In CarMax Auto Superstores California, LLC v. Superior Court, 2014 WL 4533445 (Cal.App. 4 Dist. 2014), the Court of Appeal in an unpublished decision took the extraordinary step of issuing a Peremptory Writ of Mandate directing the trial court to enter summary judgment to a Car Dealer on a consumer’s CLRA claim on the basis that the Car Dealer had offered all that the CLRA required within the CLRA’s 30 day notice period.

In May 2011, Losorelli and his then fiancé, Paredes, purchased a 2007 Chevrolet Tahoe from CarMax in Riverside. They financed the purchase through their credit union. ¶ In June 2011, the California Highway Patrol impounded the vehicle because its vehicle identification number (VIN) was false. Losorelli and Paredes complained to CarMax, but allege they met resistance to their demands for reimbursement and damages, including payment for a rental car. CarMax did make an offer for reimbursement of the purchase price, as well as additional costs, and on July 21, 2011, Car-Max’s legal department sent Losorelli and Paredes a letter asking them to sign a confidential settlement agreement. ¶ Losorelli apparently balked at signing this agreement and retained an attorney. The attorney, claiming only to represent Losorelli, sent CarMax two letters on July 27, 2011, asserting that it was in violation of the Song– Beverly Consumer Warranty Act (§ 1790 et seq.) and the CLRA. It demanded that Car-Max take appropriate corrective action pursuant to section 1782, subdivision (a), within 30 days of the date of the letter. In the other letter, the attorney in-dicated that his client was entitled to full restitution plus incidental and consequential damages, as well as a civil penalty twice the amount of actual damages, attorney fees, costs, and expenses as provided in the statute. This letter demanded a response within three days. ¶ Daniel G. Bloor, CarMax’s assistant general counsel, replied in a letter dated August 2, 2011, ex-pressing regret about the false VIN plate and indicating there were no similarly situated consumers. He also pointed out that Paredes was a co-buyer and that resolution must include her. Bloor stated that CarMax was willing to pay them a full refund that would in-clude a return of the full purchase price, including taxes, title and tags, and any other reasonable, documented costs incurred. Bloor asked that documentation of any additional costs be included. In addition, CarMax offered to pay $500 attorney’s fees to resolve the matter. ¶ Losorelli’s counsel replied on August 5, 2011, that “CarMax ha[d] not complied with the requirements of the CLRA, Magnusson Moss, nor Song Beverly Consumer Warranty Acts.” He indicated that his client would not sign a release for any reason. Counsel also warned that should he not receive a “satisfying offer by today August 5, 2011, we will file a complaint for damages at 4:30 p.m. based upon your client’s letter refusing to comply. Your people have had numerous discussions with my client. To date, every response defers responsibility and completely fails to compensate my client for CarMax’s conduct.” Bloor replied by fax and regular mail on August 5 repeating the offer to resolve the matter with a full refund. ¶ Losorelli filed a complaint on September 7, 2011, seeking damages under the CLRA, among other claims.

The Court of Appeal issued a peremptory writ of mandate directing the trial court to enter summary judgment for the car dealer.

What more could CarMax do than offer a full refund? That is what CarMax asks, and it is a good question. There had been some disagreement over damages, including rental car costs and the confidentiality agreement, before Losorelli retained counsel. However, after he retained counsel and counsel sent the CLRA demand letter, CarMax twice offered to make a full refund not conditioned upon a confidentiality agreement. CarMax’s responses indicated that it was prepared to return the full purchase price, including taxes, title and tags, and other reasonable documented costs. Requesting Losorelli to submit proof of his expenses was not unreasonable, and cannot be construed by itself as disputing his previous claims. Losorelli never responded to CarMax’s offer except to assert it was not sufficient, and certainly never provided documentation of other costs. Furthermore, he has never indicated—either in the trial court or in response to this petition—what a satisfying offer would have been. ¶ While CarMax never tendered payment, section 1782, subdivision (b), requires only that it agree to do so within a reasonable time—and it did so. It was certainly not unreasonable for CarMax to have the co-buyer, Paredes, be part of the deal or have some signs of assent from Losorelli’s camp before proceeding further. ¶ In his responses to this petition, Losorelli reiterates his complaints that CarMax sold him a vehicle to which it did not have title. This fact is undisputed, but not determinative. The crucial question to be deter-mined by the summary adjudication motion is whether CarMax’s response to the CLRA demand letter was an agreement to take appropriate corrective action. We believe it was, and neither Losorelli nor the trial court has explained why it should not be so considered. Since Losorelli presented no contrary evidence on this issue, the trial court erred in finding a triable issue of fact. CarMax’s response complies with the statute as it offers to make Losorelli whole, including any reasonable incidental damages. Losorelli’s response was to file this action; we conclude this CLRA cause of action is barred under subdivision (b) of section 1782. ¶ In his formal answer, Losorelli contends for the first time that the CLR cause of action alleges entitlement to both actual damages and restitution, and that the “notice and offer to correct” provisions of section 1782, subdivision (b), expressly relate only to an action for damages. It is well established that an argument not raised in the trial court will not be considered for the first time on appeal. ( Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.) Even if we were to consider this argument, we would have to reject it. The distinction between a claim for damages and one for restitution is illusory in this case. In his CLRA cause of action, Losorelli is clearly seeking money damages, pleading that he has “sustained and is entitled to actual damages in an amount yet to be determined, including restitution of the amount actually paid or payable under the contract, plus prejudgment interest….” The restitution requested in this claim is included with, and should be considered to be part of the damage request. As set forth in Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 699, “[w]hether restitution is in the form of an equitable remedy or legal remedy, the relief is based on a specific amount found owing. When in law, the plaintiff recovers a sum of money ‘ “to pay for some benefit the defendant had received from him,” ’ [citation] and when in equity, the plaintiff can seek ‘in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession.’ ” Here, Losorelli was simply seeking a sufficient amount of money to compensate for his losses. The notice and correction requirement applies to such claims, whether considered to be an equitable or a legal remedy. The only exemption to the notice requirement is for actions that solely seek injunctive relief (§ 1782, subd. (d))—a remedy that Losorelli does not seek.