In Progressive West Ins. Co. v. Preciado, ___ F.3d ___ (9th Cir. Mar. 6, 2007), plaintiff Progressive West filed a breach of contract action against one of its insureds. On February 17, 2005, the day before CAFA went into effect, the insured filed a cross-complaint for violation of the UCL. The original cross-complaint pleaded the UCL claim as a non-class, representative action. In approximately August 2006, the insured filed an amended cross-complaint that added formal class allegations to the UCL claim. Thereafter, Progressive West removed the action to federal court, asserting CAFA jurisdiction. The district court granted the insured's motion to remand, and the Ninth Circuit affirmed.
The opinion contains two holdings of note. First, the court held that the filing of the original, representative UCL cross-complaint on February 17, 2005 "commenced" the action for CAFA purposes — not the later filing of the amended cross-complaint with the formal class allegations. Slip op. at 3-4. Second, the court held that even if CAFA applied, Progressive West still could not remove the action to federal court because it was not the "defendant":
CAFA does not alter the longstanding rule ... that precludes plaintiff/cross-defendants from removing class actions to federal court. For this reason, Progressive would lack statutory authority to remove the action pursuant to CAFA even if the action had commenced after CAFA’s effective date.
Slip op. at 9-10. Interestingly, this same lawsuit resulted in a published California Court of Appeal opinion at the end of 2005, Progressive West Ins. Co. v. Superior Court (Preciado), 135 Cal.App.4th 263 (2005), in which the Court of Appeal held that the trial court properly overruled Progressive West's demurrer to the UCL claim. The amended complaint with the class action allegations must have been filed after that opinion issued. My original post on that opinion is here.