New UCL/CLRA decision: McKell v. Washington Mutual

The Court of Appeal's opinion in McKell v. Washington Mutual, Inc., ___ Cal.App.4th ___ (Sept. 18, 2006) (Second Appellate District, Division One) contains several interesting holdings. The court:

1. applied the ordinary "likely to deceive" formulation of the UCL's "fraudulent" prong (a noteworthy development in light of the ongoing debate over the validity of Pfizer's holding that Prop. 64 abolished that formulation) (slip op. at 10);
2. applied the pre-Cel-Tech formulation of "unfair" (slip op. at 12);
3. declined to apply the "economic abstention doctrine" of Desert Healthcare Dist. v. PacificCare FHP, Inc., 94 Cal.App.4th 781 (2001) (and other cases) to bar the plaintiffs' UCL claim (for more on that doctrine, see this post) (slip op. at 13);
4. held that neither RESPA nor HOLA preempted the plaintiffs' UCL claim (slip op. at 14-30);
5. held that a transaction resulting in the sale of real property does not fall within the scope of the Consumers Legal Remedies Act (Civ. Code §§1750 et seq.) because real property is not a "good or service" (slip op. at 31).

Comments

[ron]

Still waiting for a decision on whether the provision of rental housing falls within the CLRA.

[Kimberly]

Yes, that's an important question. I've heard through the grapevine that the holding that the CLRA does not apply to real property loan transactions is actually a very significant one in the mortgage lending field. I'm told that trial courts have been going both ways on that issue and this is the first Court of Appeal opinion to explicitly address it.