The UCL Practitioner

New federal CLRA decision: In re Late Fee and Over-Limit Fee Litigation

In In re Late Fee and Over-Limit Fee Litigation, 2007 WL 4106353 (N.D. Cal. Nov. 16, 2007), Judge Saundra Brown Armstrong had this to say about the CLRA and whether it applies to credit card transactions:

The plaintiffs' CLRA claim must also be dismissed because, as California appellate courts have held, credit card accounts are not "goods or services" subject to that statute. Berry v. Am. Express Publ'g, Inc., 147 Cal.App. 4th 224 (2007) (discussing Cal. Civ.Code § 1770(a)). Every federal court addressing the issue has followed this precedent. See Van Slyke v. Capital One Bank, 503 F.Supp.2d 1353, 1358 (N.D. Cal. 2007); Augustine v. FIA Card Servs., N.A., 485 F.Supp.2d 1172, 1175 (E.D. Cal. 2007). [FN9]

FN9. The plaintiffs have argued that credit card accounts are "goods or services" as that phrase is used in other statutes, but those diferent statutes are inapposite, especially in light of the particular legislative history of the CLRA making it clear that the legislature intentionally excluded credit. See, e.g., Van Slyke, 503 F.Supp.2d at 1358-59; Augustine, 485 F.Supp.2d at 1175.

Id. at *11.

Supreme Court activity yesterday

Yesterday, the Supreme Court took several actions of note:

1. It disposed of the Gentry v. Superior Court "grant and hold" cases (less than a month after the Court denied rehearing in Gentry and issued its remittitur):

   DUNN v. S.C. (KROGER COMPANY) S148581 B194600 Grant - dismissal/lead case 2/2 Transferred after hold

   FIRCHOW v. CITIBANK S150386 B187081 Grant - dismissal/lead case Dismissed - to CA 2/7

   JONES v. CITIGROUP S141753 G033663 Grant - dismissal/lead case 4/2 Transferred after hold

   KONIG v. U-HAUL COMPANY S149883 B190547 Grant - dismissal/lead case 2/5 Transferred after hold

   MASSIE v. RALPHS GROCERY S153059 B187844 Grant - dismissal/lead case 2/7 Transferred after hold

2. It denied review and depublication in Estrada v. FedEx Ground Package System, no. S156595. The Court of Appeal opinion is Estrada v. FedEx Ground Package System, Inc., 154 Cal.App.4th 1 (2007). My prior post on Estrada, in which I noted the class certification aspects of the opinion, is here.

3. It granted review in Harris v. Superior Court (Liberty Mutual Insurance), no. S156555. In that case, the Court of Appeal reversed the trial court's order decertifying the plaintiff insurance adjusters' misclassification/overtime claims. See Harris v. Superior Court, 154 Cal.App.4th 164 (2007) (review granted). The opinion focused more on the exempt/non-exempt question than on the class certification question, as explained in this post from Wage Law. The Supreme Court's statement of issues on review has not yet been posted.

Court of Appeal refuses "notices of unavailability": Carl v. Superior Court

In an opinion issued last week, the Court of Appeal (Fourth Appellate District, Division Three) held that "a 'notice of unavailability' is not a fileable document under the Rules of Court and will be returned to counsel." Carl v. Superior Court, ___ Cal.App.4th ___ (Nov. 19, 2007) (slip op. 4). While this opinion does not relate strictly to the UCL or class action law, it should be of interest to all practitioners, especially solos. This opinion will probably impact the utility of such notices in the trial courts as well. [via Legal Pad]

UCL hypothetical

A reader wrote to me with the following hypothetical:

Can the usual one-year statue of limitations for legal malpractice (Code of Civil Procedure section 340.6) be elongated to four years if it is pleaded under section 17200?

My answer would be yes. It seems to me that legal malpractice could be pleaded as an "unlawful" prong claim based on the violation of the common-law rule against attorney negligence or perhaps based on violation of the Business & Professions Code provisions governing attorney conduct (e.g., section 6068). However, the remedies for the additional period would be limited to restitution and injunctive relief, so it might not be of much use except perhaps to recover the fees that the client paid to the attorney. Other ideas? Please post them in the comments.

"Fees Account for 'Human Nature': Alameda Courts Delay Some Fees to Keep Class Counsel on Toes"

On the day before Thanksgiving, the Recorder had an article (subscription) discussing a recently-adopted practice in class actions in Alameda County. Apparently, the court is often withholding part of the plaintiffs' attorneys' fees in class action settlements to ensure that the attorneys follow through with the work needed to make sure the class members receive their distributions and to wind up the case. An excerpt:

Earlier this year, Alameda County Superior Court Judge Bonnie Sabraw approved a $275,000 attorneys fee award in a meal and rest-break suit against Ace Cash Express, a check cashing chain. She let plaintiff lawyers collect most of the money in April — but made them wait seven months, until last Friday, to pick up the last $25,000.

Sabraw says she held back a small part of the fee award — as she often does in class action settlements — so plaintiff lawyers would help ensure that as many class members as possible would receive a portion of the settlement funds.

"It's not because anybody did anything wrong," Sabraw said. "It's a little further incentive to make sure all the loose ends are tied up."

The local court's practice of withholding part of class action attorneys fees is a few years old at most, and some attorneys say the strategy isn't common elsewhere.

The article does not explain why the court would assume that the plaintiffs' attorneys are going to breach their ethical duties by abandoning the class members unless they have a financial incentive not to. Such an incentive has not been required or needed in my experience.

List of pending Supreme Court cases updated

I've updated my list of pending Supreme Court cases involving UCL, CLRA, and class action issues. If you are aware of a pending case that is not on the list, please let me know (uclpractitioner@gmail.com).

Happy Thanksgiving!

Best wishes to you and yours for a Happy Thanksgiving and a relaxing long weekend! Posting will resume next week.

New unpublished UCL/CLRA auto defect opinion: Hunter v. General Motors Corp.

Yesterday, in an opinion worthy of publication, the Court of Appeal (Second Appellate District, Division Five) held that the trial court had improperly sustained without leave to amend the defendant's demurrer to the plaintiffs' UCL and CLRA claims. Hunter v. General Motors, no. B190809.

The putative class action challenged the defendant's "development, design, manufacture, and sale of certain vehicles with a defective rear brake system." Slip op. at 2. The opinion addresses, among other things, the Federal Motor Vehicle Safety Standards promulgated by NHTSA. The Safety Standards are often the central focus of non-injury consumer class actions involving safety-related auto defects. This opinion is the first to interpret them in the context of UCL and CLRA claims. For example:

Plaintiffs allege that defendant violated section 1770, subdivision (a)(3) of the CLRA when it knowingly affixed a certification label or tag to each of the subject vehicles falsely stating, “This Vehicle Conforms to All Applicable U.S. Federal Motor Vehicle Safety Standards in Effect on the Date of Manufacture Show[n] above.” Defendant’s defective braking system, plaintiffs allege, violated Federal Motor Vehicle Safety Standards 105 and 135.

....

The trial court ruled that plaintiffs’ Federal Motor Vehicle Safety Standards allegations do not state a basis for a misrepresentation under the CLRA because they fail to allege that “the parking brake systems were not ‘capable’ of holding the subject vehicles stationary for 5 minutes in both a forward and reverse direction on a 30 percent grade, nor is there an allegation that the parking brake system did not hold the vehicle stationary for 5 minutes in both a forward and reverse direction on the grade.” The trial court’s reading of plaintiffs’ allegations is unduly narrow and inconsistent with the mandate to construe the CLRA liberally (§ 1760; Wang v. Massey Chevrolet, supra, 97 Cal.App.4th at p. 869) and to give the complaint a reasonable interpretation (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967). Plaintiffs allege that the label or tag affixed to each of the subject vehicles certifying that the vehicle conformed to all effective Federal Motor Vehicle Safety Standards was false because the parking brake system was defective. Liberally construed, that allegation alleges that the parking brakes could not hold the subject vehicles as required by 49 C.F.R. part 571.105, subpart 5.2.1 and 49 C.F.R. part 571.135, subpart 7.12.3 and, accordingly, is sufficient to establish a misrepresentation under the CLRA.

Also, plaintiffs’ allegations establish a misrepresentation under the CLRA based on 49 C.F.R. part 571.135, subpart 5.6(a) which provides, in pertinent part, “[a]ll mechanical components of the braking system shall be intact and functional.” Plaintiffs allege that defendant knew that “the parking brakes on the Subject Vehicles were defective in that they did not work.” We must accept that allegation as true. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967.) If the parking brakes “did not work,” then they were not “functional” as required by subpart 5.6(a), and a certification that a vehicle equipped with such parking brakes conformed to “All Applicable U.S. Federal Motor Vehicle Safety Standards in Effect on the Date of Manufacture” is an actionable misrepresentation under the CLRA.

Plaintiffs also allege that defendant violated section 1770, subdivisions (a)(5) and (a)(7) of the CLRA when defendant represented that the subject vehicles had characteristics and benefits they did not have and were a particular standard, quality, or grade they were not. In support of their CLRA cause of action, plaintiffs allege that defendant made representations about the quality, safety, and performance of the parking brake system on the subject vehicles while failing to disclose information it knew about the defect in the parking brakes. The list of proscribed practices in section 1770 includes the concealment or suppression of material facts. In the CLRA context, “[f]raud or deceit may consist of the suppression of a fact by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 37; compare with Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255 and Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835 [“although a claim may be stated under the CLRA in terms constituting fraudulent omissions, to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose”].) Plaintiffs’ allegations are sufficient to state a violation of the CLRA based on defendant’s alleged representations about the parking brakes and concealment of the defect. (See Outboard Marine Corp. v. Superior Court, supra, 52 Cal.App.3d at p. 37.)

Slip op. at 12-14 (footnotes omitted). The discussion of the plaintiffs' claims under the UCL's three prongs is equally interesting, including the holding that the plaintiffs "need not wait for a catastrophic event such as brake failure to bring an action under the UCL based on the facts alleged in the fourth amended complaint." Id. at 19. I would not be surprised to see publication requests filed here.

By the way, thanks again to JS, who continues to tirelessly mine the unpublished Court of Appeal opinions and send me the gems like this one.

Recorder article on Fairbanks and the CLRA

An article in Friday's Recorder, "Heller Lawyer Named GC at California Department of Insurance" (subscription), had some interesting commentary by Lisa Perrochet on the Fairbanks case and the CLRA:

In another development Wednesday affecting the insurance industry, the state Supreme Court agreed to hear Fairbanks v. Superior Court, S157001, a case that could limit plaintiffs' ability to challenge insurers under the Consumers Legal Remedies Act.

In August, the 2nd District Court of Appeal held that insurance is neither a "good" nor a "service" as defined and regulated by the CLRA. Since Proposition 64 made private claims under California's Unfair Competition Law more difficult to file, the CLRA has become a more attractive vehicle for consumer lawsuits, some lawyers have suggested.

While the Fairbanks case "is tied very closely to the issue of insurance," said Horvitz & Levy partner Lisa Perrochet, "it may be that [generally] people are focusing more on CLRA claims. This may be a harbinger of more aggressive use of those claims."

The CLRA provides for injunctive relief, punitive damages, attorney fees and other remedies, Perrochet said. The Unfair Insurance Practices Act, by contrast, only allows claims under a more narrow scope of circumstances, and it offers far fewer remedies than the CLRA, she said.

I think the better way to characterize Fairbanks would to say that it might confirm (not limit) plaintiffs' ability to challenge insurers under the CLRA (given the Court of Appeal's holding).

Statement of issue on review in Fairbanks v. Superior Court

The Supreme Court's statement of the issue on review in Fairbanks v. Superior Court, no. S157001 (review granted 11/14/07), is very straightforward:

Is insurance a "good" or a "service" that is subject to the Consumers Legal Remedies Act (Civ. Code, § 1750)?

This is the second CLRA case in three months in which the Supreme Court has granted review. See Meyer v. Sprint Spectrum, no. S153846 (review granted 08/16/07) (discussed in these blog posts).

Supreme Court grants review in CLRA case: Fairbanks v. Superior Court (Farmers New World Life Ins. Co.)

Yesterday, the Supreme Court granted review in Fairbanks v. Superior Court (Farmers New World Life Ins. Co.), no. S157001. In Fairbanks, the Court of Appeal held that insurance was neither a "good" nor a "service" within the meaning of the CLRA, effectively exempting insurers from CLRA coverage. Fairbanks v. Superior Court, 154 Cal.App.4th 435 (2007) (Second Appellate District, Division Three). My original post on Fairbanks is here.

When the Supreme Court's summary of the issues presented on review is available, I will update this post. Meanwhile, here is a copy of the amicus letter of the Foundation for Taxpayer and Consumer Rights in support of review.

New Supreme Court class certification decision: Gattuso v. Harte-Hanks Shoppers, Inc.

Last week, in Gattuso v. Harte-Hanks Shoppers, Inc., ___ Cal.4th ___ (Nov. 5, 2007), the Supreme Court held that the Court of Appeal had improperly affirmed the trial court's order denying class certification of certain Labor Code claims:

The remaining issue is whether the trial court abused its discretion in denying plaintiffs’ motion to certify a plaintiff class defined as all current and former Harte-Hanks outside sales representatives who were not reimbursed for the expenses they incurred in using their own automobiles after January 1, 1998, to discharge their employment duties.

Under Code of Civil Procedure section 382, a class action is permitted “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” Class certification requires both an ascertainable class and a well-defined community of interest among class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326; accord, Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.) Here, the trial court concluded that plaintiffs had established an ascertainable class but also that they had failed to satisfy the “community of interest” requirement.

“The ‘community of interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) The trial court here concluded that plaintiffs had failed to show the existence of predominant questions of law or fact.

The trial court’s ruling on the class certification motion is reviewed for abuse of discretion. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) If supported by substantial evidence, a class certification ruling “generally will not be disturbed ‘unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation].’ ” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; accord, Sav-On Drug Stores, Inc. v. Superior Court, supra, at pp. 326-327.)

In concluding that common issues did not predominate here, the trial court reasoned that plaintiffs’ claims under section 2802 would “turn[] on the determination of two issues (1) whether each individual Harte-Hanks outside sales representative has an agreement about the manner in which he is compensated for expenses, or (2) whether the compensation paid to each individual sales representative is reasonable to compensate for business expenses incurred” and that both determinations would require “an individualized inquiry as to each outside sales representative.”

The class that plaintiffs sought to certify consisted of all Harte-Hanks outside sales representatives “who were not reimbursed for the expenses they incurred in using their own automobiles after January 1, 1998.” We construe this to refer to the Harte-Hanks outside sales representatives who were not separately reimbursed, apart from their base salary and commissions. Not included in the proposed class, therefore, are the relatively few Harte-Hanks outside sales representatives who received automobile expense reimbursement through a separate payment, whether as the result of an individually negotiated compensation package or otherwise. (See fn. 2, ante, at p. 2.)

Harte-Hanks has taken the position that as to the members of this proposed class, it fulfilled its reimbursement obligation under section 2802 by paying them higher commission rates and higher base salaries than it paid to inside sales representatives. As we explained in the previous section, the validity of this claim will turn on the resolution of these questions: (1) Did Harte-Hanks adopt a practice or policy of reimbursing outside sales representatives for automobile expenses by paying them higher commission rates and base salaries than it paid to inside sales representatives? (2) If so, did it establish a method to apportion the enhanced compensation payments between compensation for labor performed and expense reimbursement? (3) If so, was the amount paid for expense reimbursement sufficient to fully reimburse the employees for the automobile expenses they reasonably and necessarily incurred? Neither the trial court nor the Court of Appeal framed the class certification issue in that way, and so neither court considered whether these inquiries are capable of resolution on a class-wide basis. Accordingly, the class certification issue is to be reconsidered upon remand.

Slip op. at 24-26.

Welcome, Bridgeport seminar attendees!

My husband, Sunny S. Huo, told me that he mentioned my blog during his presentation at the Bridgeport class action conference in Orange County yesterday. If you attended the conference and are visiting this site for the first time, welcome! Feel free to stay a while, take a look around, make yourself at home.

New unpublished UCL "injury in fact" opinion: Freeman v. Mattress Gallery

Yesterday, the Court of Appeal (Fourth Appellate District, Division Two) handed down an unpublished opinion, Freeman v. Mattress Gallery, no. E039614. The unpublished opinion warrants comment because of its summary of recent case law construing Prop. 64's "injury in fact" language, which concludes with this paragraph:

[C]ases published since the most recent amendments to Business and Professions Code sections 17204 and 17535 have concluded, either directly or through implication, that in order to have standing under those sections a plaintiff must allege either (1) that money was expended by the plaintiff due to the defendant's acts of unfair competition (Aron, supra, 143 Cal.App.4th at pp. 802-803; R & B Auto Center, Inc v. Farmers Group, Inc., supra, 140 Cal.App.4th at p. 360; Monarch Plumbing Co. v. Ranger Ins. Co. (E.D.Cal., Sept. 25, 2006, No. Civ. S-06-1357) 2006 U.S.Dist. Lexis 68850, [p. 20]; Witriol v. LexisNexis Group (N.D.Cal., Feb. 10, 2006, No. C05-02392) 2006 U.S.Dist. Lexis 26670, [pp. 18-19]; Southern Cal. Housing v. Los Feliz Towers Homeow. (C.D.Cal. 2005) 426 F.Supp.2d 1061, 1069; Laster v. T-Mobile USA, Inc. (S.D.Cal. 2005) 407 F.Supp.2d 1181, 1194), (2) that money or property was lost or suffered a diminution in value (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 716 (Overstock.com, Inc.); Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1240, 1262), or (3) that plaintiff was denied money to which plaintiff had a cognizable claim (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 269-270, 285, fn. 5; Filiti v. USAA Casualty Ins. Co. (E.D.Cal., June 20, 2007, No. Civ. S-06-2694) 2007 U.S.Dist. Lexis 44691, [p. 6]; Starr-Gordon v. Mass. Mut. Life Ins. Co. (E.D.Cal., Nov. 7, 2006, No. Civ. S-03-68) 2006 U.S.Dist. Lexis 83110, [pp.1, 18-19]).

Slip op. at 15-16. What's also very interesting is that the Court of Appeal held that the plaintiff's allegation that he suffered "loss of the cost of gasoline and accompanying wear and tear on his vehicle" when he drove to the defendant's store in response to the defendant's "bait and switch" advertisement -- but then didn't buy anything -- constituted "injury in fact" and "loss of money or property." Id. at 16-17. The Court of Appeal reversed the order granting the defendant's motion for judgment on the pleadings as to the UCL claim without leave to amend. Id. The opinion does not go on to discuss whether the plaintiff in this case would be able to recover restitution. Injunctive relief would likely be available if the defendant was still running the misleading advertisement. The Court of Appeal's affirmance of the order striking the class allegations (id. at 21-25), however, complicates this further.

A lengthy dissenting opinion disagrees with the majority's holding, concluding, in effect, that to qualify as "injury in fact," the monetary loss must also be recoverable as "restitution":

In order to effectuate the statute's purpose, I conclude that a mere loss, monetary or otherwise, is not enough to confer standing. When a court orders restitution, it orders the defendant to give up his gains to the claimant, as opposed to compensating the claimant for his or her loss. To satisfy the section 17204 "injury in fact" standing requirement, regardless of whether the relief sought is court-ordered restitution or an injunction, the loss suffered must be recoverable. Damages are not recoverable under the UCL (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148) and they should not be sufficient to confer standing. This requirement, without going so far as to imply a transaction is necessary, prescribes that there be at minimum an interaction between the parties in which not only a loss but a gain results.

Slip op., dissent at 9. I am not aware of any California Court of Appeal opinions that hold this, but there is one federal ruling that does. Walker v. USAA Casualty Ins. Co., 474 F.Supp.2d 1168 (E.D. Cal. 2007). This argument has always seemed to me contrary to the language of Prop. 64.

The Freeman decision also appears to conflict with another case in which the Supreme Court recently granted review, Meyer v. Sprint Spectrum L.P., 150 Cal.App.4th 1136 (2007) (review granted 08/16/07, no. S153846). There, the Court of Appeal held that the plaintiffs could not maintain a CLRA claim against a defendant who merely included an unconscionable provision in its contract, if that provision had not been enforced against them to their detriment. In the unpublished Freeman decision, however, the Court of Appeal said:

The trial court also sustained the demurrer to the CLRA cause of action based upon the failure of the complaint to allege that Freeman suffered any damage as required by Civil Code section 1780, subdivision (a). As indicated above, our Supreme Court has interpreted Civil Code section 1780 to state that in order to have standing to bring an action for violation of the CLRA, all a plaintiff need allege is that the defendant violated a provision of Civil Code section 1770. (Kagan, supra, 35 Cal.3d at p. 593.) The first amended complaint alleges that Defendants violated Civil Code section 1770, subdivision (a)(3), (5), (7), (9), (10), and (13). Hence, for the reasons stated above, the allegations of the complaint are sufficient to establish Freeman's standing to pursue injunctive relief for violation of the CLRA.

Slip op. at 20. This is precisely the opposite of what the Court of Appeal held in Meyer, also citing Kagan. The dissent had this to add on this point:

Although the California Supreme Court in Kagan stated that suffering "any damage" includes the infringement of any legal right as defined by Civil Code section 1770 (Kagan, supra, 35 Cal.3d at p. 593), I would find that there is still room for debate as to what type of damage is sufficient to confer standing. While plaintiffs do not have to allege monetary loss to have standing under the CLRA, they must suffer some damage as a result of defendant's conduct. In other words, despite the fact that a plaintiff has alleged a violation of the CLRA, which, according to Kagan, would be sufficient to confer standing, the fact that he or she did not sustain any tangible loss precludes him or her from bringing claims. Thus, in my opinion, damage requires something more than a mere allegation of an infringement upon a right protected by Civil Code section 1770.

....

By allowing a plaintiff who alleges unfair business practices to secure standing under the CLRA, we begin down a slippery slope. The California Supreme Court in Kagan seems to have obliterated the meaning of the phrase "suffers any damage as a result of" in the CLRA standing requirements. (Kagan, supra, 35 Cal.3d at pp. 590, 593; Civ. Code, § 1780, subd. (a).) In so doing, our high court has inhibited the judiciary from applying a meaningful limit on the damage and causation requirements of the CLRA. Because alleging a violation, suffering damage, and alleging causation have all been rolled into one requirement (Kagan, supra, 35 Cal.3d at p. 593), courts are left asking, "Is there any limit on the damages that are sufficient to confer standing under the CLRA?" If gas money is sufficient, then why not wear and tear on one's tires? What about loss of time? Why not something as intangible as an alleged violation of Civil Code section 1770? The term "any damage" admittedly sounds limitless. However, if a court is forced to allow a mere allegation of unfair business practices to satisfy the "any damage" standing requirement of the CLRA, the judiciary of this state should brace itself for the imminent flood of litigation. At some point, the maxim of "the law disregards trifles" must be applied to limit the "any damage" requirement of the CLRA. (Harris v. Time, Inc. (1987) 191 Cal.App.3d 449, 458 [holding that a suit for damages based on being forced to open junk mail is frivolous litigation and not a sufficient cause of action].)

Slip op., dissent at 11-12, 13.

In sum, this is a very interesting unpublished opinion. Thanks to the blog reader who emailed me to bring it to my attention.

Bridgeport 2007 Class Action Litigation Conference

For those of you in Orange County, Bridgeport Continuing Education will present its "2007 Class Action Litigation Conference" tomorrow, November 9, 2007, from 9:00 to 4:30 at the Westin South Coast Plaza Hotel in Costa Mesa. My husband, class action attorney Sunny S. Huo of Severson & Werson, is one of the speakers (he will address recent developments surrounding class certification of UCL and CLRA claims) and I hope that some of you might be able to attend!

"An isolated case: The fall of a renowned class-action lawyer isn't evidence for curtailing such lawsuits"

On Wednesday, the Los Angeles Times ran an editorial pointing out that finding one bad apple in the barrel doesn't meant there aren't plenty of good, shiny red ones left:

Famous -- or make that infamous -- class-action attorney William S. Lerach pleaded guilty Monday to one count of conspiracy, admitting his role in a $11.3-million kickback scandal that has upended his former law firm, the pathbreaking shareholder advocacy firm of Milberg Weiss.

As part of his plea, Lerach will pay $8 million to the federal government, and could spend up to two years in prison. Responding to news of the deal, tort reform advocates seized the easy opportunity to make sport of Lerach's downfall. But for those tempted to argue that his crimes make the case for curtailing class-action suits sharply, we'd like to offer the objection that such an argument overstates the evidence. Paying plaintiffs to sue is illegal and should be. Zealously representing injured clients is not and shouldn't be.

To the contrary, it's a necessary calling that benefits victims and society. ....

.... The best outcome of Lerach's fall wouldn't be the demise or even the curtailing of the class-action lawsuit. It would be weeding out lawyers who abuse the system. Such action would assure that legitimate class-action suits get their fair hearing in court.

[Via How Appealing]

Rehearing denied in Gentry

I reported a couple of weeks ago that a rehearing petition had been filed in Gentry and that the Supreme Court had given itself an extension of time through November 28 to rule on it. They didn't need that much extra time after all. On Wednesday, October 31, they denied the rehearing petition and the clerk issued the remittitur. The three dissenting justices (Baxter, Chin and Corrigan) voted to grant rehearing. [Via Storm's California Employment Law]

UCL/CLRA preemption case set for oral argument: Farm Raised Salmon Cases

The Supreme Court announced last week that it would hear oral argument in Farm Raised Salmon Cases, no. S147171, on Tuesday, December 4, 2007 at 9:00 a.m. in Los Angeles. In that case, the Court of Appeal held that the federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.) preempted the plaintiffs' UCL and CLRA claims. Farm Raised Salmon Cases, 142 Cal.App.4th 805 (2006). My two prior posts on this case are here and here. If anyone attends the argument, I would be glad to receive a report.