Unpublished Prop. 64 opinion ordered published: Bivens v. Gallery Corp.

On Wednesday, the Court of Appeal issued a publication order in Bivens v. Gallery Corp., ___ Cal.App.4th ___ (Nov. 22, 2005). My original post on the unpublished opinion is here. After holding (consistent with its prior rulings) that Prop. 64 applied retroactively to the case, the Court of Appeal affirmed the judgment of dismissal that followed an order sustaining the defendant's demurrer without leave to amend. The Court of Appeal determined that leave to amend to substitute an affected plaintiff would not be granted because the underlying claims lacked merit as a matter of law. Applying the "reasonable consumer" standard, the Court determined that the defendant's allegedly misleading advertising was not misleading as a matter of law. Interestingly, throughout the opinion, the Court repeatedly applied the "likely to deceive" or "likely to mislead" standard when discussing the UCL's "fraudulent" prong (as well as the CLRA and the False Advertising Act), suggesting that the new "injury in fact and lost money or property" language does not alter that substantive liability standard. See, e.g., slip op. at 4, 5, 6, 16, 17, 18, 20, 21.