I recently came across Bezuszka v. L.A. Models, Inc., 2006 WL 770526 (S.D. N.Y. 2006), decided in March. I find that I disagree with the reasoning of remote federal courts in UCL cases rather often. The Bezuszka decision contains the following bizarre holding: "[T]he question of whether Proposition 64 applies to pending cases is currently pending before the California Supreme Court. .... Regardless, because the Model Plaintiffs clearly allege an injury in fact, that element is irrelevant to our analysis, except to the extent that it precludes them from arguing that they are part of a class of plaintiffs injured by the defendants' alleged unlawful practices." Id. at *16 n.30 (emphasis added). Since when does suffering an injury in fact preclude someone from seeking to represent a class? On the contrary, that injury would mean that the plaintiffs were part of the class they sought to represent.
To make matters worse, the Court then held that the plaintiffs could not state a UCL claim because they "cannot allege a harm to the general public." Id. at *17. The stated rationale for that holding was that the main thrust of the lawsuit was breach of contract. See id. (citing Rosenbluth Int'l, Inc. v. Superior Court, 101 Cal.App.4th 1073 (2002)). However, harm to the general public is not a required element of UCL claim, regardless of whether the action involves a contract dispute. The Rosenbluth court addressed that question only because the plaintiff was not a party to the contracts he sought to enforce, had suffered no injury himself, and sought relief only on behalf of the "general public." An injured UCL plaintiff can choose to proceed on behalf of herself alone (which is what the Bezuska plaintiffs sought to do), or (especially after Prop. 64) on behalf of a class of similarly situated persons. It matters not whether the alleged UCL violation impacted the public at large.
Finally, the Court held that "because restitution would equal any amounts not paid under the contracts, the Model Plaintiffs' UCL claims are superfluous." Id. at *17 n.32. The Court overlooked Business & Professions Code section 17205, which states: "Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state." I am aware of no case holding that a parallel UCL claim cannot, as a matter of law, proceed alongside a breach of contract claim, so long as the UCL's substantive elements are met. The Court exacerbated its problematic reasoning by declining, for equitable reasons, to entertain a UCL claim for injunctive relief—a remedy not normally available for breach of contract. 2006 WL 770526 at *17 n.32.