In O'Brien v. Camisasca Automotive Manufacturing, Inc., ___ Cal.App.4th ___ (Mar 27, 2008), the Court of Appeal (Fourth Second Appellate District, Division Three) affirmed summary judgment in the defendant's favor, holding that the plaintiff lacked standing to assert UCL or CLRA claims because he did not suffer injury in fact as a result of the defendant's alleged misconduct. The suit challenged the defendant's purported mislabeling of its products as "Made in the U.S.A.," even though no such representation appeared in the catalog from which the plaintiff ordered the product, so the plaintiff had not seen any such label before purchasing the product and could not have relied on it in making the purchase. The tone of the opinion suggests that the Court of Appeal found the case particularly unpalatable. It would be better for the profession and for litigants if such cases were not filed at all. Thanks to the readers who emailed me about this new decision.
Thanks to all those who attended the CAOC's annual Tahoe Ski Seminar, at which I spoke last Friday. As promised, here is a copy of my powerpoint presentation from the seminar: "Update on Section 17200" (pdf). For those who attended, it turns out that the powerpoint was included on the CD-ROM of materials after all.
I must say, I really enjoyed the other presenters on the "Quick Hits: A to Z" panel. For example, although I've never practiced in the area, Deborah Schweizer's presentation on asbestos and mesothelioma cases was fascinating. Her passion for the subject and for helping her clients was palpable. Now I know who to refer these cases to if any ever come through my door.
On a related note, the Supreme Court is currently considering Vasquez v. State of California, no. S143710 (review granted 08/16/06), in which the issue on review is as follows:
Does the rule that, in order to receive attorney fees under Code of Civil Procedure section 1021.5, the plaintiff must first reasonably attempt to settle the matter short of litigation, apply to [cases other than catalyst theory cases]? (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 557; Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966-967.)
The Court of Appeal determined that the party opposing the fee award waived the issue by not raising it below. Vasquez v. State of California, 138 Cal.App.4th 550 (2006) (Fourth Appellate District, Division Two) (slip op. at 18-19).
In Lussier v. Dollar Tree Stores, Inc., ___ F.3d ___ (9th Cir. Mar. 7, 2008), the defendant removed the case under CAFA. The district court granted plaintiffs' motion to remand but denied their motion for attorneys' fees. Plaintiffs appealed. The Ninth Circuit affirmed, holding that in the early period after CAFA went into effect, when an action was "commenced" for CAFA removal purposes was an unsettled question. Therefore, the defendant's arguments in support of removal were not objectively unreasonable (even though the arguments "were losers"). Slip op. at 2208. [Via Federal Civil Practice Bulletin]
In Bell, the Court of Appeal (Second Appellate District, Division Three) affirmed in part and reversed in part the trial court's order denying certification of meal period and rest break, off-the-clock, and other wage and hour claims. Bell v. Superior Court (H.F. Cox, Inc.), 158 Cal.App.4th 147 (2007). My original post on the decision is here. The Supreme Court is also considering two depublication requests, one of which was filed by yours truly.
This Friday, March 28, I will be speaking at the CAOC College of Trial Arts' annual Tahoe Ski Seminar at Harveys Lake Tahoe in Stateline, Nevada. I will be one of the speakers on Track 2: "Quick Hits – What You Need To Stay Current From A to Z." My segment will cover the basics of the UCL and the most recent developments in the case law. Registration for the event is still open.
Also, a belated thanks to everyone who attended CAOC's annual class action seminar, "Class Actions From the Plaintiffs' Perspective," on March 5th in San Francisco. I thought it was a great seminar and I enjoyed meeting everyone who came up and introduced themselves. Here is a copy of my powerpoint presentation from the seminar: "Discovery Techniques in Class Action Cases" (pdf).
In Salazar v. Avis Budget Group, Inc., 2007 WL 2990281 (S.D. Cal. Oct. 10, 2007), a federal district court applied the rules outlined in Pioneer Electronics and ordered the defendant to disclose the class members' contact information after an “opt-out” notice was given. Foreshadowing the Court of Appeal's ruling in CashCall, Inc. v. Superior Court, 159 Cal.App.4th 273 (2008), Magistrate Judge McCurine observed that “the minimal information Plaintiff requests is indeed contemplated under the Federal Rules of Civil Procedure … as basic to the discovery process.” Id. at *2. (See this prior blog post for more on CashCall.) He also expressed skepticism about the employer-defendant's professed solicitude for the class members' privacy rights, observing that its conduct suggested that its "concern about the privacy rights of the potential class members is actually driven more by [its own] self-interest." Id. Finally, he noted the importance of class actions generally (as did the Supreme Court in Pioneer Electronics): "[C]lass action lawsuits can serve a valuable social function in addressing the rights of the public. The voice of a class rings more loudly and garners more attention than a single voice."
In Buller v. Sutter Health, ___ Cal.App.4th ___ (Mar. 5, 2008), the plaintiff challenged the defendant's failure to disclose its practice of providing discounts, on request, to customers who timely paid their bills in full. This practice was "fraudulent" and "unfair" under the UCL, the plaintiff claimed, because the defendant did not disclose the practice and did nothing that "'would lead a reasonable consumer ... to seek the discount, or discern that the prompt-pay discount is available to all who pay promptly.'" Slip op. at 2. The Court of Appeal (First Appellate District, Division One) held that the trial court correctly sustained the defendant's demurrer to the plaintiff's UCL claim without leave to amend.
The most unfortunate part of this opinion is its discussion of the UCL's "fraudulent" prong. According to the opinion, "it appears settled that 'Absent a duty to disclose, the failure to do so does not support a claim under the fraudulent prong of the UCL.' (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1557 [62 Cal.Rptr.3d 177] [failure to disclose detailed listings or breakdowns of specific escrow charges comprising transfer or document fees did not violate the UCL].) This is because a consumer is not 'likely to be deceived' by the omission of a fact that was not required to be disclosed in the first place." Slip op. at 5. The opinion goes on to explain that the alleged nondisclosure was not actionable because "[consumers] in [plaintiff's] position are not likely to be operating under the expectation that they are entitled to a discount." Slip op. at 5-6 (citing Daugherty v. American Honda Motor Co., 144 Cal.App.4th 824 (2006); Bardin v. DaimlerChrysler Corp., 136 Cal.App.4th 1255 (2006)).
I would not call it "settled law" that a "duty to disclose" analysis has any place in UCL jurisprudence. The first case to use "duty to disclose" language in discussing a UCL claim is Daugherty, decided on October 31, 2006, less than 18 months ago. What the Buller opinion does not acknowledge is that nondisclosures are actionable if the concealed information would be material to a reasonable consumer. See, e.g., Massachusetts Mutual Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1292 (2002) (whether the concealed information “should have been disclosed given the characteristics” of the transaction); see alsoDay v. AT&T Corp., 63 Cal.App.4th 325, 333 (1998) (“failure to disclose other relevant information”); Podolsky v. First Healthcare Corp., 50 Cal.App.4th 632, 651 (1996) (failure to disclose “all the pertinent facts”); Schnall v. Hertz Corp., 78 Cal.App.4th 1144, 1164 (2001) (concealment of information “relevant to the … decision” faced by the consumer). Perhaps the outcome in Buller would have been the same under that standard. Nonetheless, the settled decisions do not use "duty to disclose" terminology.
Incidentally, the Buller opinion applied the pre-Prop. 64 "likely to deceive" formulation of the "fraudulent" prong, rather than requiring proof of actual reliance. Slip op. at 5-6.
The Court then turned to the "unfair" prong, noting the split in authority regarding whether the pre- or post-Cel-Tech formulation applies. The Court resolved the matter thus: "[A]s we have noted in prior opinions, '[t]his court ... has followed the line of authority that ... requires the allegedly unfair business practice be "tethered" to a legislatively declared policy or has some actual or threatened impact on competition.' (Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1239–1240 [60 Cal.Rptr.3d 631], citing to Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 853–854 [128 Cal.Rptr.2d 389].)" Slip op. at 10-11. "[Plaintiff] makes no argument on appeal that his allegations are directly connected to any legislatively declared policy or threatened competition [and] has given us no reason to depart from our prior holdings in Belton and Gregory ...." Id. at 11.
The concluding paragraph of the analysis section shows that the Court simply did not think this was a good case:
Finally, we note that it is fairly common for consumers to ask for and receive discounts on products and services. The amount of these discounts may vary depending on many factors. Arguably, requiring a business to state a discount on its initial invoice runs counter to the purpose of having discretionary discounts in the first place. Indeed, taken to their logical conclusion, appellant’s arguments would effectively require a business to disclose all discretionary discounts it might offer. While we sympathize with appellant’s frustration over his failure to benefit from respondents’ discount policy, when viewed from the standpoint of consumers in general we believe respondents’ practice is beneficial rather than harmful, inasmuch as they apparently are not required to offer privately insured patients any discounts whatsoever.
This case got lost in the blog pile for a few weeks. In Dell, Inc. v. Superior Court (Mohan), ___ Cal.App.4th ___ (Jan. 31, 2008), the Court of Appeal (First Appellate District, Division Four) addressed a UCL "unlawful" prong claim. Plaintiffs alleged that the defendants violated certain Revenue & Taxation Code provisions by collecting sales and use taxes on optional service contracts sold with computers (which, in turn, violated the UCL). The trial court conducted a stipulated bench trial on the discrete issue of whether sales of the service contracts were subject to sales or use tax. The trial court determined that they were not, and the Court of Appeal agreed.
Today's Recorder reports on a $15.6 million jury verdict in a case brought under the Unfair Practices Act (Bus. & Prof. Code §§17000-17101). Matthew Hirsch, "Newspaper Wins $15.6M in Suit Over Ads" (subscription), The Recorder (Mar. 6, 2008). According to the article, the lawsuit was predicated on the defendant newspaper's alleged violation of Business & Professions Code section 17043, which reads:
It is unlawful for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition.
The Recorder also posted a copy of the jury verdict. It is unclear from the article whether a UCL claim was also pleaded, but my guess would be yes. That claim would be decided by the judge, not the jury. The jury's finding that the defendant violated the UPA probably compels the judge to also find a violation of the UCL's "unlawful" prong. It is doubtful, however, that any monetary relief that the UCL might afford would exceed the damages that the jury already awarded. If the judgment is appealed, the case is sure to be an interesting one to follow.
A recent unpublished opinion, The Upper Deck Co. v. Orrick, Herrington & Sutcliffe, no. D050373 (Feb. 26, 2008), illustrates a creative use of the UCL. The Upper Deck Co. sued Orrick, Herrington & Sutcliffe for legal malpractice. Orrick cross-complained under the UCL, arguing that Upper Deck "had a pattern and practice of hiring law firms without the intent to pay the fees and, after incurring significant fees, claiming malpractice as a pretext to avoid paying the fees." Slip op. at 1-2. Orrick sought "equitable relief as well as restitution for the value of the services it provided to Upper Deck." Id. at 3. Upper Deck moved to strike the UCL claim under the anti-SLAPP law (Code of Civil Procedure section 425.16), arguing that it was a strategic lawsuit against public participation in the petitioning process and the right to use the courts for that purpose. The trial court denied the motion, and the Court of Appeal affirmed.
The Court determined that the gravamen of the UCL claim was Upper Deck's alleged promissory fraud, not its petitioning activity (which allegedly took the form of filing unmeritorious legal malpractice claims):
A close evaluation of Attorney's operative allegations demonstrates that any tacit reference to Upper Deck's petitioning activity is incidental or collateral to the core of Attorney's section 17200 claim. First, the wrongful and injury-producing conduct is the alleged promise without intent to perform--Upper Deck's hiring of Attorney and promise to pay for Attorney's services while allegedly intending not to pay for the services--not the later filing of the malpractice lawsuit. Second, the actual injury to Attorney alleged by the complaint is that it performed the services and was not paid, and the recovery sought by Attorney is payment for those services. Thus, the injury caused by the core wrongful conduct was complete prior to, and apart from, any petitioning activity by Upper Deck. These facts convince us that the "wrongful and injury-causing conduct ... that provides the foundation for the claim" (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at 189) is the alleged promissory fraud by Upper Deck rather than Upper Deck's subsequent petitioning activity. .... [A]lthough Upper Deck's malpractice claims preceded Attorney's cross-complaint, the core of the injury alleged by the section 17200 claim is conduct unrelated to protected activity.
Slip op. at 8-9, 10 (footnote omitted). This was a fortunate ruling for the merits of Orrick's UCL claim as well. If the Court of Appeal had found that the UCL claim rested at its core on the malpractice lawsuit, Upper Deck could have argued that Orrick did not lose money or property (the value of its services) "as a result of" the initial hiring, but rather as a result of the subsequent malpractice claim. Orrick might then have been faced with an argument that it could not establish causation or reliance if the allegedly unfair and fraudulent conduct occurred after the monetary loss. Of course, whether reliance and causation are elements of a UCL claim is an unresolved question that the Supreme Court is expected to address in In re Tobacco and Pfizer.
Thanks to the blog reader who emailed me about this opinion. The full text of the opinion (unformatted) appears after the jump.
The plaintiff employees initiated an arbitration proceeding seeking classwide relief for the employer's violations of the Fair Labor Standards Act ("FLSA") (29 U.S.C. §§200 et seq.), which has a statutory "opt-in" class certification procedure (29 U.S.C. §216(b)). Id. at 5. The arbitrator "made a clause constuction award, ruling that the arbitration agreement did not preclude a class arbitration proceeding," then made a later "class award," determining that the parties had waived the FLSA's "opt-in" procedure and that the AAA "opt-out" rule would apply. Id. at 5-6. The employer challenged this ruling in federal district court. The Fourth Circuit held that the arbitrator did not err by holding that the AAA "opt-out" rule trumped the "opt-in" class certification provision of the FLSA:
[T]he text and legislative history of the FLSA reassure us of Congress’s intention that the "opt-in" procedure should apply in arbitration as in court proceedings, [but] they fail to also convince us that Congress expressly intended that the "opt-in" procedure could not be waived by the parties’ agreement to an alternate procedure.
In In re Syncor ERISA Litigation, ___ F.3d ___ (9th Cir. Feb. 17, 2008), the Ninth Circuit held that the district court abused its discretion by refusing to conduct a Rule 23(e)(2) preliminary approval hearing after the parties notified the court that they had reached a settlement. Instead of enforcing the parties' settlement, the district court went ahead and granted the defendant's pending summary judgment motion, which had previously been argued and submitted for decision. The district court also denied the plaintiffs' motion to set aside the judgment based on the formation of a binding settlement that preceded the summary judgment ruling. This, the Ninth Circuit determined, was error:
The parties agree that they had reached an enforceable settlement agreement subject to court approval. Our court has previously held that the requirement that the district court approve a class action settlement does not affect the binding nature of the parties’ agreement. See Collins v. Thompson, 679 F.2d 168, 172 (9th Cir. 1982) (“Judicial approval of a [class action settlement] is clearly a condition subsequent, and should not affect the legality of the formation of the proposed [settlement] as between the negotiating parties.”) At the time of the settlement, Defendants knew they had dispositive motions pending and chose the certainty of settlement rather than the gamble of a ruling on their motions. Thus, Defendants chose to forego the chance that the district court would grant summary judgment in their favor. Because the parties bound themselves to a settlement agreement subject only to court approval (which they had agreed to seek) and gave the required notice of the agreement, the district court should not have (1) filed its order granting the motions for summary judgment and (2) entered final judgments against the Class.
Slip op. at 1440-41. The Ninth Circuit further noted the important function of the settlement process, especially in class actions:
Additionally, there is a strong judicial policy that favors settlements, particularly where complex class action litigation is concerned. See Class Plaintiffs, 955 F.2d at 1276. In Officers for Justice v. Civil Service Comm’n of the City and County of San Francisco, 688 F.2d 615 (9th Cir. 1982), we specifically stated that, “it must not be overlooked that voluntary conciliation and settlement are the preferred means of dispute resolution. This is especially true in complex class action litigation ....” Id. at 625. This policy is also evident in the Federal Rules of Civil Procedure and the Local Rules of the United States District Court, Central District of California, which encourage facilitating the settlement of cases. See Fed. R. Civ. P. 16(a)(5) (one of the five purposes of a pretrial conference is to facilitate settlement); L.R. 16-2.9 (requiring parties to exhaust all possibilities of settlement); L.R. 16-15 to 15.9 (setting forth policies and procedures for settlement including encouraging disposition of civil litigation by settlement by any reasonable means). The record demonstrates that the Class complied with the local rules by reporting the settlement immediately to the trial judge’s courtroom deputy clerk and timely memorializing the settlement. See L.R. 16-15.7. The district court, nevertheless, refused to vacate the summary judgment order and subsequent final judgments even though the parties had entered a binding settlement agreement subject only to the district court’s approval pursuant to Rule 23(e).
Slip op. at 1441-42. The opinion illustrates the importance of immediately notifying the court when a settlement is reached, especially if dispositive motions are pending:
Because the parties provided appropriate notice to the district court of the settlement agreement, the court should never have filed its order or entered the final judgments. The parties informed the district court that they had entered a binding settlement agreement the day before the district court entered its summary judgment order and two days before the district court entered the final judgments. The district court thus should have reviewed the settlement document as required under Fed. R. Civ. P. 23(e). The district court’s management of its docket must not undercut a valid settlement agreement between the parties that is appropriately provided to the district court for review.
That the district court had already drafted a summary judgment order is not justification for refusing to approve an otherwise enforceable settlement agreement between the parties. The district court is not a party to the settlement. The court’s role in the class action settlement process is to protect the right of those not involved in negotiating the settlement, generally the unnamed class members. Officers for Justice, 688 F.2d at 624 (stating the primary concern of section 23(e) is the protection of those class members, whose rights may not have been given due regard by the negotiating parties).
In Puentes v. Wells Fargo Home Mortgage, Inc., ___ Cal.App.4th ___ (Feb. 28, 2008), the Court of Appeal (Fourth Appellate District, Division One), held that the trial court did not err by granting the defendant's summary judgment motion as to the plaintiffs' UCL claim. The claim challenged the way the defendant mortgage company, Wells Fargo, calculated interest on plaintiffs' home loans. Slip op. at 2-3. The Court of Appeal:
Discussed the Cel-Tech "safe harbor" in some detail. Wells Fargo argued that federal Regulation Z (12 C.F.R. sections 226 et seq.) authorized their method of calculating interest. The Court, however, decided that "[w]e need not resolve the issue." Plaintiffs' challenge to the interest calculation was predicated on the deed of trust, a contract, which they said prohibited Wells from calculating interest the way it did. Quoting a federal case, Watson Laboratories v. Rhone-Poulenc Rorer, Inc., 187 F. Supp.2d 1099, 1117 n.12 (C.D. Cal. 2001), the Court said that "[a] breach of contract may ... form the predicate for Section 17200 claims, provided it also constitutes conduct that is 'unlawful, unfair, or fraudulent.'" Slip op. at 8.
The Court then applied the pre-Prop. 64 formulation of "fraudulent," and held that Wells' interpretation of the trust deed provisions respecting interest calculations was "reasonable and not likely to deceive members of the public." Slip op. at 9.
The Court then discussed the pre- and post-Cel-Tech formulations of "unfair" at some length. Slip op. at 10-12. It determined, however, that "[w]e are not required to adopt a particular definition of 'unfair' here, however, because Wells Fargo's practice is not actionable under any of the definitions." Id. at 12. The opinion concludes:
The consumer benefit of Wells Fargo's adherence to Regulation Z and Appendix J in calculating equal monthly payments — and not recalculating interest during the year of payoff to retrospectively make monthly payments unequal — far outweighs the de minimus injury to some consumers who, like the Puenteses, may pay for a day or two of additional interest than if actual days in the month were used.
Wells Fargo met its burden of persuasion that its practice is not fraudulent or unfair within the meaning of the UCL, and the Puenteses raised no triable issues of material fact in their opposing papers. Accordingly, summary judgment was proper.
Slip op. at 18-19.
The full text of the opinion appears after the jump.
Please come to the 2nd Annual Class Action Seminar: Class Actions from the Plaintiff's Perspective, jointly sponsored by CAOC, SFTLA and BASF. The seminar is this Wednesday, March 5, 9:00 a.m. to 2:00 p.m. in San Francisco, and will be followed by a Judges' Welcome Reception from 2:00 to 4:00 p.m., free to all registered attendees. Judges may register to attend the entire program for free by emailing lori (at) caoc (dot) org.
This program will address the growing “blogosphere” and how attorneys can use it to further their practices. Our experienced panel includes Jim Calloway and Tom Mighell, both of whom are listed in the “Top 100 Blawgs” by the ABA Journal. From a brief history of the blog to an examination of newer technologies such as RSS feeds, this program will give you the tools you need to build and maintain your own blog. If you are new to blogs, or just looking for the latest updates, this is the program for you.