Last week, the Supreme Court released its May oral argument calendar. Two UCL cases will be heard.
On Tuesday, May 7, 2013 at 9:00 a.m., the Court will hear Rose v. Bank of America, no. S199074. Justice Louis R. Mauro of the Third Appellate District will sit in place of Justice Chin, who is recused. Links to the briefs in this case are available here.
Then, on Wednesday, May 8, 2013 at 1:30 p.m., the Court will hear Zhang v. Superior Court (Cal. Cap. Ins.), no. S178542. Review was granted in Zhang in February 2010 and the briefing was completed in August 2010. It is one of the oldest civil cases on the Court's docket.
The issues raised in these cases are somewhat related. The usual rule is that a statutory violation can lead to UCL liability regardless of whether the underlying, "borrowed" statute carries a private right of action.
In Zhang, the Court of Appeal considered whether Moradi-Shalal, in which the Supreme Court held that the legislature did not intend to create a private right of action for violations of the Unfair Insurance Practices Act, also barred UCL "unlawful" prong claims for violations of the Act. An earlier case said it did, but in Zhang the Court of Appeal held that if the defendant's conduct not only violates the Act but is also otherwise unlawful, it can be pursued under the UCL. Zhang v. Superior Court (Cal. Cap. Ins. Co.), 178 Cal.App.4th 1081 (Oct. 29, 2009).
Rose involved the Truth in Savings Act (12 U.S.C. § 4301 et seq.), a federal statute that used to carry a private right of action, but Congress allowed it to sunset. The Court of Appeal reasoned that permitting a UCL "unlawful" prong claim would contravene Congress's intent to preclude the statute's private enforcement. Rose v. Bank of America, N.A., 200 Cal.App.4th 1441 (2011). Rose, unlike Zhang, has federal preemption implications.
Both arguments will take place in San Francisco. I hope to be able to attend at least one of them.