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Friday, December 22, 2006


John Hurley

I have to disagree with your statement that this decision is contrary to well-established jurisprudence holding that an ommission can form the basis of a CLRA claim.

In Massachusetts Mutual, the case was founded on an alleged fraudulent ommission, but there was no analysis by the court as to whether such allegations fit any of the categories of proscribed conduct set forth in the CLRA. The issue was whether individual issues of reliance could preclude class certification. The decision came on a writ petition challenging a grant of class certification, so it would have been inappropriate for the Court of Appeal to address merits issues and the court did not address them. The case should not be cited for authority on a point it did not decide.

On the other hand, I agree with you that the UCL issue on fraudulent practices was poorly decided. Essentially, the Court of Appeal applied pre-Pfizer law and held that where there is an express warranty period, that effectively establishes the baseline of how long a reasonable consumer would believe the product should last without malfunctioning.

Although I like the idea of bright-line rules when possible, the issue of what counstitutes a fraudulent business practice does not lend itself to bright line rules. The warranty in question was only 3-years or 36,000 miles. I think most people would agree that a car should last a lot longer than that -- the average consumer these days takes out a 5-year loan on a car, and one of the name plaintiffs suffered total engine failure at only 57,000 miles.

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