The UCL Practitioner

New UCL/class certification decision: Ticconi v. Blue Shield of California Life & Health Ins. Co.

In Ticconi v. Blue Shield of California Life & Health Ins. Co., ___ Cal.App.4th ___ (Jul. 30, 2007), the Court of Appeal (Second Appellate District, Division Three) reversed an order denying class certification of the plaintiff's UCL claim, which alleged that the defendant violated certain Insurance Code provisions. The Court of Appeal determined that the trial court made an erroneous legal assumption concerning available defenses to the UCL claim.

In particular, the Court held that any non-common questions surrounding the defendant's defenses of unclean hands and fraud could not defeat certification of the UCL claim because those were not valid defenses to that claim:

Courts have long held that the equitable defense of unclean hands is not a defense to an unfair trade or business practices claim based on violation of a statute. To allow such a defense would be to judicially sanction the defendant for engaging in an act declared by statute to be void or against public policy. (Kofsky v. Smart & Final Iris Co. (1955) 131 Cal.App.2d 530, 532; Page v. Bakersfield Uniform Etc. Co. (1966) 239 Cal.App.2d 762, 770 [“The equitable doctrine of the refusal of aid to anyone with ‘unclean hands,’ does not, as such, apply to actions under [the unfair practices act].”) ....

More recently, our Supreme Court explained that “equitable defenses may not be asserted to wholly defeat a UCL claim [under Bus. & Prof. Code, § 17200] since such claims arise out of unlawful conduct. . . .” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179.) In Cortez, the plaintiff brought an action under the UCL seeking restitution of overtime wages withheld from her and other employees. The defendant argued that where the UCL sounded in equity, the trial court was obligated to consider equitable defenses. The Supreme Court held that the equities may be considered when the trial court exercises its discretion to fashion a remedy under Business and Professions Code section 17203. (Ibid.) But, equitable defenses may not be used to defeat the cause of action under the UCL. As more fully explained by Justice Werdegar in her concurrence in Cortez, “in general, as between a person who is enriched as the result of his or her violation of the law, and a person intended to be protected by the law who is harmed by its violation, for the violator to retain the benefit would be unjust.” (Cortez, supra, at p. 182, conc. opn. of Werdegar, J.)

Accordingly, Blue Shield Life should not be entitled to raise the equitable defense of unclean hands to defeat the UCL cause of action here. To allow Blue Shield Life to argue as a defense to the UCL claim of postclaims underwriting that plaintiffs have unclean hands because they misrepresented material medical information on unattached and unendorsed insurance applications, would be to sanction Blue Shield Life’s unlawful and unfair conduct. (Cortez v. Purolator Air Filtration Products Co., supra, 23 Cal.4th at p. 182, conc. opn. of Werdegar, J.; Page v. Bakersfield Uniform Etc. Co., supra, 239 Cal.App.2d at p. 770; Kofsky v. Smart & Final Iris Co., supra, 131 Cal.App.2d at p. 532.) Of course, the trial court has the discretion to consider equitable defenses such as unclean hands in creating the remedies authorized by Business and Professions Code section 17203. (Cortez, supra, at p. 179.) Such defenses may not be used, however, to wholly defeat the UCL cause of action. (Ibid.)

Nor is fraud available as a defense to defeat plaintiff’s cause of action. Insofar as Blue Shield Life failed to attach its insureds’ applications to or endorse them on the policies, those insureds would “not [be] bound by any statements made in [those] application[s]” (§ 10381.5) and “[a]ny waiver of the provisions of this section shall be void” (§ 10113). To raise unclean hands and fraud based on statements in the application to defeat this UCL claim, Blue Shield Life would need to hold insureds to those statements. Yet, not only would that defense violate section 10113’s anti-waiver provision and the very sanction that section 10381.5 provides for failure to attach or endorse the applications to the policy, but that defense is specifically denied the insurance company by the Supreme Court. (Telford v. New York Life Ins. Co., supra, 9 Cal.2d at p. 106.)

Slip op. at 14-16. Applying these principles, the Court determined that class certification had been improperly denied:

[W]here equitable defenses may not be used to wholly defeat the UCL cause of action (Cortez v. Purolator Air Filtration Products Co., supra, 23 Cal.4th at p. 179), and where the insurer may not raise a defense based on misstatements made in unattached and unendorsed applications (Telford v. New York Life Ins. Co., supra, 9 Cal.2d at p. 106), the diverse facts making up Blue Shield Life’s fraud and unclean hands defenses are not to be factored in when determining whether the community interest requirement is met. That is, where they are not to be considered, legal and factual issues that go to remedies simply cannot outweigh the common issues related to liability. In short, the trial court relied on erroneous legal assumptions when it weighed the legal and factual issues of fraud and unclean hands in deciding to deny plaintiff’s motion for class certification. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435-436.)

We disagree with Blue Shield Life that equitable considerations at the remedy stage involve individual issues precluding class treatment of liability. “In the absence of California authority, California courts may look to the Federal Rules of Civil Procedure (FRCP) and to the federal cases interpreting them [citation].” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 14:11.20, p. 14-9.) As explained by the authority on federal class actions, “Individual issues will often be present in a class action, especially in connection with individual defenses against class plaintiffs, rights of individual class members to recover in the event a violation is established, and the type of amount of relief individual class members may be entitled to receive. Nevertheless, it is settled that the common issues need not be dispositive of the litigation. The fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a class action; nor is a class action precluded by the presence of individual defense against class plaintiffs. [] Moreover, a court has the discretion to limit a class suit to liability issues only, or to select[] common claims and defenses . . . .” (1 Newberg on Class Actions § 3:12, pp. 315-316, fns. omitted; see also Gerdom v. Continental Airlines, Inc. (9th Cir. 1981) 648 F.2d 1223, 1228, vacated in part in 692 F.2d 602, cert. den. sub nom. Continental Air Lines, Inc. v. Gerdom (1983) 460 U.S. 1074 [commonality requirement not defeated by fact that members had differing injuries].)

Slip op. at 17-18.

Law blog directories

Blawg World 2007 is available at this link (pdf). It includes profiles of a number of law blogs (including this one) plus many pages of advertising. In prior years, Blawg World did not include advertising, which, in my view, is a change for the worse. There are better sources to identify top law blogs, including Blawg Search, Blawg Review, blawg.org, and Ian Best's Taxonomy of Legal Blogs.

Supreme Court denies review in class member communication case: Belaire-West Landscaping, Inc. v. Superior Court

On Wednesday, July 25, 2007, the Supreme Court denied review in Belaire-West Landscaping, Inc. v. Superior Court, no. S152806. In that case, the Court of Appeal applied Pioneer Electronics in the context of a wage and hour class action, rejecting the argument that the Supreme Court's discovery-related decision should apply only to consumer cases. Belaire-West Landscaping, Inc. v. Superior Court, ___ Cal.App.4th ___ (Apr. 9, 2007). My original post on Belaire-West is here.

"Judge adds a twist to Explorer profits trial"

Yesterday's Sacramento Bee had an interesting update on the Ford Explorer trial now pending in Sacramento County Superior Court. As I previously reported, this case is a class action involving UCL and CLRA claims. According to the Sacramento Bee article, the trial court is considering whether the UCL or CLRA empowers it to order Ford to disgorge its ill-gotten profits:

The plaintiffs' lawyers have argued that Ford rushed the Explorer to market in 1990 to beat the competition and marketed it as a safe family vehicle, even though Ford engineers knew that its tall, narrow design made it prone to rolling over.

Ford then reaped $2.135 billion in ill-gotten profits, the plaintiffs claim. They argue that Judge David De Alba, who is hearing the case without a jury, has the power to order Ford to give back the money.

The plaintiffs' case relies in part on the testimony of Dr. Alan Goedde, an economist and hired expert on damage awards.

He analyzed Ford documents and determined the company made hundreds of millions of dollars because it did not take another year or more to fix the Explorer's safety problems.

Goedde was scheduled to testify Wednesday, but Ford's lawyers objected that his evidence was irrelevant because it concerned profits that De Alba could not order Ford to relinquish.

Ford lawyer Peter Herzog of St. Louis said the plaintiffs could offer evidence only about their claim that Explorers sold in the 1990s had lost value once problems with defective Firestone tires and rollovers came to light in 2000.

The plaintiffs' attorneys claim each Explorer lost approximately $1,100 to $1,300 in resale value, for a total of about $500 million.

De Alba asked why it was within his authority to award any profit "over and above that number."

San Francisco lawyer Elizabeth Cabraser responded that De Alba could order Ford to disgorge its profits if he found its behavior to have been "reprehensible and highly profitable."

New UCL/class certification decision: Arias v. Superior Court

In Arias v. Superior Court, ___ Cal.App.4th ___ (Jul. 24, 2007), the Court of Appeal (Third Appellate District) addressed whether the trial court properly granted the defendant's motion to strike the representative allegations from the plaintiff's complaint. The opinion has two holdings of note.

First, the court held that "[t]he UCL requires that a representative claim be brought as a class action because the UCL requires compliance with the class action provisions of Code of Civil Procedure section 382." Slip op. at 2; see id. at 3-12. This part of the holding does not seem particularly noteworthy to me, if only because several other courts have already said this, albeit in dicta. Arias is, however, the first decision to analyze the question in any detail. (The decision does not expressly address the injunctive relief question or whether a UCL claim seeking injunctive relief only must be formally certified for class treatment before the court may order the defendant to halt its wrongful conduct.)

The decision also includes an interesting diccussion of Prop. 64's impact on associational standing. According to the Arias court, Prop. 64 did not change the rules of associational standing because it is Code of Civil Procedure section 382, not the UCL, that authorizes such standing:

The Supreme Court has interpreted the second half of section 382 as permitting two types of representative suits: class actions and actions by an association on behalf of its members. (Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 233, fn. 4.) [n.5] ....

[n.5] As enacted, associations and organizations whose members have a joint interest in their affairs, such as joint associations and partnerships, were included within the representative provisions of section 382. (See Code commrs. notes foll. 14 West’s Ann. Code Civ. Proc., § 382 as enacted in 1872 (2004 ed.) p. 269.)

These provisions were retained when the UCL was amended pursuant to Proposition 64, the only change being the deletion of the phrase “person acting for the interests of itself,” and its replacement with “person who has suffered injury . . . .” Accordingly, the amendments affect only natural “persons,” who are subject to the injury in fact and damage requirements of Business and Professions Code section 17204.

Slip op. at 8 & n.5. The court's use of the word "damage" to describe section 17204 is also interesting. Elsewhere, the court says that "Business and Professions Code section 17204 now requires that a plaintiff have suffered damages." Slip op. at 4-5 (emphasis added).

The second noteworthy holding in Arias is the court's conclusion that the Labor Code Private Attorneys General Act ("PAGA") (Lab. Code §§ 2698 et seq.) authorizes a representative action, similar to a pre-Prop. 64 UCL representative action, without formal class certification. Slip op. at12-16. The court predicated its holding on Labor Code section 2699, which states:

Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.”

Slip op. at 12-13 (quoting Lab. Code § 2699). The court said that "[t]he PAGA was adopted to empower aggrieved employees to act as private attorneys general and to authorize them to seek civil penalties for Labor Code violations that previously could be assessed only by state agencies." Id. at 14 (citing Dunlap v. Superior Court, 142 Cal.App.4th 330, 336 (2006)). The court explained:

Both the language of the PAGA and the express intent of the Legislature indicate that an aggrieved employee may bring an action on behalf of other employees without complying with the requirements of a class action. Labor Code section 2699 specifically states that an aggrieved employee may bring an action on behalf of other employees, “[n]otwithstanding any other provision of law . . . .” The wording of the PAGA, which authorizes an aggrieved employee to bring an action “on behalf of himself or herself and other current or former employees . . . [,]” is similar to the former wording of Business and Professions Code section 17204, which authorized a person to bring an action “acting for the interests of itself, its members or the general public.” Non-class representative actions were authorized under former Business and Professions Code section 17204. (See Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th 116.) Unlike the current version of Business and Professions Code section 17203 after the passage of Proposition 64, the PAGA does not require that an action brought by an aggrieved employee comply with section 382 of the Code of Civil Procedure.

Id. at 14-15.

New Supreme Court UCL preemption decision: Viva! v. Adidas

In Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., ___ Cal.4th ___ (Jul. 23, 2007), the Supreme Court held that the Endangered Species Act (16 U.S.C. §§ 1531 et seq.) did not preempt a UCL "unlawful" prong claim predicated on violation of a Penal Code section that prohibits importation or sale of products made from kangaroo hide. The Supreme Court remanded the case back to the Court of Appeal "to address Adidas’s remaining claims." Slip op. at 29. One of Adidas's "remaining claims" on appeal is the argument that Viva! lost standing to pursue this case after Prop. 64. However, as in Californians for Disability Rights v. Mervyn's, the association still has standing to pursue its appeal because it remains an "aggrieved party." It may have to substitute plaintiffs at the trial court level.

In the legal press, the Daily Journal reports that "Court OKs Kangaroo-Product Ban" (subscription). In the mainstream press, the San Francisco Chronicle reports that "State Supreme Court nixes sales of shoes made with kangaroo hide" and the Los Angeles Times reports that "Adidas' use of kangaroo hide is illegal, state justices say."

Supreme Court denies review this time in Californians for Disability Rights v. Mervyn's

On Wednesday, July 18, the Supreme Court denied a petition for review in Californians for Disability Rights v. Mervyns LLC, no. S153088. Although I haven't seen the petition, my guess is that Mervyn's challenged the Court of Appeal's unpublished opinion dated April 17, 2007, which held that Californians for Disability Rights was an "aggrieved party" and thus had standing to continue to pursue its appeal, even if it lost its trial-level standing due to Prop. 64. Here's my original blog post on that opinion. An article at the news site cbs5.com confirms this.

New reference pages at the California courts website

I just discovered these new pages at the California courts website:

• A list of all of the California courts with links to their websites (the links to the Superior Court websites are particularly useful because those web addresses are not uniform)

• A map of the Court of Appeal Districts (pdf)

UCL preemption decision to be handed down Monday: Viva! v. Adidas

Today, the Supreme Court announced that on Monday at 10:00 a.m., it will hand down its decision in Viva! v. Adidas, a UCL preemption case previously discussed on the blog here, here, and here. When the opinion comes down, it should be available at this link.

VIVA! INTERNATIONAL VOICE FOR ANIMALS, ET AL. v. ADIDAS PROMOTIONAL RETAIL OPERATIONS, ET AL. S140064 (A106960 – City and County of San Francisco – 420214) Argued in San Francisco 5-29-07

This case presents the following issue: Does the doctrine of conflict preemption preclude California from prohibiting importation and trade of wildlife that have been delisted under the federal Endangered Species Act and thus are not currently regulated by federal law?

"Consumer Class Actions Usurping Personal Injury Claims"

On July 11, 2007, the National Law Journal had an interesting article called "Consumer Class Actions Usurping Personal Injury Claims." The article reports that "[p]aintiffs lawyers are filing an increasing number of class actions under state consumer-protection laws in conjunction with, or in place of, traditional personal injury class actions, which have become too difficult in recent years to certify." The article goes on to explain that these suits seek to recover the economic loss the consumers suffered, rather than damages for personal injury. Sounds familiar, as monetary relief under the UCL has long been limited to restitution, which encompasses economic loss.

Depublication requests denied: Walsh v. IKON Office Solutions, Inc.

Last Wednesday, July 11, 2007, the Supreme Court denied the multiple requests to depublish Walsh v. IKON Office Solutions, Inc., 148 Cal.App.4th 1440 (2007) (one of which was filed by yours truly).

"Appeal Courts Are Publishing More Cases"

Today's Recorder has a very interesting article (subscription) about the increase in the number of published Court of Appeal opinions since April 1, when the Rule of Court governing publication (Rule 8.1105) was amended. According to the article, "[p]reliminary figures show that during the first 2 1/2 months after an amended rule on publication took effect April 1, the number of decisions published by the state's six appellate courts rose 35 percent."

The article also quotes several Court of Appeal justices on their approach to publication under the new rule:

[T]he Second District's H. Walter Croskey has the distinction of publishing the most rulings under the amended rules. According to The Recorder's count, Croskey published seven rulings between April 1 and June 15 of this year.

....

Croskey noted, though, that under the amended rule he and his colleagues seem more inclined to grant attorneys' requests to publish a ruling that was initially issued unpublished. "We give it a broader interpretation," he said.

In fact, by The Recorder's reckoning the six appellate courts chose to publish 41 rulings between April 1 and June 15 of this year that were originally unpublished. That compares to 23 for the same time period in 2006.

Not only numbers have changed, Croskey said, but so have the justices' attitudes.

"The difference in the new rules essentially is that, before you had to provide literally a reason to publish," he said. "Now the bias seems to have switched and you have to almost have a reason not to publish. That's my way of looking at it."

New UCL/CLRA nondisclosure decision: Falk v. General Motors Corp.

In Falk v. General Motors Corp., 2007 WL 1970123 (N.D. Cal. Jul. 3, 2007), the plaintiffs alleged that GM knowingly sold vehicles with defective speedometers. Judge William Alsup denied GM's motion to dismiss the plaintiffs' CLRA and UCL claims.

Analyzing the CLRA claim, Judge Alsup distinguished both Daugherty and Bardin, then held that the alleged problem with the speedometers was material and that GM had a duty to disclose it. As for the UCL claim, Judge Alsup applied the ordinary "likely to be deceived" formulation of the "fraudulent" prong and the pre-Cel-Tech formulation of the "unfair" prong. He concluded that a claim was stated under all three prongs of the UCL. The opinion concludes:

In closing, it is worth saying that ordinarily an express warranty begins and ends the manufacturer’s duty to replace an item like the one in question. Here, however, the large number of articulate and credible Internet postings set forth in the complaint strongly indicates that GM knew of the problem and very likely had far more information on a material defect. At least at the pleading stage, this complaint states a claim that GM knew and concealed that its speedometers were defective and likely to fail far more often than expected by the consuming public. Discovery may or may not bear this claim out. But enough is alleged to authorize plaintiffs and their counsel to proceed to take discovery.

For the reasons given, defendant’s motion to dismiss plaintiffs’ unjust enrichment claim is GRANTED without leave to amend. Plaintiffs, however, allege sufficient factual support for all of their other claims. Although Daugherty and Bardin bar CLRA claims for omissions when there is no duty to disclose and when defendants have made no representations to the contrary, plaintiffs adequately plead that GM had a duty to disclose here, which it violated. Defendant’s motion to dismiss under Rules 12(b)(6) and 9(b) is therefore DENIED as to plaintiffs’ CLRA, UCL and fraud by omission claims. Discovery may begin immediately.

Falk, 2007 WL 1970123 at *10 (slip op. at 14). Thanks to the blog reader who emailed a copy of this decision.

UCL public prosecutor action: People ex rel. Brown v. Powerex Corp.

In People ex rel. Brown v. Powerex Corp., ___ Cal.App.4th ___ (Jun. 11, 2007; pub ord. Jul. 11, 2007), the Court of Appeal (Third Appellate District) held that the filed rate doctrine barred the Attorney General's UCL claim in its entirety. The Court specifically rejected the AG's argument that the UCL claim did not "rely on any filed tariff term, directly affect a filed rate or tarriff provision, nor collaterally attack the reasonableness of any filed rate":

The complaint sought restitution, disgorgement of profits, civil penalties and damages as a result of Powerex’s trading activities, alleging the gaming of the market resulted in unfair payments to Powerex which harmed California electricity consumers and de-stabilized the power delivery system. Any monetary relief would be in excess of the tariffs eventually applied by FERC and therefore are barred by the filed rate doctrine. (Snohomish, supra, 384 F.3d at pp. 760-762; Dynegy, supra, 375 F.3d at p. 853; Grays Harbor, supra, 379 F.3d at pp. 651-652; TANC, supra, 295 F.3d at pp. 929-932; Enron, supra, 327 B.R. at pp. 535-537 [barring California Attorney General’s claims under UCL and CCL based on gaming the market].) Further, civil penalties are regulatory and “to impose a civil penalty upon an incident or event, without regard to whether injury was suffered, is to regulate the activity that gave rise to the incident or event.” (People v. Union Pacific Railroad Co. (2006) 141 Cal.App.4th 1228, 1257-1258.) Regulating gaming schemes by imposing penalties would grant relief in excess of the tariffs and conflict with FERC’s exclusive regulatory power over the wholesale energy market. (See Duke Energy Trading and Marketing, L.L.C. v. Davis (9th Cir. 2001) 267 F.3d 1042, 1056-1057 [state “commandeering orders directly nullify the security and default mitigation provisions of the FERC-approved CTS rate schedule, and hence cross the ‘bright line’ between state and federal jurisdiction established by the FPA”].)

The claim of entitlement to injunctive relief, too, is barred by the filed rate doctrine. (Snohomish, supra, 384 F.3d at pp. 760-762; Dynegy, supra, 375 F.3d at pp. 836-839, 852-853; see Norwood, supra, 202 F.3d. at pp. 419-420.) Further, we rejected an injunctive claim arising from the energy crisis, for lack of any “threat that the misconduct to be enjoined is likely to be repeated in the future.” (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465.) The Attorney General’s complaint and briefing predicates liability on conduct during the energy crisis. Gaming could not be successfully attempted now, when the ISO, FERC and the Attorney General are all watching the power companies like hawks.

Because the complaint fails to state any good claim for relief the trial court properly sustained the demurrer.

Slip op. at 21-23.

One of the people who responded to The UCL Practitioner Reader Survey said they would like to see more reports about government use of the UCL. Truth be told, very few published opinions involve public prosecutor actions, which is the primary reason why I don't report much on them. It's difficult to gather information about trial-level cases. Most of the time I know nothing about them until a published opinion comes down from an appellate court.

By the way, thanks to everyone who has participated in the reader survey so far. The survey is still open and you can click here to participate.

"Judge Ponders Firms for Huge LCD Case"

My colleague, Michael Lehmann, is quoted in this article in today's Recorder about "a huge price-fixing case against companies that make flat-panel TV screens and similar products."

Washington Supreme Court strikes down "no class action" arbitration clause: Scott v. Cingular Wireless

In Scott v. Cingular Wireless, ___ P.3d ___ (Wash. Jul. 12, 2007) (en banc), the Washington Supreme Court invalidated a "no class action" arbitration clause, holding that the clause was unconscionable. Its holding was predicated on a number of California authorities, including Vasquez v. Superior Court, 4 Cal.3d 800 (1971) and Discover Bank v. Superior Court, 36 Cal.4th 148 (2005).

Blog Hiatus and Reader Survey

The blog will be on hiatus for the next two weeks, through approximately July 17th. Please continue to send me email about anything of relevance, including new UCL and class action decisions, proposals for co-counseling arrangements, etc.

Meanwhile, I hope you will all participate in The UCL Practitioner Reader Survey. The survey consists of nine questions and will take less than five minutes to complete. I'm hoping the results will tell me more about the blog's readership. Please click here to take the survey. Thanks for your help!

S.B. 376 - UCL's public prosecutor provisions amended

Legal Pad reports that on June 28, 2007, Governor Schwarzenegger signed S.B. 376, which amends Business and Professions Code sections 17204 and 17206 to permit the City and County of San Francisco to continue to pursue public UCL enforcement actions even if its population falls below 750,000. Now, public UCL enforcement actions may be brought by:

the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city having a population in excess of 750,000, or by a city attorney in any city and county and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor ....

Bus. & Prof. Code § 17204 (as amended). A Recorder article from February 2006 has more on a previous, but unsuccessful, effort to pass similar legislation. My February 2006 blog post on the subject is also of interest.

Two more new UCL decisions: Akkerman v. Mecta Corp. and Benson v. Kwikset Corp.

Two more UCL decisions came down last week:

• Akkerman v. Mecta Corp., ___ Cal.App.4th ___ (June 27, 2007) (Second Appellate District, Division Six) (affirming denial of class certification of UCL claim)

• Benson v. Kwikset Corp., ___ Cal.App.4th ___ (June 29, 2007) (Fourth Appellate District, Division Three) (another post-Mervyn's remand decision)