Sterpka v. The Upper Deck
Filed 11/27/13 Sterpka v. The Upper Deck CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
STEVEN STERPKA,
Plaintiff and Appellant,
v.
THE UPPER DECK COMPANY et al.,
Defendants and Respondents.
D060056
(Super. Ct. No. 37-2009-00100230-
CU-BT-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Lisa A. Foster, Judge. (Retired judge of the San Diego Sup. Ct.) Affirmed.
Law Offices
of Douglas Jaffe and Douglas Jaffe for Plaintiff and Appellant.
The Upper
Deck Company and Brittany A. Hysni for Defendant and Respondent The Upper Deck
Company.
Attlesey |
Storm, LLP, Keith A. Attlesey and Suzanne S. Storm for Defendant and Respondent Collectors
Universe, Inc.
Steven
Sterpka appeals the summary judgment against
him in his lawsuit against The Upper Deck Company (Upper Deck) and Collectors
Universe, Inc. (Collectors). The action
arises from a dispute concerning the authenticity of a Charles Lindbergh
signature which Sterpka obtained when he purchased a case of trading cards from
Upper Deck and Collectors authenticated the signature. Sterpka contends the trial court erred in
granting summary judgment because there are triable issues of fact as to all
causes of action. We disagree and affirm
the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In early
2008, Sterpka read an article in Beckett Magazine that contained elements from
an Upper Deck press release. That
article was about ten rare cards that Upper Deck produced which included a signature
from a notable personality with a strand of their hair. Exchange vouchers for these "Hair Cuts
Signature" cards were randomly inserted into packs of Upper Deck's SP
Legendary Cuts. In June 2008, after
reading the article, Sterpka purchased a case of the SP Legendary Cuts for
approximately $1,500 in hopes of obtaining one of the rare cards.
Sterpka's case included a card that
instructed him to contact Upper Deck to get a Charles Lindbergh Hair Cuts
Signature card. Sterpka contacted Upper
Deck and obtained the Charles Lindbergh card.
The back of the card stated, "Congratulations! You have received a trading card with an
historical strand of Charles Lindbergh's hair, that includes an autograph of
Charles Lindbergh. The memorabilia was
certified to us as belonging to Charles Lindbergh. The cut autograph was independently
authenticated by a third party authenticator.
We hope you enjoy this piece of history, as we continue to keep you as
close as you can get! Enjoy your
memorabilia card!" According to
Upper Deck, it obtained a letter of authenticity in May 2008 from PSA/DNA
Authentication Services (PSA/DNA), a division of Collectors, authenticating the
signature on the Charles Lindbergh Hair Cuts Signature card. The letter stated it served as a "certificate
of authenticity for a/an Charles A. Lindbergh signed index card, which
[Collectors] thoroughly examined.
[¶] Inscription reads 'Sept. 10, 1928'[.]"
Sterpka contacted Beckett to sell the
Charles Lindbergh card through Beckett Select Auctions, a service that lists
notable cards on eBay. As part of
Beckett's procedure to list the card, Sterpka paid Beckett $200 to obtain a
letter of authenticity from James Spence Authentication who opined that the
signature was genuine. Sterpka valued
the card at $10,000, and Beckett listed it for that price on eBay. Sterpka believed $10,000 was an appropriate
value because an Abraham Lincoln Hair Cuts Signature card had recently sold for
nearly $20,000.
After the card was listed on eBay,
Daniel Clemons, an autograph authenticator and consultant to Charles Lindbergh's
daughter, Reeve Lindbergh, contacted Sterpka and eBay and informed them that
the sale of the Charles Lindbergh Hair Cuts Signature card would violate
intellectual property rights because the signature was a forgery. eBay cancelled Sterpka's multiple attempts to
list the card.
Sterpka sent the card to RR Auction
(RR) to authenticate the signature. In
July 2009, RR returned the card to Sterpka with a letter from PSA/DNA disputing
the authenticity of the signature. PSA/DNA
later revoked the opinion in that letter.
Sterpka sued Upper Deck and
Collectors asserting claims against each for fraud, negligent
misrepresentation, negligence, and violation of the Consumers Legal Remedies
Act (CLRA; Civ. Code, § 1750 et seq.).
Upper Deck and Collectors moved for summary judgment or in the
alternative summary adjudication, arguing that Sterpka could not establish at
least one element of each cause of action.
The trial court agreed and entered judgment in favor of Upper Deck and
Collectors.
DISCUSSION
I. General
Legal Principles and Standard of Review
Summary
judgment is properly granted when there is no triable issue of material fact
and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Where the defendant is the moving party, it
must show that a cause of action has no merit by putting forth evidence to show
that either one or more elements of the cause of action, even if separately
pleaded, cannot be established, or that a complete defense exists thereto. (Id.,
subd. (o).) If the defendant meets this
burden, the burden shifts to the plaintiff to establish that a triable issue of
material fact exists. (
decision to grant summary judgment. We
independently determine whether the record supports the trial court's
conclusion that the asserted claims fail as a matter of law, and we are not
bound by the trial court's stated reasoning or rationales. (Prilliman
v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
II. Fraud
and Negligent Misrepresentation Causes of Action
Sterpka
argues the trial court erred in granting summary judgment because Upper Deck
knew or should have known the signature on the Charles Lindbergh card was not
authentic and unreasonably relied on Collectors's letter of authenticity. In regard to Collectors, Sterpka argues
Collectors committed fraud and negligent misrepresentation by improperly
providing a letter of authenticity to Upper Deck, later finding the signature
was not authentic, and failing to disclose to Sterpka that it had issued a
letter of authenticity to Upper Deck regarding the same signature. As we shall explain, we reject Sterpka's
arguments.
" 'The necessary elements of
fraud are: (1) misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud
(i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.' [Citations.]" (Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, capitalization and fn.
omitted.) "The tort of negligent
misrepresentation does not require scienter or intent to defraud. [Citation.]
It encompasses '[t]he assertion, as a fact, of that which is not true,
by one who has no reasonable ground for believing it to be true' [citation],
and '[t]he positive assertion, in a manner not warranted by the information of
the person making it, of that which is not true, though he believes it to be true'
. . . ." (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173–174.) In both causes of action, the plaintiff must prove
actual reliance on the misrepresentation.
(Cadlo v. Owens-Illinois, Inc.
(2004) 125 Cal.App.4th 513, 519.) "[T]he
truth or falsity of the representations must and can only be determined as of
the time when they were relied and acted upon by the [plaintiff]." (United
States Nat'l Bank v. Stiller (1931) 119 Cal.App. 442, 444.)
Here, Upper
Deck submitted facts showing that before it put the Charles Lindbergh Hair Cuts
Signature card in the marketplace and sent it to Sterpka, Collectors
authenticated the signature on it. Upper
Deck believed Collectors was one of the largest authenticators in the trading
card industry. This evidence negated the
intent element of Sterpka's fraud cause of action and showed Upper Deck's
reasonable reliance on the authenticity of the signature. Thus, the burden shifted to Sterpka to show a
triable issue of fact. (
Cal.App.4th 54, 59.)
Sterpka argues fraudulent intent
and unreasonable reliance can be inferred because Upper Deck initially did not
produce documents showing how it obtained the Charles Lindbergh signature and
later provided a purchase order for the signature which resembles an Upper Deck
invoice; Collectors's authenticity letter was issued prior to Upper Deck's
alleged purchase of the signature; and Collectors's letter purported to
authenticate a signature with a date whereas the Hair Cuts Signature card did
not have a date. Fraudulent intent must
often be inferred from underlying circumstances as direct evidence is rarely
available. (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal.App.3d 388, 411–412.) However, " ' "[w]hen
opposition to a motion for summary judgment is based on inferences, those
inferences must be reasonably deducible from the evidence, and not such as are
derived from speculation, conjecture, imagination, or guesswork."
[Citation.]' " (Annod
Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298.) We cannot agree that fraudulent intent in
this case may be inferred from the facts Sterpka presented. Sterpka's arguments are mere conjecture and
do not permit a reasonable inference of fraudulent intent. Thus, Sterpka's fraud cause of action against
Upper Deck fails. Similarly, Sterpka's
negligent misrepresentation claim fails because he has failed to show Upper
Deck acted unreasonably.
Sterpka's fraud and negligent
misrepresentation claims against Collectors also fail. Although Sterpka argues that genuine issues
of material fact exist on these causes of action, Sterpka failed to show he relied
on any statement by Collectors. Indeed, Sterpka
admitted in his deposition that he did not rely on any statements or documents
from anyone at Collectors in deciding whether to purchase the case of SP
Legendary Cuts cards. Sterpka's claims
against Collectors are largely based on Collectors's letter of authenticity to
Upper Deck, the later letter finding the same signature was not authentic, and its
failure to disclose to Sterpka that it had issued a letter of authenticity to
Upper Deck. These facts, even if true,
do not support the necessary element of reliance. Generally, reliance "exists when the
misrepresentation . . . was an immediate cause of the plaintiff's conduct which
altered his or her legal relations, and when without such misrepresentation or
nondisclosure he or she would not, in all reasonable probability, have entered
into the contract or other transaction."
(Alliance Mortgage Co. v. Rothwell,
supra, 10 Cal.4th at p. 1239.) Sterpka has not met his burden to show a
triable issue of fact regarding reliance because none of his arguments
demonstrate that he purchased the case of SP Legendary Cuts cards based on
Collectors's statements.
We conclude the trial court
properly granted summary judgment in favor of Upper Deck and Collectors on the
fraud and negligent misrepresentation claims.
III. Negligence
Causes of Action
Sterpka
argues the trial court erred in granting summary judgment in favor of Upper
Deck and Collectors on his negligence claims.
Those claims were based on allegations that Upper Deck and Collectors
failed to reasonably and properly authenticate the Charles Lindbergh signature.
The elements of a negligence action
are duty, breach of duty, proximate cause and damages. (Paz v.
State of California (2000) 22 Cal.4th 550, 559.) " '[N]egligence is conduct which falls below the
standard established by law for the protection of others against unreasonable
risk of harm.' [Citation.] Thus, as a general proposition one 'is
required to exercise the care that a person of ordinary prudence would exercise
under the circumstances.' "
(Flowers
v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997, fn.
omitted.)
Here, before Upper Deck put the
Charles Lindbergh Hair Cuts Signature card in the marketplace and sent it to
Sterpka, Upper Deck authenticated the signature by sending it to
Collectors. Upper Deck believed
Collectors was one of the largest authenticators in the trading card
industry. Based on Collectors's letter
of authenticity, Upper Deck believed the Charles Lindbergh signature was
authentic. Sterpka has not produced
evidence demonstrating that Upper Deck's acts were unreasonable. Thus, his negligence claim against Upper Deck
fails.
Similarly, Sterpka has not shown
that Collectors failed to exercise the degree of care and diligence which would
be exercised by persons of reasonable prudence under the same circumstances
when it authenticated the signature. The
evidence reveals an ongoing dispute regarding the authenticity of the
signature. At least one authentication
service other than Collectors found the signature was genuine. Evidence that Collectors issued a second
letter stating the signature was not authentic and that Clemons informed
Sterpka the signature was a forgery is not sufficient to show Collectors was
negligent. These facts merely reveal a
mistake and dispute regarding the signature's validity. Without some evidence that Collectors acted
unreasonably, Sterpka cannot prove negligence.
IV. CLRA
Causes of Action
Sterpka
argues the trial court erred in granting summary judgment because triable
issues of material fact existed on his CLRA claims. Upper Deck and Collectors contend Sterpka
cannot maintain claims under the CLRA because he was not a "consumer"
who purchased "goods" as defined by the CLRA.
"The
Legislature enacted the CLRA in 1970 to provide individual consumers with a
remedy against merchants employing certain deceptive practices in connection
with the sale of goods or services, noting the difficult[y] consumers faced
proving a fraud claim. [Citation.] The purpose of the statutory scheme is 'to
protect consumers against unfair and deceptive business practices and to
provide efficient and economical procedures to secure such protection.' [Citation.] The Legislature intended the CLRA to be 'liberally
construed and applied to promote its underlying purposes, which are to protect
consumers against unfair and deceptive business practices and to provide
efficient and economical procedures to secure such protection.' [Citation.] The CLRA sets forth 24 proscribed 'unfair
methods of competition and unfair or deceptive acts or practices.' " (Nelson
v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021.)
Under the
CLRA, " '[c]onsumer'
means an individual who seeks or acquires, by purchase or lease, any goods or
services for personal, family, or
household purposes." (Civ.
Code, § 1761, subd. (d), italics added.) Similarly, " '[g]oods' means tangible chattels bought or leased
for use primarily for personal, family,
or household purposes, including certificates or coupons exchangeable for
these goods . . . ." (
Here,
Sterpka purchased a case of the SP Legendary Cuts cards in hopes of obtaining
one of the rare Hair Cuts Signature cards.
He considered the cards to be valuable and intended to sell the Hair Cuts
Signature card if he obtained one.
Shortly after receiving the Charles Lindbergh card, Sterpka contacted
Beckett to sell the card through Beckett Select Auctions. Sterpka also sold approximately two dozen
other cards from his case of SP Legendary Cuts cards.
Sterpka does not cite to any
evidence disputing that he intended to sell the Hair Cuts Signature card for a
profit if he obtained one. Instead, he
claims he is a "consumer" for purposes of the CLRA because "he
was not (nor has he even been) in the business of buying and selling
memorabilia" and "[c]ard collecting is [his] hobby." While Sterpka's claims may be true, they do
not change the fact that in this case, he did not intend to obtain the Hair Cuts
Signature card for "personal, family, or household" purposes. (Civ. Code, § 1761, subd. (d).) Instead, his intent was to obtain the card
for resale. Thus, the trial court
properly granted summary judgment, finding Sterpka was not a "consumer"
under the CLRA.
DISPOSITION
The judgment is affirmed.
Upper Deck and Collectors are entitled to their costs on appeal.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
