In Hutton v. Fidelity National Title Co., ___ Cal.App.4th ___ (Jan. 31, 2012), the Court of Appeal (Fifth Appellate District) affirmed summary judgment in a UCL case predicated on the defendant's alleged violation of a Government Code provision capping notary fees.
After holding that the defendant had not violated that provision, thereby eliminating the UCL "unlawful" prong claim, the Court of Appeal refused to consider whether the plaintiff could proceed under the UCL's "unfair" or "frauduent" prongs because those prongs had not been adequately pleaded in the complaint:
In arguing that defendant did not address certain other potential causes of action, plaintiff’s appeal emphasizes that the UCL has three separate grounds of liability. That is a correct statement of the law. (See Bus. & Prof. Code, § 17200.) “Since section 17200 is in the disjunctive, it establishes three separate types of unfair competition. The statute prohibits practices that are either ‘unfair,’ or ‘unlawful,’ or ‘fraudulent.’ [Citation.]” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1496.) Plaintiff argues that it stated a cause of action for potential unfair or fraudulent practices .... Whatever we may think about the viability of such theories, the problem for plaintiff at this stage is that no such claim or cause of action was ever alleged.
In an effort to persuade us that these theories were somehow pled, plaintiff notes that the first cause of action included a statement that defendant’s conduct was “unlawful, unfair or fraudulent.” But that was a bare conclusion, not the factual basis of a cause of action. Moreover, we cannot ignore that the next sentence of the complaint made it unmistakably clear that the first cause of action was based solely on “unlawful” conduct. It stated, as we previously noted above, as follows: “Namely, [Defendant] overcharged Plaintiff … by assessing and collecting set Notary Fees in each Real Estate Transaction irrespective of the number of signatures actually notarized. Plaintiff … [was] charged more than California law allowed, and thus lost money due to [Defendant’s] unlawful business practices.” (Italics added.) .... Plainly then, the actionable wrongdoing for which relief was sought in the complaint was not a failure to disclose or itemize, nor a notary’s unauthorized practice of law, but that of overcharging plaintiff by exceeding the amount permitted under section 8211.
What we said at the outset of our discussion bears repeating here: For purposes of a summary judgment motion, the pleadings set the boundaries of the issues to be resolved. (Conroy, supra, 45 Cal.4th at p. 1250.) Defendant, therefore, met its burden as the moving party when it negated the sole basis of plaintiff’s claims—namely, the alleged excessive notary fee under section 8211. It was not incumbent on defendant to refute liability on some theoretical possibilities not included in the pleadings. (Conroy, supra, at p. 1254; County of Santa Clara v. Atlantic Richfield Co., supra, 137 Cal.App.4th at p. 332.) Each of the suggested other grounds for liability argued by plaintiff were simply theoretical possibilities that were not included in the pleadings. Finally, plaintiff cannot use his opposition papers as a substitute for an amended pleading, and his failure to seek an amendment below forfeits the issue. (Conroy, supra, at p. 1254; County of Santa Clara v. Atlantic Richfield Co., supra, at pp. 333; Lackner v. North, supra, 135 Cal.App.4th at pp. 1201-1202, fn. 5.)
Slip op. at 15-17 (italics in original; bold added).
This case illustrates why the better way to plead a UCL claim in most cases will be to assert each prong as a separate, independent cause of action. At a minimum, each prong should be pleaded in a separate paragraph or subparagraph specifically tailored to the elements of that prong. The process of drafting separate allegations for each independent prong will force you to focus in on precisely how the defendant's conduct ran afoul of each prong.