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COURT OF APPEAL, FOURTH APPELLATE DISTRICT - page 3 / 29

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FACTUAL AND PROCEDURAL BACKGROUND

We base our factual recitation on the properly pleaded material factual allegations of plaintiff's first amended complaint, which is the operative pleading in this matter, and any matters of which we may properly take judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)

Defendant is in the business of towing, impounding and storing vehicles.  On June 17, 2002, defendant towed a vehicle owned by plaintiff and operated by one of its employees, Joel Fitzgerald, from private property located at 2918 B Street in San Diego.  Defendant impounded the vehicle and placed it in one of its storage facilities shortly after 4:30 p.m.  At about 11:30 a.m. the next day, Fitzgerald arrived at defendant's business location to retrieve the vehicle and was presented with an invoice for $126, representing a towing fee of $88 and a storage fee of $38 for two days of storage (billed at $19 per day).  After questioning the storage fees on the invoice, Fitzgerald was told it was defendant's company policy to charge $19 for each calendar day the vehicle was in storage.

Plaintiff sued defendant for fraud (first cause of action), negligence per se (second cause of action), and violations of the UCL (third and fourth causes of action).  In its third cause of action, plaintiff alleged defendant "systematically, routinely, and knowingly failed to comply with the requirements of California Vehicle Code [s]ection 22658[, subdivision] (i)(2) when charging its excessive storage fees," thereby engaging in unfair business practices and unfair competition.  In its fourth cause of action, plaintiff

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