The UCL Practitioner

Ninth Circuit affirms class certification of UCL claims: Walker v. Life Insurance Co. of the Southwest

Last week, the Ninth Circuit affirmed class certification in a UCL action alleging misrepresentations in connection with the sale of life insurance policies.  Walker v. Life Ins. Co. of the Southwest, ___ F.3d ___ (9th Cir. Mar. 23, 2020). 

In so doing, the Court construed and applied Tobacco II as follows: 

The UCL bans “unlawful, unfair or fraudulent business act[s] or practice[s] and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. To bring a UCL claim, a plaintiff must establish he suffered “as a result of” the defendant’s conduct. Id. § 17204. In the seminal California case on UCL class actions, In re Tobacco II Cases, the defendants moved to decertify a UCL class for the reason that individualized issues—i.e., whether all class members were exposed to, relied on, and were injured by allegedly false and deceptive advertisements—predominated over common ones. 207 P.3d 20, 28 (Cal. 2009). The California Supreme Court interpreted this statute to mean that named plaintiffs, but not absent ones, must show proof of “actual reliance” at the certification stage. Id. at 38. Relying on California cases, wherein courts “repeatedly and consistently . . . h[eld] that relief under the UCL is available without individualized proof of deception, reliance and injury,” the court reasoned that “requiring all unnamed members of a class action to individually establish standing would effectively eliminate the class action lawsuit as a vehicle for the vindication” of rights under the UCL. Id. at 35–36.

We have repeatedly relied on Tobacco II in recognizing “what amounts to a conclusive presumption” of reliance in UCL cases. Stearns [v. Ticketmaster Corp.], 655 F.3d [1013,] 1021 n.13 [(9th Cir. 2011)]. The presumption serves to relieve UCL plaintiffs of their obligation to establish absent class members’ reliance, see 2 Newberg on Class Actions § 4:60 (5th ed. 2019)—an issue that, in other contexts, can raise so many individualized questions as to defeat predominance, id. § 4:58.

Slip op. at 11-12 (citing In re Tobacco II Cases, 46 Cal.4th 298 (2009)). 

The Court went on to explain that in UCL actions, non-common questions might predominate when the defendant distributed "disparate information" across the class, rather than "pervasive[]" "material misrepresentations."  See id. at 12 (citing cases).  (In prior blog posts, I have described this as a "Kaldenbach problem.")  Certification was properly granted of a class defined to include only those purchasers to whom the alleged misstatements were made.  See id. at 13-15. 

Compare this analysis to the Court of Appeal's reasoning in Downey v. Public Storage, Inc., 44 Cal.App.5th 1103 (Feb. 6, 2020), discussed yesterday in this blog post. 

The Ninth Circuit also considered "whether a district court can, as it did here, define a class in a way that automatically gives rise to a presumption of reliance."  Slip op. at 18.  The answer is yes: 

This question appears to be one of first impression in our circuit. In our prior UCL class-certification cases, we have relied on allegations and evidence establishing class-wide dissemination of alleged misrepresentations to determine whether a presumption of reliance applies. [Citations.] Can a class definition, which extends membership only to those who were exposed to alleged misrepresentations, automatically trigger the presumption? We cannot think of any good reason why not, or any evils that allegations and evidence of class-wide dissemination could cure that a class definition cannot.

Id. at 18-19. 

Also of interest is the Court's holding than when reviewing class certification orders on appeal, "[t]he Court 'accord[s] the district court noticeably more deference' to a grant of certification 'than when [it] review[s] a denial.'"  Id. at 9 (quoting Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th Cir. 2010); In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 480 (2d Cir. 2008)) (emphasis added).

The last section of the opinion is a lengthy and interesting discussion of the requirements for timely filing a Rule 23(f) petition for permission to appeal when reconsideration is sought.  Id. at 19-25.  Plaintiffs' attempt to "cross-appeal" (so to speak) in order to challenge a certain aspect of the class definition was untimely.  See id.

Another post-Tobacco II class certification opinion: Downey v. Public Storage, Inc.

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. 

UCL "unlawful" prong case: Uber Technologies Pricing Cases

In Uber Technologies Pricing Cases, ___ Cal.App.5th ___ (Mar. 23, 2020), the Court of Appeal (First Appellate District, Division One) considered an action against Uber by "several taxi companies and taxi medallion owners" "alleging violation of the Unfair Practices Act’s (UPA) prohibition against below-cost sales (Bus & Prof. Code, § 17043) and, in turn, violation of the Unfair Competition Law (UCL) (§ 17200 et seq.)."  Slip op. at 1 (footnote omitted).  The trial court held that the claims fell within a statutory exception for "any service, article or product for which rates are established under the jurisdiction of the [CPUC]," even though the CPUC had not in fact stepped in and "established" any actual rates for Uber to follow.   Id. at 3-4. 

The Court of Appeal affirmed, in a detailed analysis of this statutory interpretation question (id. at 4-18), then disposed of the UCL claim in a footnote:

Because plaintiffs’ UCL claims were wholly derivative of their UPA claims, they were also properly dismissed.  (See Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185 [When a UCL claim is derivative of other substantive causes of actions, the dismissal of the antecedent substantive causes of action necessarily means dismissal of the UCL claim.].) 

Id. at 18 n.10. 

I wonder how a UCL "unfair" prong claim might have fared (no pun intended).  The statutory exception does not sound like a Cel-Tech safe harbor, because it does not expressly declare Uber's conduct to be lawful.  Cel-Tech Communications, Inc. v. Los Angeles Cell. Tel. Co., 20 Cal.4th 163, 183-84 (1999).  Nor does the safe harbor apply to regulatory actions, such as hypothetical CPUC rate setting (which had not even occurred in this case).  See Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924, 940 n.5 (2004) (“our Supreme Court has held that only statutes can create a safe harbor”).  

Probable cause to pursue a UCL mislabeling action? Citizens of Humanity, LLC v. Hass

In Citizens of Humanity, LLC v. Hass, ___ Cal.App.5th ___ (Feb. 21, 2020; pub. ord. Mar. 16, 2020), the Court of Appeal (Fourth Appellate District, Division One) considered an appeal from orders denying an anti-SLAPP motion in a malicious prosecution case.  The trial court determined that the plaintiff (Citizens of Humanity, maker of expensive designer jeans) "met its burden to establish a probability of prevailing on the merits."  Slip op. at 2, 7-8.  On a 2-1 vote, the Court of Appeal reversed affirmed.

The opinion is of interest for its discussion of the underlying lawsuit, which the plaintiff claimed was maliciously prosecuted.  The underlying action (which was commenced in federal court under CAFA) alleged that Citizens of Humanity falsely labeled its jeans "Made in the U.S.A." when, in fact, the fabric used to make the jeans was imported.  This conduct, the plaintiff in the underlying case alleged, violated former Business and Professions Code section 17533.7, and thus the UCL's "unlawful" prong.  The case also asserted a CLRA violation.  Slip op. at 4. 

While the action was pending, the Legislature amended section 17533.7 (effective Jan. 1, 2016) to allow "Made in the U.S.A." labels on products "if foreign parts comprise no more than 5 percent of the product's final wholesale value" or "if foreign-sourced materials could not be domestically sourced and comprise no more than 10 percent of the product's final wholesale value."  Slip op. at 4-5.  Motion practice ensued on whether these amendments applied retroactively.  Id. at 5.  After the district court held that they did (applying the "statutory repeal" rule; see these blog posts), and also that standing was not adequately alleged, the remaining named plaintiff elected not to amend her complaint, and the action was subsequently dismissed with prejudice.  Id. at 5-6.

The Court of Appeal decided that Citizens of Humanity had shown that it would probably prevail on the merits of its malicious prosecution claim against the attorneys who brought this case and the remaining named plaintiff.  Slip op. at 13-24.  Evidence adduced in the underlying action supported the conclusion that the first named plaintiff (Clark, who subsequently withdrew) was a "shill plaintiff" who lacked standing, and "no reasonable attorney" would have represented her.  Id. at 13-16.  As for the second named plaintiff (Hass), the record included evidence that she also lacked standing and had conducted no investigation into her claims before agreeing to serve as a class representative.   Id. at 17-24. 

As to the element of "malice," the Court of Appeal determined that "[t]he record contains some evidence that would support a reasonable inference by a trier of fact that [the attorneys and their client Hass] were pursuing the litigation against Citizens with an improper purpose."  Id. at 24; see id. at 24-26 (summarizing this evidence).  Finally, the Court of Appeal determined that Citizens had shown a "favorable termination on the merits" in the underlying action.  Id. at 27-31.

Justice Dato filed a dissenting opinion in which he strongly disagreed with the Court of Appeal's "probable cause" analysis.  From the introduction:

In my view, Citizens failed to make a prima facie showing that the underlying mislabeling lawsuit was instituted or maintained without probable cause.  As such, the anti-SLAPP motions should have been granted.  (See JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1527 [reversing for failure of proof as to a single essential element].)

At its core, this case turns on the distinction between a reasonable inference and a speculative one.  My colleagues and I broadly agree on the facts and applicable law.  We part ways in how we view those facts in the context of this anti-SLAPP motion.  Although the disagreement appears on some level mundane—what credence to afford a given set of facts—the import of today's decision implicates the ability of lawyers to zealously advocate for their clients.

Slip op. (Dato, J., dissenting) at 1-2.  He goes on, summarizing the evidence on which the majority relied as to the first plaintiff (Clark) and expressing his view that it is not enough to support a prima facie case for malicious prosecution:

Crediting Citizens's proffer, the majority suggest there is "significant evidence to support the reasonable inference that Clark was a shill plaintiff, and the Del Mar Attorneys were aware of this fact." (Maj. opn., ante, at p. 14.) What evidence specifically?  One of the Del Mar Attorneys (but not the one in charge of the case) is Clark's brother-in-law, and Clark has been a named plaintiff in several of the firm's prior mislabeling lawsuits.  Clark testified at her deposition that she left the tags on the jeans after coming home, as she prepared to wash them.  She also testified that she purchased a lot of jeans but, under normal circumstances, rarely looked to see where they were made.  And after Clark was deposed, she sought to withdraw because she was no longer comfortable being in the spotlight.  We are told that in their totality, these facts support a reasonable inference that Clark was a "shill" plaintiff, whose lawsuit was entirely contrived. 

But can such facts, even in their totality, truly suffice to support a judgment at trial?  Although an inference can serve as substantial evidence for a factual finding on appeal, " ' "the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork." ' "  (Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 411; see Evid. Code, § 600, subd. (b).)  In the SLAPP context specifically, courts have confirmed that although we do not "weigh the credibility or comparative probative strength of competing evidence," we disregard evidence that is "argumentative, speculative, impermissible opinion, hearsay, or conclusory."  (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26−27.) 

Clark's participation in other mislabeling suits does not support a nonspeculative finding that she was a "shill," as opposed to someone who relied on the labels of the products she purchased.  Many consumers leave tags on newly purchased clothing until they wash or wear them—the fact that the tags were still on the jeans as Clark prepared the wash does not support a nonspeculative finding that her purchase was a ruse.  For budgetary reasons Clark bought many foreign-made goods; this hardly means she did not place a premium on jeans specifically labeled "Made-in-the-USA."²  And Clark's decision to withdraw as named plaintiff after facing accusations about her family ties does not permit us to conclude why she withdrew, and it is certainly not enough to allow a jury to find she withdrew because her disingenuous motives were about to be exposed. 

² I may buy most of my clothing without looking at a tag to see where the item was made.  But if I splurge on an expensive suit or pair of shoes labeled "Made in Italy," it would hardly be fair to say I didn't care about that label.

These observations are not an impermissible weighing of the evidence.  Courts always perform an essential gatekeeping role in deciding how much is enough evidence to allow a jury to reach a reasonable conclusion.  Here, respectfully, the inferences relied on by the majority opinion are too inconclusive and speculative to carry Citizens' burden.  Although Citizens may harbor a suspicion based on these facts that Clark was a shill whose lawsuit was contrived, it has in my view failed to produce sufficient evidence as would support such a finding at trial.

Id. at 5-7 (footnotes 3 and 4 omitted).  The dissent includes a similar discussion of the claims against the second named plaintiff (Hass).  Id. at 8-10. 

The dissent then concludes as follows:

Defendants regularly complain of being forced to incur substantial expense to defend against meritless lawsuits.  In most cases, we understandably balance the costs and benefits in favor of permitting plaintiffs their day in court.  The costs of defense are the costs we accept for the ability to freely seek redress of grievances. 

But the context of this case is very different, because permitting this malicious prosecution plaintiff its day in court will, I fear, do much to chill the ability of other plaintiffs in all types of cases to seek fair redress of their grievances.  Even more troubling, in my view, is the chilling effect this may have on lawyers asked to represent them.  Will attorneys now infer they would be advised not to represent family members on something less than open-and-shut cases?  Or that a law firm should cease to represent a client after filing a few similar lawsuits on her behalf?  If a client becomes confused and performs poorly at a deposition, will a reasonable attorney feel compelled to jump ship?  And must an attorney direct a heightened level of scrutiny to information provided by a client before filing suit? 

I hope these are not the inferences that are drawn by most lawyers.  No doubt they are not the inferences intended by the majority.  But if we learn nothing else from this case, we should certainly understand that the strength and reasonableness of inferences often lies in the eye of the beholder.

To be sure, today's holding simply permits a malicious prosecution action to move forward, without in any way suggesting Citizens will ultimately prevail.  But this is precisely the sort of harm the anti-SLAPP statute was designed to target and precisely the result the procedure is designed to forestall.  Based on Citizens's conduct, this case was "arguably meritorious" when it was filed.  (See Wilson, supra, 28 Cal.4th at p. 822.)  Although plaintiffs ultimately did not succeed when the law changed, I believe the anti-SLAPP procedure should have enabled them and their counsel to defeat this speculative malicious prosecution action at an early stage of litigation.

Id. at 9-10 (emphasis added).  I share Justice Dato's assessment of the facts of this case. 

Conducting appellate oral arguments remotely (Updated)

As I mentioned the other day, the Supreme Court has ordered that counsel arguing the cases on the April calendar (and all future calendars until further notice) will appear "remotely via video conference, by telephone conference, or by other electronic means."  Matthew Steigler of CA3blog has posted some tips for presenting appellate oral arguments by phone, based on his recent experience helping prepare for such an argument in the Third Circuit.  The advice seems sound.  A remote appellate argument before a multi-judge panel will not be the same as a CourtCall appearance before a single superior court judge.

UPDATE:  Benjamin Glassman of Sixth Circuit Appellate Blog also offers tips for advocates on telephonic appellate arguments, based on his personal experience.  An excerpt:

Oralists and judges alike are deprived of the visual cues that can make argument so efficient and effective—body language and facial expressions that indicate confusion or disagreement or interest. Just asking and answering questions become more challenging.  These challenges make the strategy behind oral argument preparation all the more important.

[h/t How Appealing]

A true appellate unicorn: City of Warren Police and Fire Retirement Sys. v. Natera Inc. (Updated)

There has been a unicorn sighting in San Mateo County.  The Court of Appeal (First Appellate District, Division Two) filed an opinion in a securities class action asserting claims under federal law that was not removed to federal court!  City of Warren Police and Fire Retirement System v. Natera Inc., ___ Cal.App.5th ___ (Feb. 28, 2020; pub. ord. Mar. 23, 2020). 

In other news, the Chief Justice issued a statewide order continuing all jury trials for 60 days, with a concomitant extension of the 5-year rule for all civil matters (and the 3-year rule for post-new trial and post-appeal cases).  She has also authorized all six appellate districts to extend filing deadlines as they see fit.  (At some point, it would be very helpful to law firm operations if the appellate courts moved to all-electronic systems for both filing and service copies of documents.)  See this post (evening of March 23) and this post (morning of March 24) from At the Lectern. As of this writing, the latest emergency order of the Los Angeles County Superior Court is available here.  Essentially, all courthouses are closed to the public until further notice.

UPDATE:  SCOCAblog has a very interesting post on the Chief Justice's authority (statutory, constitutional, and inherent) to issue a statewide order continuing all jury trials. 

Court of Appeal addresses American Pipe/China Agritech tolling: Montoya v. Ford Motor Co.

In Montoya v. Ford Motor Co., ___ Cal.App.5th ___ (Mar. 12, 2020), the Court of Appeal (Fourth Appellate District, Division Three) reversed a $58,000 judgment in an individual action for breach of the implied warranty of merchantability, finding the claim time-barred.  The trial court reasoned that the statute of limitations had been tolled during the pendency of two prior putative class actions, but the Court of Appeal disagreed. 

Plaintiff's four-year limitations period began to run on November 30, 2005, when he knew or should have known his Ford Excursion was a lemon.  Slip op. at 2.  A proposed class action was filed on April 21, 2006 and was pending for 199 days before class certification was denied.  Id.  Notice was not provided to the class.  See id.  Had that been the only pending class action, plaintiff's four-year limitations period would have run on approximately June 17, 2010 (November 30, 2009 plus 199 days).  But a second class action was filed on January 8, 2010.  This case settled in 2013 on a classwide basis, with notice to the class and an opt-out deadline of April 22, 2013.  Id. at 4-5.  Plaintiff opted out on April 19, 2013 and filed an individual action on June 14, 2013.  Id. at 5.  That action went to trial, and plaintiff won.  Id.

So far, this procedure seems totally normal.  The second case embraced the claims of all persons whose limitations periods had not yet run, including plaintiff, and the notice probably informed those class members that they if they opted out, they could pursue their claims individually.  (The opinion does not mention what the notice said about that, but such language is typical.)  The opt-out procedure exists precisely in order to permit the class members to file and pursue their own litigation if they wish to do so, so that they can control the litigation themselves and make their own decisions about settling or going to trial. 

The Court of Appeal, however, held that plaintiff was out of luck and not entitled to sue.  According to the Court, even if the first putative class action tolled his limitations period, the second putative class action did not have the same effect.  Hence, to preserve his right to pursue individual litigation, plaintiff would have had to file a separate action on top of the class case commenced on January 8, 2010, or sought to intervene and become a party to that action. The Court considered this outcome more "efficient" than the prospect of the exact same suit being filed in 2013. 

The Court began its analysis with an interesting chronological summary and discussion of American Pipe, Crown Cork, and China Agritech (U.S. Supreme Court decisions) as well as two California Supreme Court decisions, Jolly and Fireside Bank.  (This blog's 2007 coverage of Fireside Bank is at this link.)  The Court then explained its reasoning as follows:

From our canvass of the interaction between class actions and statutes of limitation as explained by both our federal and state Supreme Courts, we think the idea of tolling an individual action during the period of a second class action to be untenable.  Tolling during a second class action – particularly this second class action – defeats the objectives of judicial economy and efficiency that were the foundations of American Pipe.  It overlooks the problem of endless tolling that informed and suffused the China Agritech opinion.

Judicial economy and efficiency are defeated because second class action tolling reintroduces the problem of one-way intervention the 1966 amendments to Federal Rule 23 were intended to cure.  One-way tolling was an “abuse” of the system because it gave putative class members an incentive to wait and see what the trial court would do (or at least signal what it might do) with the ostensible class action before it.  If the merits looked bad, class members could bail on the class action and pursue their own actions elsewhere. 

And that is precisely what happened here.  The Crown Cork court’s anticipation was that a putative class member might receive notice a class action has not reached class status so the member would have the opportunity to opt out and bring an individual action.  But Montoya waited more than four years after Class Action 1 failed to be certified to bring his individual action.  Only when Class Action 2 ended with a proposed settlement that would have afforded Montoya – had he stayed in Class Action 2 – only a fraction of the recovery he would later obtain suing individually, did he finally sue.

Slip op. at 12-13. 

The problem with this reasoning is that no notice was given to the class in Class Action 1.  What is more, in Class Action 2, the parties agreed to resolve the action through certification of a settlement class, which was apparently expressly defined to include class members with (arguably) time-barred claims, and to afford all of those class members notice and opt-out rights.  As a result, the defendant waived the potential one-way intervention problem described in the opinion.  See Fireside Bank, 40 Cal.4th at 872.  Moreover, in the settlement context, class members are supposed to be considering whether they think they can get a better result on the merits by opting out.  That is not a one-way intervention problem, but a mechanism to protect the class.  If numerous class members opt out, that would signal to the trial court that the settlement might be unfair to the class, and it might not be approved at all. 

The Court of Appeal's reasoning flips the opt-out process on its head and could end up barring meritorious individual suits by opt-outs, even though a central purpose of the opt-out process is to enable such individual suits.   Also, it seems to me that by agreeing to certification of a settlement class embracing this specific plaintiff's claims, and by agreeing to a settlement notice that probably advised the class that if they opted out, they could bring an individual action, the defendant waived the right to assert, and/or was estopped from asserting, a statute of limitations defense in any such individual action. 

It will be interesting to see whether the Supreme Court shows any interest in this case.  Further guidance is plainly needed on the interplay between the five decisions canvassed in this opinion and to what extent principles from the three U.S. Supreme Court decisions apply in California. The only other published California opinion construing China Agritech is Fierro v. Landry’s Restaurant Inc., 32 Cal.App.5th 276 (2019), which the Court of Appeal found distinguishable.  Slip op. at 13.   It appears that no review petition was filed in Fierro in 2019.  In 2018, Fierro was a "grant and transfer," in which the Supreme Court granted review and directed the Court of Appeal to vacate its earlier opinion and "reconsider the cause" in light of China Agritech (docket).  That led to the 2019 opinion, with no further proceedings in the Supreme Court after that.

Supreme Court to consider public prosecutors' intra-state territorial reach under the UCL: Abbott Laboratories v. Superior Court

The Supreme Court's April oral argument calendar, announced last week, includes a full slate of cases.  In other words, the Court will conduct business as usual—except that the arguments will take place in San Francisco (not Los Angeles, as previously planned), and the parties' counsel will participate remotely.  The arguments will be live-streamed as usual, so we can observe them from the comfort of our homes while "sheltering in place."  (As for filing deadlines, on Friday, the Court extended most of them by 30 days.) 

One case set for argument involves the UCL.  On Tuesday, April 7, 2020 at 9:00 a.m., the Court will hear Abbott Laboratories v. Superior Court (Rackauckas), no. S249895, which presents the following question (according to the Court's online docket): 

Does a district attorney have the authority to recover restitution and civil penalties under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) for violations occurring outside his or her territorial jurisdiction?

On a 2-1 vote, the Court of Appeal (First Appellate District, Division One) said no.  From the introduction: 

The California Constitution designates the Attorney General the “chief law officer of the State” (Cal. Const., art. V, § 13), and consistent with this constitutional provision, the Attorney General “has charge, as attorney, of all legal matters in which the State is interested” (Gov. Code, § 12511) and also “shall ... prosecute or defend all causes to which the State ... is a party in his or her official capacity.” (Gov. Code, § 12512.) The District Attorney, on the other hand, is a county officer whose territorial jurisdiction and power is limited accordingly. Though section 17204 confers standing on district attorneys to sue in the name of the people of the State of California, it cannot constitutionally or reasonably be interpreted to grant the District Attorney power to seek and recover restitution and civil penalty relief for violations occurring outside the jurisdiction of the county in which he or she was elected. A contrary conclusion would permit the District Attorney to usurp the Attorney General's statewide authority and impermissibly bind other district attorneys, precluding them from pursuing their own relief. Thus, in the absence of written consent by the Attorney General and other county district attorneys, the District Attorney must confine such monetary recovery to violations occurring within the county he serves.

Abbott Labs. v. Superior Court, 25 Cal.App.5th 1, 9 (2018). 

Justice Dato, dissenting, explained, first of all, that the "proper time" to determine the scope of any monetary or injunctive relief would be after liability has first been determined.  Id. at 33.  He further explained: 

The UCL is an exceedingly broad remedial statute designed to encourage multiple avenues of enforcement. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949-950.) Indeed, a district attorney can prosecute a UCL claim based even on alleged violations of a statute that provides a different government agency with the sole authority to bring enforcement actions. (People v. McKale (1979) 25 Cal.3d 626, 632-633.) And as the majority recognize, “[t]he civil remedies of the [UCL] were enacted because criminal remedies were too often inadequate to protect the public, especially where corporate defendants were concerned.” (People v. E.W.A.P. Inc. (1980) 106 Cal.App.3d 315, 321.) Pursuing litigation against corporate defendants is expensive, and the Legislature was doubtless aware that both financial and political considerations may sometimes discourage a public prosecutor from undertaking such a case. Consistent with the UCL's broad remedial purposes and the perceived need for vigorous enforcement, there is nothing unconstitutional about the Legislature's decision to permit and encourage multiple public prosecutors with overlapping lines of authority on the theory that more enforcement in this context is better than less.

Id. at 35; see also In re Facebook, Inc., Consumer Privacy User Profile Litig., 354 F.Supp.2d 1133 (N.D. Cal. 2019) ("the majority opinion in Abbott Labs., which strained to narrow California's plain statutory language, is likely wrong").

As of this writing, the Supreme Court has not yet posted copies of the briefs online, but when that happens, the briefs will be available here. 

[Hat tip to At the Lectern, which is doing a good job tracking all the Supreme Court's orders dealing with the COVID-19 crisis.]

An appellate unicorn? DHI Cherry Glen Associates, L.P. v. Gutierrez

At the height of my work on this blog, I used to wait with bated breath for the Supreme Court to post the results of its weekly conferences.  It was so exciting every week, especially before the Court altered the format of its reports.  Used to be, the conference actions were listed in order by category, with the Court's proverbial A-list, B-list and C-list cases listed in separate alphabetical groups.  Or at least, that's how I interpreted the reports. It was very interesting and informative to see which cases made it into the B-list (so close!) and which were relegated to the purgatory of habeas corpus denials and attorney accusations. 

A few years ago, the format of the reports was changed.  Now, you can see the A-list cases in the first grouping, followed by a long alphabetical list of all the rest of the cases.  The newly-formatted reports were much less interesting, and I gradually stopped reading them as regularly as I used to.  (Also, the Court started posting the lists the day after the conferences, instead of the same day, which made them much less useful to your roving reporter.)

Well, this week, "sheltering in place" at home, with less to do than normal, I checked the conference reports again.  Lo and behold, something miraculous had happened (on March 11, 2020).  There in the A-list was a case in which the Supreme Court had granted a publication request!  That almost never happens.  (Usually, if the Court of Appeal denies a publication request, that's the end of it, even though technically speaking there's one last chance because all denied publication requests are forwarded to the high court for what is almost always a final no.  See Cal. Rules of Ct., rule 8.1120(b).)  What could this unicorn be? 

In DHI Cherry Glen Associates, L.P. v. Gutierrez, ___ Cal.App.5th Supp. ___ (Nov. 15, 2019; pub. ord. Mar. 11, 2020), the Appellate Division of the Yolo County Superior Court reversed an unlawful detainer judgment.  The Appellate Division asked the Supreme Court to publish (docket). 

This may be a notable case in the landlord-tenant arena, but it wasn't really a unicorn after all.  Too bad, because we could use some unicorns and some rainbows right about now.   A storm is in the forecast for the weekend. 

Court orders to manage the COVID-19 crisis (Updated)

This past Tuesday was the first day of the "shelter in place" order in San Francisco, and probably my last day physically in the office for a while.  (The "shelter in place" order permits businesses to conduct "Minimum Basic Operations" onsite, including "[t]he minimum necessary activities to maintain the value of the business's inventory, ensure security, process payroll and employee benefits, or for related functions" and "[t]he minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences," both of which I was endeavoring to do for my firm on Tuesday.  In addition, the order exempts "Essential Businesses," which includes "[p]rofessional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities," whatever that means.) 

Meanwhile, I had made a promise to try to finalize and file an amicus curiae letter in support of review in a pending Supreme Court case.  (I'll do a post about that case later. UPDATE Apr. 14, 2020: See this blog post.)  As of Tuesday, the Court's requirement for paper copies remained in place.  So, we decided to mail the paper copies instead of sending a messenger, which we would normally do.  Then, on Wednesday, the Supreme Court suspended the paper copies requirement.  (May I say that this change is one I hope "sticks" after this is all over.  The N.D. Cal. also suspended the requirement to deliver paper courtesy copies to chambers, yahoo!) 

Things are changing so fast, and every day brings new orders, with no consistency (yet) across the state's judicial branch or among the federal district courts.  All of us have pending cases in different courts and are wondering whether and when those matters will be directly affected by sua sponte court-ordered continuances or courthouse closures.  Here are some useful links: 

• "How COVID-19 Is Impacting the California Courts: Roundup of Services," The Recorder (Mar. 17, 2020).  The Recorder appears to be regularly updating this story as new orders are issued.  Also, the Recorder has lifted its paywall for all stories related to the crisis.  Thank you to the Recorder for doing that. 
• California Supreme Court's list of emergency orders. Evidently, the Supreme Court has to approve requests by the various Superior Courts for extensions and closures.  As a result, this list is a useful tool, but personally I would recommend visiting the page of the particular Superior Court in question to double-check exactly what has been ordered. 
• One Legal's "California court updates - Covid 19" page.  The attorney service One Legal appears to be collecting useful updates on this page, with links. 

Good luck to everybody in managing life during this strange period of time.  A pandemic, really? That's for science fiction novels. 

UPDATE Mar. 21, 2020:  In addition to the links above, Consumer Attorneys of California has this resource, which seems to be accessible to members and non-members alike:

• CAOC's Coronavirus-Related Court Announcements

UCL jury trials in public prosecutor actions? Supreme Court to decide in Nationwide Biweekly v. Superior Court

On February 5, 2020, the Supreme Court heard oral argument in Nationwide Biweekly Administration v. Superior Court, no. S250047, involving whether a jury trial right exists in UCL public prosecutor actions seeking statutory penalties.  The Court of Appeal (First Appellate District, Division One) held that there is a jury trial right on liability, but that the amount of civil penalties, and the propriety of other equitable remedies (such as injunctive relief), is for the court to determine. Nationwide Biweekly Administration, Inc. v. Superior Court, 24 Cal.App.5th 438 (2018). 

We will learn the Supreme Court's take on these questions by May 5, 2020 (ninety days after February 5, 2020).  As a practical matter, that means the opinion will be issued by no later than May 4, 2020 (the last Monday before the deadline).

The video of the oral argument is available at this link.  The argument took place in Sacramento, which will not be happening again for a while.  These are extraordinary times.  Here in San Francisco, we are "sheltering in place" as of early Tuesday.  Everyone please stay safe.