualty Co. v. Superior Court, supra, at pp. 1103-1104; Saunders v. Superior Court, supra, 27 Cal.App.4th at p. 839; Motors, Inc. v. Times Mirror Co., supra, 102 Cal.App.3d at p. 740.)
In sum, the trial court properly concluded South Bay did not establish that GMAC engaged in an unfair business practice under section 17200.
(d)
No Fraudulent Business Practice
The “ ‘fraud’ contemplated by section 17200’s third prong bears little resemblance to common law fraud or deception. The test is whether the public is likely to be deceived.” (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1105, citing Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211.) Stated otherwise, “ ‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘ “are likely to be deceived.” ’ ” (Saunders v. Superior Court, supra, 27 Cal.App.4th at p. 839, citing Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267; see also Rubin v. Green (1993) 4 Cal.4th 1187, 1200-1201 [17 Cal.Rptr.2d 828, 847 P.2d 1044].) “This means that a section 17200 violation, unlike common law fraud, can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage.” (State Farm Fire & Casualty Co. v. Superior Court, supra, at p. 1105; see also Klein v. Earth Elements, Inc., supra, 59 Cal.App.4th at p. 970.)
South Bay contends it demonstrated GMAC engaged in a business practice likely to deceive the public. Specifically, South Bay characterizes as “fraudulent as a matter of law” GMAC’s allegedly deceptive practices of using “per annum” language in its wholesale security agreement, quoting annual interest rates without disclosing its use of the 365/360 method of interest calculation, and thus charging annual rates effectively higher than its quoted rates. (Chern, supra, 15 Cal.3d at p. 876.) However, as discussed, Chern and its progeny Fletcher, supra, 23 Cal.3d 442, are factually distinguishable from the situation here. Indeed, each of those cases contemplates section 17200 may not be violated under circumstances where, as here, both the lender and borrower know, understand, agree and expect that the 365/360 method of interest calculation will be used. {Fletcher, supra, at p. 446; Chem, supra, at pp. 873-875.) On this evidentiary record, the trial court properly rejected South Bay’s contention that the absence of an explicit disclosure of the interest calculation method in the parties’ wholesale security agreement compelled a finding GMAC was liable as a matter of law.
As discussed, substantial evidence indicated the parties’ wholesale floor plan financing contractual relationship consisted not only of the terms of their wholesale security agreement but also included terms specified in the parties’ oral and written communications, terms contained in various other written materials GMAC provided to South Bay, and terms established through the parties’ course of dealing. As also discussed, South Bay’s expert Ross acknowledged there was nothing inappropriate about a lender calculating interest under the 365/360 method if the borrower was made aware of such practice. Evidence indicated South Bay entered into the disputed loan agreements knowing, understanding, agreeing and expecting that GMAC would use the 365/360 method to calculate interest. Thus, based on this evidentiary record, the trial court properly rejected the theory alleged in South Bay’s complaint that without contractual authorization or disclosure GMAC quoted one interest rate on its wholesale floor plan loans and then charged another rate. The court then properly concluded GMAC’s use of the 365/360 method to calculate interest in the context of its wholesale floor plan financing was contractually authorized and did not violate section 17200.
In sum, under these circumstances, South Bay did not demonstrate that GMAC engaged in any business practice with respect to use of the 365/360 method of interest calculation likely to deceive South Bay or other members of the intended audience of reasonable GMAC-financed automotive dealerships. {Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 214.) On the contrary, evidence indicated that by various means of disclosure GMAC informed South Bay and other dealerships that it would use the 365/360 method and South Bay, for one, understood accordingly. Hence, on this record the trial court properly found GMAC’s use of the 365/360 method was not “deceptive, misleading or fraudulent” as to South Bay within the meaning of section 17200.
(e)
No Violation of Section 17500
“[Ujnfair, deceptive, untrue or misleading advertising” under section 17500 constitutes the fourth prong of section 17200. As discussed, one theory propounded by South Bay for GMAC’s asserted liability under section 17200’s first prong of “unlawfulness” was that GMAC’s alleged improper use of the 365/360 interest calculation method violated section 17500 under the authority of Fletcher, supra, 23 Cal.3d 442, and Chem, supra, 15 Cal.3d 866. However, as we have explained, those cases are factually distinguishable from this situation where borrower South Bay entered into the disputed loan agreements knowing, understanding, agreeing and expecting that GMAC would use the 365/360 method to calculate interest. Here, GMAC’s use of the 365/360 method was disclosed to South Bay and contractually authorized by South Bay. Under these circumstances, the trial court properly concluded GMAC’s communications to South Bay about interest rates and charges did hot constitute misleading advertising under section 17500.
(f)
Conclusion
With respect to its individual claim against GMAC under section 17200, South Bay did not prove the theory alleged in its complaint that GMAC engaged in a business practice of using the 365/360 method of interest calculation “without specific contractual authorization and disclosure.” Hence, on this evidentiary record the trial court reasonably concluded that GMAC’s use of the 365/360 method as to South Bay was not “unlawful,” “unfair,” “fraudulent,” or in violation of section 17500 within the meaning of section 17200. Thus, the portion of the judgment favoring GMAC on South Bay’s individual claim under section 17200 must be affirmed.
B
South Bay’s Private Attorney General Claim
South Bay launches several attacks against the portion of the judgment granting GMAC’s motion for judgment under Code of Civil Procedure section 631.8 on South Bay’s private attorney general claim under section 17200. South Bay contends the trial court granted such motion without considering deposition evidence submitted by South Bay. South Bay also contends the court denied the motion by proceeding on the assertedly erroneous legal premise that to prevail on its private attorney general claim, South Bay would be required to prove the likelihood of deception with respect to each California dealership obtaining wholesale floor plan financing from GMAC. South Bay further contends the court improperly ignored the remedies of injunction, restitution and disgorgement assertedly available on its private attorney general claim. However, we conclude the court properly granted judgment favoring GMAC on South Bay’s private attorney general claim.
1
Trial Court’s Findings
In granting judgment favoring GMAC on South Bay’s private attorney general claim under section 17200, the trial court determined South Bay failed to meet its evidentiary burden to show that its individual claim should be afforded private attorney general status. Specifically, the court stated South Bay did not offer any evidence to establish that any dealership was likely to be deceived or that GMAC-financed dealerships were similarly situated as to their likelihood of deception. The court concluded “there are numerous and disparate ways that dealerships could come to understand that GMAC uses the 365/360 method either before initiating floor plan financing with GMAC or during the ongoing series of loan transactions with GMAC. In order to determine the likelihood of deception, it would be necessary to hold mini-trials into the sophistication of each dealership’s practice of checking GMAC’s billing statements for accuracy, and the oral, written and implied terms of each loan contract of each dealership. In such circumstances, the representative action plaintiff seeks to bring here is not appropriate and could not be efficiently tried.”
The court further concluded there was no evidentiary basis for restitution, disgorgement or injunctive relief under section 17200 since South Bay did not show “actual deception or likelihood of deception in connection with any of the business practices or transactions at issue.” The court also stated the record afforded no basis for a finding that “any of the interest received by GMAC from California dealerships was ill-gotten or the result of any actual or likely deception.”
The following findings set forth in the court’s statement of decision supported the court’s conclusions:
Each separate wholesale floor plan loan extended to a California automotive dealership by GMAC was governed by the terms of GMAC’s wholesale security agreement with the dealership, terms specified in oral and written communications between GMAC and the dealership’s personnel, terms contained in various other written materials GMAC provided to the dealership, and terms established through the course of dealing between GMAC and the dealership;
GMAC and General Motors provided dealerships with various documents disclosing GMAC’s use of the 365/360 method of interest calculation through explicit statements or implicit examples; those documents included billing statements, guides to billing statements, information about GMAC’s wholesale plan programs, and individualized materials sent from GMAC’s branch offices to selected dealerships; during the 1980’s GMAC provided large groups of dealerships with periodically updated monthly billing statements and guides to those billing statements containing sample billing statements; by reviewing those guides and monthly billing statements received from GMAC, a dealership could determine how GMAC calculated interest on its wholesale floor plan financing; and a GMAC-financed dealership could not check the accuracy of the interest charges on its monthly billing statements without understanding the 365/360 method of interest calculation;
However, the owners and personnel of dealerships varied “in sophistication, backgrounds, experience, financing knowledge, training, and familiarity with interest calculation methods”; further, the dealerships’ numerous separate wholesale floor plan loan agreements did not contain the same terms or language; dealerships did not receive identical materials from GMAC about its interest calculation method; GMAC had separate and different oral discussions with dealerships about its interest calculation method; and dealerships did not always share a similar course of dealing with GMAC; and
References in GMAC’s communications to “per annum” interest rate and to “true interest” were not inconsistent with GMAC’s use of the 365/360 method in the context of its wholesale floor plan financing; and a “reasonable dealership would be less likely to be deceived than a member of the general public in connection with a lender’s use of the 365/360 method based on the ongoing nature of a dealer’s interaction with its lender, the fact that dealers typically employ business staffs that prepare monthly financial statements and review wholesale billing statements, the variety of documents and contexts which would expose a dealership to the 365/360 method, and the common dealership business practices that could not be completed without understanding the method of calculation used by its lender.”
2
Analysis
(a)
Timing of Ruling on South Bay’s Private Attorney General Claim
South Bay contends the trial court prematurely granted GMAC’s motion under Code of Civil Procedure section 631.8 on South Bay’s private attorney general theory before reading South Bay’s deposition designations. South Bay asserts its deposition designations included important evidence by six witnesses including the testimony of Jones, GMAC’s vice-president responsible for the wholesale security agreement, that “per annum” meant the annual cost of debt and he did not know why there was no disclosure of GMAC’s use of the 365/360 method in the wholesale security agreement; and the testimony of McSheffrey, GMAC’s controller’s office’s most knowledgeable person with respect to the wholesale security agreement and monthly billing statements, that she did not know of any document disclosing or authorizing GMAC’s use of the 365/360 method. Asserting deposition designations at trial should be treated as if the deponents were live witnesses (Code Civ. Proc., § 2025, subd. (u)), South Bay claims entitlement to a new trial based on the court’s failure to hear those six deponent/witnesses until after ruling for GMAC on South Bay’s private attorney general claim.
However, on May 27, 1997, when the court heard argument and initially ruled on GMAC’s motion under Code of Civil Procedure section 631.8, South Bay did not object that its deposition designations had not yet been reviewed by the court or otherwise present any argument based on those deposition designations. Hence, South Bay may be deemed to have waived such issue for appeal. (Evid. Code, § 354.) In any event, on July 7, 1997, when entering its statement of decision, the court had received the deposition designations into evidence, reviewed them in detail, and determined that its preliminary ruling favoring GMAC should stand. Indeed, the court began its statement of decision as follows: “Based on the testimony and the evidence received in the trial of this action, the Court finds in favor of defendant [GMAC] and against plaintiff [South Bay] on the issues in plaintiff’s complaint.” Similarly, the court wrote later in its statement of decision: “Based on the evidence presented in plaintiff’s case in chief and pursuant to the standard applicable to GMAC’s § 631.8 motion, the Court finds that South Bay’s claims should not proceed as a private attorney general action.” In the same vein, the judgment entered on July 14, 1997, stated the court granted GMAC’s motion to dismiss South Bay’s private attorney general claim “after hearing all of the evidence presented by South Bay Chevrolet on the complaint and after hearing argument from both parties on GMAC’s motion for judgment . . . .” Moreover, South Bay has not shown any prejudice resulting from the court’s reading South Bay’s deposition designations only after preliminarily ruling in GMAC’s favor on South Bay’s private attorney general claim. Indeed, those deposition designations revealed that McSheffrey identified various examples of disclosure documents and, as noted by the court, Jones indicated the 365/360 interest calculation method was not part of his job.
In sum, South Bay has not established any reversible error with respect to the timing of the trial court’s reading of South Bay’s deposition designations..
(b)
South Bay’s Private Attorney General Claim Was Properly Denied
South Bay contends the trial court proceeded on the assertedly erroneous legal premise that to prevail under section 17200 South Bay was required to prove through “mini-trials” the likelihood of deception with respect to each borrower. South Bay asserts a plaintiff need not prove the likelihood of deception for purposes of the “unlawful” and “unfair” prongs of section 17200. South Bay also asserts that under section 17200 it was not required to identify specific victims (ABC Internal Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1270 [61 Cal.Rptr.2d 112, 931 P.2d 290]; People v. Thomas Shelton Powers, M.D., Inc. (1992) 2 Cal.App.4th 330, 339-344 [3 Cal.Rptr.2d 34]) or submit individualized proof of deception, reliance or injury as to other borrowers (ABC Internal Traders, Inc. v. Matsushita Electric Corp., supra, at pp. 1269-1270; Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267; Fletcher, supra, 23 Cal.3d at pp. 449-454.) However, on this record the court properly concluded South Bay did not meet its burden to establish that GMAC’s financed dealerships were similarly situated as to their likelihood of deception by GMAC’s business practices involving use of the 365/360 method or that any GMAC-financed dealership would likely be deceived by such practices.
As discussed, with respect to its individual claim against GMAC under section 17200, South Bay failed to establish GMAC’s business practices in using the 365/360 method was unlawful, unfair, fraudulent, or in violation of section 17500. In essence, the trial court concluded South Bay did not prove the theory alleged in its complaint that GMAC violated section 17200 by using the 365/360 method to calculate interest owing from South Bay “without specific contractual authorization and disclosure.” The court’s conclusion was supported by substantial evidence that when requesting the disputed wholesale floor plan loans South Bay knew, understood, agreed and expected that GMAC would use the 365/360 method. Like its individual claim, South Bay’s private attorney general claim was based expressly on the theory that GMAC violated section 17200 by using the 365/360 method to calculate interest owing from other California dealerships allegedly “without specific contractual authorization and disclosure.” However, South Bay failed to prove such allegation on either its individual claim or its private attorney general claim.
With respect to South Bay’s private attorney general claim, the evidentiary record indicated GMAC did not engage in uniform disclosure practices about the interest calculation method with all GMAC-financed dealerships; specifically, dealerships did not always share a similar course of dealing with GMAC; GMAC gave dealerships a variety of information about its use of the 365/360 method but not all such dealerships received identical materials; further, GMAC had separate and differing oral discussions with dealerships about its interest calculation method; the dealerships’ numerous separate floor plan agreements with GMAC did not contain the same terms or language; and the dealerships’ levels and types of experience and sophistication differed. The record also contained evidence indicating that, similar to South Bay, other dealerships when requesting loans from GMAC knew, understood, agreed and expected that GMAC would use the 365/360 method of interest calculation. Indeed, acknowledging that various borrowers were more sophisticated than others, South Bay’s expert Ross testified some borrowers understood and expected GMAC’s “per annum” rates to be annualized on a 360-day year. In sum, the evidentiary record showed that there was no uniformity in GMAC’s contacts with GMAC-financed dealerships, but instead numerous disparate ways for those dealerships to come to understand GMAC used the 365/360 method.
Based upon such substantial evidence, the trial court reasonably found nothing to support a conclusion that GMAC-financed California