The UCL Practitioner

"Class Certified in Suit Against UC"

A story (subscription) in yesterday's Recorder reported that "[a] federal judge has certified a class of all current, prospective and future female students at UC-Davis as part of a suit alleging the university provides unequal access between genders to varsity sports."   

Here is a copy of the order granting class certification in Brust v. Regents of the University of California, E.D. Cal. case no. 2:07-cv-01488-FCD-EFB. Claims certified for class treatment include violation of Title IX and California's Unruh Civil Rights Act. A copy of the complaint is available at this link. 

New class certification decision: Harper v. 24 Hour Fitness, Inc.

In Harper v. 24 Hour Fitness, Inc., ___ Cal.App.4th ___ (Oct. 22, 2008), the Court of Appeal (Second Appellate District, Division Seven) reversed an order decertifying UCL and FAL claims for class treatment.   One justice dissented. 

In a pre-Prop. 64 order, the trial court had ruled that class certification was no longer "superior" to a non-class, UCL representative action, which the law permitted at the time. Slip op. at 5-6. The Court of Appeal aptly pointed out that Prop. 64 eliminated the non-class, representative action, so there was no streamlined alternative procedure that could be "superior" to class certification. Id. at 9-10 (citing Fireside Bank v. Superior Court, 40 Cal.4th 1069, 1092 (2007)).

The trial court also decertified the class due to "the ongoing difficulty in properly identifying the members of the certified class from [the defendant's] records." Id. at 11. The Court of Appeal said that this factor "may be considered as part of a properly conducted evaulation of the superiority of proceeding by class action," but that the trial court had misapplied that factor here:

[T]he need to individually examine each member’s contract to ultimately determine whether he or she qualifies for inclusion in the class does not, as suggested, demonstrate a lack of ascertainability or manageability or establish that common questions of fact or law do not predominate. (See Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325.)

With respect to the difficulty in confirming the identity of all class members prior to a determination on the merits, Division One of this court recently affirmed certification of a class consisting of FedEx drivers over FedEx’s objection “the members of this class shifted ‘in and out, sometimes on a day-to-day basis.’” (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14.) The court explained, “The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description. [Citation.] [¶] . . . If FedEx’s claim is that every member of the class had to be identified from the outset, FedEx is simply wrong.” (Ibid.; accord, Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at p. 1335; see also Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 [“‘a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery’”]; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 [class of employees ascertainable in spite of absence of specific rest period records; “speculation that goes to the merits of ultimate recovery [is] an inappropriate focus for the ascertainability inquiry”]; Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 744 [fact that class may ultimately turn out to be overinclusive not determinative; most class actions contemplate eventual individual proof of damages, including possibility some class members will have none].)

Id. at 11-12. The Complex Litigator also has a detailed post on Harper.

Recent federal CLRA decision: Friedman v. 24 Hour Fitness USA, Inc.

Friedman v. 24 Hour Fitness USA, Inc., ___ F.Supp.2d ___, 2008 WL 4370005 (C.D. Cal. Sept. 22, 2008), is an interesting new federal decision on the CLRA.  Here is what the court (Judge A. Howard Matz) had to say about whether a CLRA claim for broad-ranging injunctive relief may proceed without formal class certification: 

Plaintiffs ... bring the Fifth Claim for injunctive relief under “in their individual capacity on behalf of the general public,” but they do not seek class certification on this claim. Fourth Am. Compl. ¶ 138. Plaintiffs' claim arises under California Civil Code section 1780, which authorizes a civil action by “[a]ny consumer” for violations of the CLRA. Fourth Am. Compl. ¶ 144. Under this claim, Plaintiffs seek an injunction pertaining to Defendant's allegedly deceptive representations to consumers about its special deals and discounts and the nature of the monthly membership. Defendant contends this claim fails because the CLRA does not permit suits “on behalf of the general public,” so this claim must be construed as a class claim subject to the class action provision in the CLRA, California Civil Code § 1781. Section 1781 states:

Any consumer entitled to bring an action under Section 1780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages or obtain other relief as provided for in Section 1780.

Cal. Civ.Code § 1780 (emphasis added). Because Plaintiffs did not plead compliance with section 1781, Defendant argues, this claim is legally insufficient.

Defendant cites no authority that would require Plaintiffs' CLRA claim to be construed as a class claim subject to the requirements of section 1781, nor any authority that states that a CLRA claim for injunctive relief cannot be “on behalf of the general public.”Although Proposition 64, as codified at Cal. Civ.Code § 17203, eliminated representative UCL actions unless it met the requirements of a class action, it did not impose the same limitation on the CLRA.

Plaintiffs, in contrast, do cite authority suggesting that it is acceptable to seek such relief on behalf of the general public. In Broughton v. Cigna Healthplans of California, 21 Cal.4th 1066, 1079-80, 90 Cal.Rptr.2d 334, 988 P.2d 67 (Cal.1999), the California Supreme Court indicated that when a plaintiff seeks injunctive relief under the CLRA, he “is functioning as a private attorney general, enjoining future deceptive practices on behalf of the general public.” The Court went on to explain,

the evident purpose of the injunctive relief provision of the CLRA is not to resolve a private dispute but to remedy a public wrong. Whatever the individual motive of the party requesting injunctive relief, the benefits of granting injunctive relief by and large do not accrue to that party, but to the general public in danger of being victimized by the same deceptive practices as the plaintiff suffered.

Id. at 1080, 90 Cal.Rptr.2d 334, 988 P.2d 67. Despite the differing circumstances, Broughton is nonetheless instructive. It suggests there is nothing defective about pleading a claim for injunctive relief under the CLRA “on behalf of the general public.”Plaintiffs' Fifth Claim seeks precisely what the CLRA is designed to do, according to Broughton--an injunction intended to benefit the public at large. Therefore, Plaintiffs state a viable claim in their Fifth Claim for Relief.

Id. at *8-*9.  Support for this holding can also be found in Thompson v. 10,000 RV Sales, Inc., 130 Cal.App.4th 950, 980 (2005), in which the Court of Appeal affirmed a broad-ranging CLRA injunction that had been entered without formal class certification, and Cruz v. Pacificare Health Systems, Inc., 30 Cal.4th 303, 312 (2003), in which the Supreme Court strongly suggested that “public injunctions” may be ordered under the CLRA without class certification.

Brinker order granting review

Here is the Supreme Court's order, filed October 22, 2008, granting the petition for review in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. 166350.  For more on Brinker, see this blog post.

Blawg Review #183

This week I am pleased to be the host of Blawg Review, the law blog carnival.  Blawg Review is hosted each week by a different law blogger who presents a selection of choice posts from law blogs across the blawgosphere. 

For first-time visitors to this site, I created The UCL Practitioner in 2003 to cover the California Unfair Competition Law (Cal. Bus. & Prof. Code sections 17200 et seq.), which is our UDAP statute or "little FTC Act."  I soon expanded the blog's scope to cover California class action law.

The UCL Practitioner is what might be called a "hard" law blog.  It covers new decisions of the California appellate courts and the Ninth Circuit, with an occasional segue into decisions of interest from other circuits or other states' high courts. I created a companion blog, The Appellate Practitioner, for posts on California appellate practice. The blog's "soft" side covers law blogging and the state of the legal blogosphere.

As a California native, and as an attorney who lives and works in San Francisco, I have always tried to recognize and promote my fellow California law bloggers.  The California blawgosphere will be the focus of Blawg Review #183. 

An Introduction to the California Blawgosphere

California is home to some great law bloggers.  Some of the earliest adopters — J. Craig Williams of May it Please the Court; Denise Howell of Bag and Baggage; and Professor Eugene Volokh of the The Volokh Conspiracy, to name just three — call California home.  While it is no longer feasible to catalog all of the California-based law blogs, I've listed many in my blogroll to the right, and Professor Eric Goldman of Santa Clara University School of Law has compiled a list of Bay Area law bloggers.  Mountain View-based Blawgsearch has a directory of 117 California-focused law blogs.  The ABA Journal also has a directory of California law blogs.

Here are some highlights from California-based law bloggers over the past week: 

• At Class Action Defense Blog, San Francisco attorney Michael J. Hassen has his weekly report on class action filings in California state and federal courts. This week, as in most weeks, new wage and hour class actions top the list.
  
  
• The Complex Litigator, authored by H. Scott Leviant of Los Angeles, pulls together some interesting thoughts about recent class-action-related decisions of the California Court of Appeal for the Second Appellate District, Division Seven.  I had not noticed that so many recent decisions of significance to class action practitioners came from Division Seven.  They are the it-Division of the moment.
  
  
• Oxnard appellate lawyer Greg May, author of The California Blog of Appeal, has the latest in his series of posts on why clients should entrust their appellate work only to experienced appellate counsel.  
  
  
• At May it Please the Court, Newport Beach attorney J. Craig Williams has a lengthy post outlining his latest book, tentatively entitled Bad Decisions? 10 Famous Cases That Changed History.  Craig's first book is How to Get Sued: An Instructional Guide. 
  
  
• California Punitive Damages - An Exemplary Blog is authored by several attorneys from Encino, including Lisa Perrochet and Curt Cutting.  Last week, they reported on a dispute among the Exxon Valdez plaintiffs over how to distribute $383 million in punitive damages.
  
  
• California Attorney's Fees by Santa Ana attorneys Marc Alexander and William M. (Mike) Hensley discusses a new California case on the standard of review governing appeals from attorneys' fees awards.
  
  
• Attorney Bruce Nye of San Francisco is the author of Cal Biz Lit, where this week he covers a new California decision on federal preemption of product liability claims.
  
  
• Irvine attorney Michael J. Walsh of the popular blog Wage Law has a series of posts on the California Supreme Court's grant of review last week in an important case (Brinker v. Superior Court (Hohnbaum)) involving class certification of wage and hour claims, including an interesting discussion of California Labor Commissioner Angela Bradstreet's controversial actions in the wake of the Brinker opinion last July and the Supreme Court's grant of review last week.  [Disclosure: I am co-counsel of record for the employees who sought review in Brinker.]
  
  
• Storm's Califorina Employment Law by Jon-Erik G. Storm of Santa Maria also reports on Brinker.  One cool thing about Jon-Erik's blog is that he creates special category pages for each significant pending case or bill that he is following.  Here is his category page for Brinker.
  
  
• Other California law bloggers who reported on Brinker last week include San Francisco attorney Kent J. Sprinkle at the California Labor and Employment Law Blog; Los Angeles attorney Anthony Zaller at California Workplace Resource Blog; San Francisco attorney D. Gregory Valenza at What's New In Employment Law?; and an unnamed Sheppard Mullin attorney at Labor and Employment Law Blog.   Scott Leviant also has multiple Brinker-related posts at The Complex Litigator.
  
  
• Always reliable, University of San Diego School of Law Professor Shaun Martin of California Appellate Report summarizes a California Court of Appeal opinion that addressed an internecine dispute within the Episcopal Church. 
  
  
• Attorney Martin N. Buchanan of San Diego maintains California Supreme Court Pending Civil Cases.  The site takes the form of a single blog post and summarizes the civil cases now pending before the California Supreme Court, organized by subject matter and complete with a summary of the issues on review.   
  
  
• At California Consumer Finance Litigation, San Francisco attorney Daniel O'Reilly reports on a new Ninth Circuit opinion on the interplay between choice-of-law provisions and no-class-action arbitration clauses.  (I also reported on this Ninth Circuit case at this post.)
   
  
• The National Law Journal's L.A. Legal Pad reports on a wage and hour class action filed last week (the complaint is available here) on behalf of laid-off Heller Ehrman staff members (one of whom also has a blog, Heller Highwater).  
  
  
• Los Angeles attorney Diane Crumpacker at the Southern California Employment Law Report blogs about the implications of the state and federal WARN laws.  Incidentally, violations of those very laws are alleged in the Heller Ehrman wage and hour class action.
  
  
• Los Gatos attorney Kristie Prinz, author of California Biotech Law Blog, has a detailed post on the compliance questionnaires that the IRS recently issued to the technology transfer offices of over 400 colleges and universities.
  
  
• Attorney Beth Grimm of Pleasant Hill posted a reader Q&A last week on her blog, California Condo & HOA Law.
  
  
• IP Law Observer, authored primarily by Michael F. Kelleher of San Francisco, reports on a recent Federal Circuit decision holding that "payments by a drug manufacturer to end patent invalidity claims did not violate antitrust laws because the anticompetitive effect was within the exclusionary scope of the patent."
  
  
• At California Divorce Blawg, attorney John E. Harding of Pleasanton reports on a new Eighth Circuit opinion on international child custody disputes. 
  
  
• Norman Gregory Fernandez, "a real biker" and a real Chatsworth-based motorcycle lawyer, blogs at Biker Law Blog.  Last week, he wrote about a disturbing trend of government seizures of motorcycle clubs' intellectual property--specifically, their club logos.  Evidently, the authorities declare the clubs "criminal enterprises," invoke civil forfeiture laws, "seize" the club logos, then assert that the club members may no longer wear them on their clothing.  Reminds me of news reports about laws that say I can't wear my Barack Obama or "No on 8" buttons to my polling place when I vote because that's considered "electioneering." 
  
  
• Bakersfield-based Terrence T. Egland of the California Business Bankruptcy Blog reported at the end of August that nearly one million bankruptcy cases had been filed in the preceding 12 months.  He has not posted since.  He must be busy. 
  
  
• At Technology & Marketing Law Blog, Santa Clara University Law School Professor Eric Goldman reports on a Central District of California decision addressing whether California had personal jurisdiction to hear a defamation action against a Florida-based blogger (it did not). 
  
  
• At The Volokh Conspiracy, UCLA Law Professor Eugene Volokh offers advice to prospective law students interested in specializing in "internet law" -- whatever that means.
  
  
• At Statements of Interest, Sausalito attorney Cathy Gellis describes her (bad) experience with a legal job search firm called Law Crossing.  I had the pleasure of meeting Cathy once at a get-together of Bay Area law bloggers organized by Professor Goldman. 
  
  
• Attorney Colin Samuels of San Ramon has a weekly schadenfreude report at his blog, Infamy or Praise.  Colin is also a Blawg Review sherpa.
  
  
• San Francisco attorney Kevin Underhill of the legal humor blog Lowering the Bar reminds us that we all enjoy the constitutionally-protected right to drop the F-bomb when we need to. 
  
  
• Legal Pad, the blog of CalLaw.com, debates the merits of Twitter for lawyers and provides a link to a list of over 300 "absolute-must-follow lawyer-twitterers."  I first learned about Twitter at BlogHer 2007 in Chicago, and I created a Twitter account, but its utility for lawyers I confess remains beyond me.  What would I have written yesterday?  That I was researching whether the 30-day deadline to submit corrections to a deposition transcript is extended 5 days for service by mail (it is, according to Weil & Brown)?  Fascinating stuff.
  
  
• Steve Mayer, San Francisco attorney and author of the relatively new law blog The California Constitution, reports on a recent Court of Appeal opinion on the scope of the voters' power to adopt initiative measures, an important issue eight days before the election.  The opinion "reaffirmed that initiatives can only be used to enact statutes, not to compel future legislative action."
  
  
• Speaking of the election, San Francisco attorney John Hoar of The Legal Reader excerpts a New York Times article on the potential impact of the presidential election on the makeup of the U.S. Supreme Court.  (Drug and Device Law of Philadelphia/Chicago has already declared Obama the winner.  I am cautiously optimistic.)
  
  
• Dale C. Campbell of the Sacramento-based IP Law Blog gives us a summary of the presidential candidates' positions on intellectual property rights (to the extent they can be discerned).
  
  
• In his Election Law Blog, Professor Rick Hasen of Loyola Law School in Los Angeles points us to his latest Findlaw.com article, which discusses the adverse impact of  the litigation over the 2000 presidential race and the likelihood of similar litigation this year, especially in some of the swing states.
  
  
• Beverly Hills-based attorney Victoria Pynchon catches Barack Obama fever at her negotiation law blog, Settle it Now.  Law.com recently featured Victoria's blog in this list of twenty strong female voices in the legal blogosphere. 

I hope you've enjoyed this potpourri of posts from the best of the California blawgosphere.  If you know of other great posts from California law bloggers that could have been included here, please mention them in the comments.  And next Monday, be sure to visit the law professors at The Faculty Lounge, who will be hosting a special Election-Eve Blawg Review.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

New law blog: The California Constitution

A new law blog, The California Constitution, focuses on "[t]he law and politics affecting our State's fundamental charter."  That's an interesting subject and one not already covered by any existing blog that I'm aware of. 

[Via California Appellate Report]

Supreme Court sets CLRA case for argument: Meyer v. Sprint Spectrum

On Wednesday, the Supreme Court scheduled oral argument in a case raising CLRA issues, Meyer v. Sprint Spectrum, no. S153846. The argument will take place on December 3, 2008 at 9:00 a.m. in Los Angeles. These are the issues on review in Meyer:

(1) Has a person suffered "damage" within the meaning of the Consumer Legal Remedies Act (Civil Code, section 1780, subd. (a)), such as to allow that person to bring an action under the Act if that person is a party to an agreement containing an unconscionable term (see Civil Code, section 1770, subd. (a)(19)), even though no effort has been made to enforce the unconscionable term? (2) Did plaintiffs have standing to seek declaratory relief?

The Court of Appeal said "no" to both questions. Meyer v. Sprint Spectrum L.P., 150 Cal.App.4th 1136 (2007) (review granted). See these two blog posts for more on the Court of Appeal's opinion.

Supreme Court grants review in class certification case: Brinker Restaurant Corp. v. Superior Court (Hohnbaum)

Yesterday, the Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350. In that case, the Court of Appeal reversed an order granting class certification of meal period, rest break, and off-the-clock claims. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal.App.4th 25 (2008) (review granted). Under Rule of Court 8.1105(e)(1), the Court of Appeal's opinion is no longer citable as precedent.  [Disclosure: I am co-counsel of record for the employees who sought Supreme Court review in this case.]

Most of the attention this case has received has focused on the substantive wage and hour issues, particularly the meal period compliance questions, that the case raises.  Those issues are extraordinarily important.  But the case also raises significant class certification questions that may prompt the Supreme Court to expand on its holding in Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319 (2004), which the Brinker opinion all but ignored.  The petition for review states the class-certification-related issues as follows: 

5. Survey and Statistical Evidence Issue: May trial courts accept expert survey and statistical evidence as a method of proving meal period, rest break, and/or "off-the-clock" claims on a classwide basis?

6. Standard of Appellate Review Issue: When an appellate court reviews an order granting class certification, does the appellate court prejudicially err by: (a) deciding issues not enmeshed with the class certification requirements; (b) applying newly-announced legal standards to the facts, then reversing the class certification order with prejudice, instead of remanding for the certification proponent to attempt to meet the new standards, and for the trial court to apply the new standards to the facts in the first instance; or (c) reweighing the evidence instead of reviewing the trial court’s predominance finding under the substantial evidence standard of review?

It will be quite interesting to see what the Supreme Court does with these issues. 

Today's Recorder reports that "Supremes Take 'Brinker' Break Case," and the Daily Journal that "California Supreme Court to Take Up Meal and Rest Break Case" (subscription).

New class action settlement decision: Cundiff v. Verizon California, Inc.

In Cundiff v. Verizon California, Inc., ___ Cal.App.4th ___ (Oct. 16, 2008), the Court of Appeal (Second Appellate District, Division Three) construed Code of Civil Procedure section 384, which addresses "unpaid residuals in class action litigation." In Cundiff, the parties agreed to a "claims-made" settlement, but some of the checks were returned as undeliverable and some were never cashed. As a result, the settlement administrator held over $400,000 in unpaid settlement proceeds. The defendant argued that this sum should revert to it, but the plaintiffs argued that, under section 384, the fund should be paid to "nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons." Slip op. at 2, 6-7.

The Court of Appeal held that "in the absence of a reversion provision in the settlement agreement, section 384 has eliminated the prospect of reversion of unpaid residue to a defendant in that it requires payment of such residue to nonprofit organizations." Id. at 11. The Court rejected the defendant's argument that section 384 applies only in cases involving "fluid recovery," and not to claims-made settlements, finding no "legislative intent to limit application of that provision to fluid recovery cases or cases in which the defendant has paid into a common fund for the benefit of a class. Indeed, the legislative history suggests the enactors intended a broad application. [¶] Here, no fund was established at the time final judgment was entered. However, after the claims were administered and Verizon deposited the money necessary to pay the claims, a fund was created. The unclaimed funds at issue are the 'unpaid residue' of that fund" for purposes of section 384. Id. at 14.

Ninth Circuit opinion on no-class-action arbitration clauses: Hoffman v. Citibank (South Dakota), N.A.

In Hoffman v. Citibank (South Dakota), N.A., ___ F.3d ___ (9th Cir. Oct. 14, 2008) (per curiam), the Ninth Circuit remanded for the district court to re-determine whether, under California's choice-of-law rules, South Dakota or California law applies in assessing whether the credit card contract's no-class-action arbitration clause is unconscionable. 

That analysis would be outcome-determinative, because the clause would be enforceable under South Dakota law (slip op. at 14492 n.2), but "would be substantively unconscionable under California law on the facts alleged" (id. at 14497) (emphasis in original).

Rehearing denied and opinion amended in class certification/collateral estoppel case: Johnson v. GlaxoSmithKline

Yesterday, the Court of Appeal (Second Appellate District, Division Seven) denied rehearing and amended its opinion in Johnson v. GlaxoSmithKline, Inc., ___ Cal.App.4th ___ (Sept. 19, 2008; mod. Oct. 14, 2008). The modification order adds two footnotes to the opinion and effects "no change in the judgment." The rehearing petition may have been a precursor to a review petition, which would be due on or about October 29. My original post on the Johnson opinion is here.

San Diego City Attorney files UCL action against Washington Mutual

On October 8, 2008, the City Attorney of San Diego filed a UCL action against Washington Mutual on behalf of not just San Diego residents but all California consumers.  A copy of the complaint is available at this link, and here is the City Attorney's press release.  The action alleges "predatory real estate lending practices" and seeks various forms of injunctive relief, including an order requiring WaMu to "formulate a loan modification program" for certain borrowers. 

Yesterday's Daily Journal reported that "S.D. City Attorney Sues WaMu, Alleging Unfair Lending Practices" (subscription).

New federal CLRA decision: Galindo v. Financo Financial, Inc.

In Galindo v. Financo Financial, Inc., 2008 WL 4452344 (N.D.Cal. Oct. 3, 2008), the court (Judge William Alsup) wrote this about the CLRA's pre-filing notice requirement:

California courts require “strict” compliance with Section 1782. Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 40-41, 124 Cal.Rptr. 852 (1975). Plaintiffs filed the present action in state court on June 29, 2007. Plaintiffs admit that they filed no notice as required by Section 1782 until October 1, 2007--months after the state-court action was filed. According to plaintiffs, however, the notice requirements were met because notice was given thirty days before the second amended complaint in this action was filed. Plaintiffs cite to no support for this argument. Significantly, Section 1782 requires that notice be given thirty days before the “commencement of an action” (emphasis added). Notice, therefore, should have been given thirty days before June 29, 2007. This was not done. Defendants request that plaintiffs claim be dismissed with prejudice. The Court is aware that Magistrate Judge James Stiven of the Southern District has dismissed a CLRA claim with prejudice where a plaintiff has failed to satisfy the pre-litigation requirements of Section 1782. See Von Grabe v. Sprint, 312 F.Supp.2d 1285, 1394 (S.D.Cal.2003). The undersigned believes this draconian sanction is unwarranted here. There are other disciplinary ways to deal with any willful disregard of the law, such as attorney's fees awards to name just one. Accordingly, plaintiffs' CLRA claim is hereby DISMISSED WITHOUT PREJUDICE.

What this paragraph overlooks is the fact that the CLRA's pre-filing notice requirement applies only to claims for damages. It is perfectly appropriate to file a CLRA action for injunctive relief without giving any pre-filing notice at all, or to file a CLRA injunctive relief action and then amend the complaint to add a damages claim after the 30-day notice period has expired. If the plaintiff sought both injunctive relief and damages, therefore, neither dismissal nor any form of sanctions would be warranted, in my opinion. At most, an order striking the damages portion of the prayer might be indicated.

New opinion on collateral estoppel in class action cases: Johnson v. GlaxoSmithKline, Inc.

In Johnson v. GlaxoSmithKline, Inc., ___ Cal.App.4th ___ (Sept. 19, 2008), the Court of Appeal (Second Appellate District, Division Seven) expressed a great deal of skepticism about the legal underpinnings of a notorious decision from 2006 on the operation of collateral estoppel in the class action context, Alvarez v. May Department Stores Co., 143 Cal.App.4th 1223 (2006) (see this blog post for more on Alvarez). The Complex Litigator has more on Johnson in this post.

Supreme Court denies review in CLRA case: Ball v. FleetBoston Financial Corp.

Last week, the Supreme Court denied review in Ball v. FleetBoston Financial Corp., no. S165154. This case raised the issue of whether the CLRA applies to credit card transactions. See Ball v. FleetBoston Financial Corp., 164 Cal.App.4th 794 (2008). In my blog post on the Court of Appeal's opinion, I opined that the issue was ripe for review, but the Supreme Court seemingly disagreed.

Five years and counting ...

I created this blog five years ago today.

New UCL "abstention doctrine" decision: Center for Biological Disversity, Inc. v. FPL Group, Inc.

Those of you who closely followed the heavy trial-level activity post-Prop. 64 may remember a significant ruling on Prop. 64 standing in a group of 13 cases that were pending before Judge Ronald M. Sabraw when Prop. 64 passed (see this blog post for more). In Center for Biological Disversity, Inc. v. FPL Group, Inc., ___ Cal.App.4th ___ (Sept. 19, 2008), the Court of Appeal (First Appellate District, Division Three) reviewed a later ruling of Judge Sabraw in one of those cases.

The case sought to employ the UCL to enforce the "public trust doctrine" against operators of wind turbine electricity generators in the Altamont Pass. Slip op. 3-4. The opinion interprets the public trust doctrine quite broadly (id. at 8-17), but concludes that any claim for breach of the public trust must be brought against the appropriate regulatory agency or governmental body (id. at 17-22). The opinion goes on to hold that, even were a UCL action against the turbine operators appropriate, the court should decline to entertain it under the doctrine of equitable absention and should "defer[] to the regulatory oversight being provided by public authorities." Id. at 22-25.

"Where Are All the Female Law Bloggers?"

A Law.com article today asks, "Where Are All the Female Law Bloggers?" Hello, here's one right here! I don't know about other women bloggers, but I have had no problems promoting my blog, finding time to write it, or dealing with personal attacks -- the three reasons given for why fewer women lawyers supposedly write law blogs.

UPDATE: Thanks to author C.C. Holland for including my blog in this list: "Strong Female Voices in the Legal Blogosphere." See also this post at Legal Blog Watch for more links to prominent women law bloggers.

CAOC Annual Convention, Nov. 7-9, 2008

The 47th Annual Convention of Consumer Attorneys of California will take place on November 7-9, 2008 in San Francisco and online registration is now open. The convention will feature different "tracks" throughout each day. I am currently slated to speak during the class action track on Friday, November 7. My segment is called "Discovery in Class Actions." Here is a printable pdf version of the convention brochure with more information on the various tracks. Plaintiffs' attorneys, please register for the convention and while you're at it, join CAOC!

"Principal" vs. "principle"

In a curious coincidence, three courts confused the words "principal" and "principle" in opinions issued within the past ten days:

• "[N]ot all class members will want to [rescind] because it requires returning the loan priniciple in exchange for the release of the lien ...." Andrews v. Chevy Chase Bank, ___ F.3d ___ (7th Cir. Sept. 24, 2008) (slip op. at 8).

• "HP argues the trial court erred in refusing to apply the principals of Daugherty to the determination of class certification." Hewlett-Packard Co. v. Superior Court, ___ Cal.App.4th ___ (Sept. 26, 2008) (Sixth Appellate District) (slip op. at 7).

• "Hence, negligent driving of postal trucks was a principle activity for which Congress wanted to create liability when the FTCA waived sovereign immunity." MB.Financial Group, Inc. v. United States Postal Service, ___ F.3d ___ (9th Cir. Sept. 25, 2008) (slip op. at 13770) (via California Appellate Report).

Class action against a newspaper? No prior restraints allowed: Freedom Communications, Inc. v. Superior Court

In Freedom Communications, Inc. v. Superior Court, ___ Cal.App.4th ___ (Sept. 30, 2008), the Court of Appeal reversed an order prohibiting the the Orange County Register from reporting on the trial of a wage and hour class action in which the Register is the defendant.

New CLRA decision: Bourgi v. West Covina Motors, Inc.

In Bourgi v. West Covina Motors, Inc., ___ Cal.App.4th ___ (Sept. 24, 2008), the Court of Appeal (Second Appellate District, Division Eight) discussed what happens when the CLRA overlaps more specific statutory provisions (here, provisions of the Vehicle Code). The Court determined that the Vehicle Code and CLRA "must be read together" and that the more specific Vehicle Code provisions created what it called a "safe harbor defense" to the CLRA claim. Slip op. 11-13. The Court further held that the trial court erred by not instructing the jury on the defense. Id. at 16-18.

New class certification decision: Hewlett-Packard Co. v. Superior Court

Last Friday, in Hewlett-Packard Co. v. Superior Court, ___ Cal.App.4th ___ (Sept. 26, 2008), the Court of Appeal (Sixth Appellate District) refused to disturb an order granting class certification, holding that the legal arguments the defendant advanced in opposition to certification intruded upon the merits and therefore could not be resolved at the class certification stage. Monay's Recorder reported that "Ruling Clears Path for Suit Against HP" (subscription).

Hewlett-Packard is a UCL and CLRA case alleging that HP sold certain types of notebook computers knowing that the computers had defective components affecting the brightness of the display. Slip op. at 2. The trial court certified a class of all persons who purchased certain HP notebook computers equipped with a specific type of "inverter" (a component of the display screen that affects the screen's brightness) "and who experienced a dim, dark, or flickering display." Id. at 2-5.

HP argued that non-common questions predominated because Daugherty v. American Honda Co., 144 Cal.App.4th 824 (2006) requires an individual assessment of whether each notebook computer display was substantially certain to fail before the end of its "useful life." Slip op. at 7-8. Both the trial court and the Court of Appeal disagreed, viewing the argument as merits-based and thus inappropriate to consider when ruling on class certification:

While Daugherty may have implications for the merits of [the] underlying action, and indeed may serve to bar claims by plaintiffs that occurred outside the warranty period, it does not affect a determination of class certification. Daugherty is distinguished from the present action because it related to a substantive question on demurrer rather than a procedural question as here on a motion for class certification. And the question in a determination of class certification is “essentially ... procedural ... [and] does not ask whether an action is legally or factually meritorious.” (Linder, supra, 23 Cal.4th 429, 439-440, emphasis added.)

If we were to accept HP’s argument regarding the application of Daugherty to the present action, we would be considering the merits of the underlying action.

Slip op. at 9 (emphasis in original). The Court of Appeal also disagreed with HP respecting whether, under Daugherty, "a product malfunction is required in order for the product to be considered defective" (id.), and whether that argument would impact the predominance of common questions:

Contrary to HP’s argument in this case, whether or not the alleged defects occurred during the warranty period does not affect a finding of community of interest in the present case. Plaintiffs here allege a common defect in the HP notebook computers and their display screens. In order to prove that defect, plaintiffs will present evidence of call records reporting dim displays, records of repairs of faulty inverters, service notes documenting defects that were known to HP, and an HP policy that all notebooks returned for any reason would have their inverter repaired, regardless of whether the screen actually failed. A jury could find, based on this evidence, that the inverters in question were defective and that HP is liable for the defect. The issue of whether the inverters were defective is appropriate for a joint trial with common proof. For example, if the jury finds that the inverters were defective, then each plaintiff would not need to separately prove that his or her inverter was defective, only that he or she had a computer that contained that type of inverter.

In this writ, HP requests that we order the trial court to vacate its order certifying the class because some of the plaintiffs’ claims may be substantively invalid under Daugherty. This is not a proper consideration on the question of class certification. The merits of the case can and will be decided at a later point in this case. Indeed, the trial court noted that stating with regard to Daugherty that it was “neither ruling on the merits of the causes of action not what limits to recovery for any class member might be.”

Id. at 10. This language from Hewlett-Packard provides a great roadmap to common proof for plaintiffs in consumer product defect class actions and may well limit Daugherty's effects in such cases.