In Bardin v. DaimlerChrysler Corp., ___ Cal.App.4th ___ (Feb. 23, 2006), the Court of Appeal (Fourth Appellate District, Division Three) was very concerned about whether the pre- or post-Cel-Tech formulation of "unfair" applied to consumer actions. According to the docket, the Court went out of its way to request supplemental briefs from the parties and amicus briefs from Consumer Attorneys of California on that very question. The opinion discusses both formulations in detail, then lists Cel-Tech's unanswered questions:
Did the Supreme Court limit its holding in Cel-Tech to UCL actions brought by competitors simply because the circumstance of a consumer UCL action was not before it, or because the definition of “unfair” should be different depending on whether the action is brought by a consumer or a competitor? Was the Supreme Court expressing the view that regulation of competitive conduct is contained in existing legislation, but there is no analogous law pertaining to consumers? Should a broader definition of “unfair” apply in consumer actions because consumers require more protection than competitors even though such a distinction between consumers and competitors is not reflected in the language of the statute? Is the Cel-Tech definition of “unfair” too narrow to sufficiently protect consumers? Is the definition of “unfair” applied in Smith [v. State Farm Mut. Auto. Ins. Co.], 93 Cal.App.4th 700 [(2001)] too amorphous in the consumer context, and does it provide “too little guidance to courts and businesses”? (Cel-Tech [Communications, Inc. v. Los Angeles Cellular Tel. Co.], 20 Cal.4th [163,] 184-185 [(1999)].)(Slip op. at 20 (hyperlinks added).) Finally, the Court asked the Legislature or the Supreme Court to help:
(Id.) Ultimately, the Court applied both formulations to the facts before it, and determined (in a very fact-specific analysis) that the plaintiff's complaint did not state a claim for relief under either. The opinion also addresses the UCL's "fraudulent" prong and the CLRA.
In light of the uncertain state of the law regarding the proper definition of “unfair” in the context of consumer UCL actions, we urge the Legislature and the Supreme Court to clarify the scope of the definition of “unfair” under the UCL.