This week, the Supreme Court depublished the Court of Appeal's opinion in Aspiras v. Wells Fargo Bank, N.A., 219 Cal.App.4th 948 (2013), discussed in this blog post.
This is an interesting development. Aspiras created a split in authority with Jolley v. Chase Home Finance, LLC, 213 Cal.App.4th 872 (2013), regarding the post-Cel-Tech formulation of "unfair" conduct. There is a longstanding three-way split in authority on the meaning of "unfair," and these two cases created a sub-split.
Under the post-Cel-Tech formulation, conduct is "unfair" if it contravenes a legislative expression of public policy. I think of it as violating the spirit, rather than the letter, of the law.
In Jolley, the defendant's conduct violated a law that the Legislature enacted after the conduct occurred. The Court of Appeal reasoned that by enacting the law, the Legislature had recognized the existence of a public policy, and that the defendant's conduct in contravention of that policy was "unfair" under the UCL. (Jolley is discussed in this blog post.)
The Court of Appeal in Aspiras disagreed with this line of reasoning, and accepted the defendant's argument that so construing the "unfair" prong would "effectuate an improper retroactive application of the [newly-enacted] law."
I have not seen the depublication request, so it's possible the Supreme Court was concerned with some other aspect of the opinion, which addressed a number of issues. But at minimum, the Supreme Court's depublication order eliminates this sub-split in authority.
Comments