In Downey v. Public Storage, Inc., 44 Cal.App.5th 1103 (Feb. 6, 2020), the Court of Appeal (Second Appellate District, Division Two) affirmed an order denying class certification of UCL and FAL claims based on the defendant storage facility's allegedly deceptive "$1-for-the-first month" promotion.
I disagree with most of the reasoning of this opinion because I think it misapplies Tobacco II. This opinion, in effect, requires classwide proof of elements that are necessary for the named plaintiff's standing after Prop. 64, but that need not be shown for the unnamed class members. In my humble opinion, it makes no sense to deny class certification based on issues that may very well be non-common, but that pertain to facts that will not have to be proven at trial. For example, if actual deception is not an element of a UCL "fraudulent" prong claim, as the Supreme Court held in Tobacco II and other cases, then it should not matter if some class members were actually deceived by the allegedly false advertising and some may not have been. In re Tobacco II Cases, 46 Cal.4th 298, 320 (2009) ("relief under the UCL is available without individualized proof of deception, reliance and injury" (citations omitted)).
I've been saying this for a long time, but in spite of my most sincere and earnest protestations (that's my attempt at some humor, folks), many opinions have gone the same way as Downey. Most of these are cited in Downey. Some decisions have gone the other way. For a few years after Tobacco II, I tracked the post-Tobacco II opinions falling on both sides of this split. (See these five blog posts.) Downey is the fifteenth such case I have covered on this blog (there may be some others I've missed over the years), with cases falling on both sides of the question.
The Supreme Court has yet to weigh in on how Tobacco II applies at the class certification stage. A petition for review was filed in Downey on March 13, 2020. Downey v. Public Storage, no. S261212.
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