The UCL Practitioner

UCL class certification case set for oral argument: Noel v. Thrifty Payless

The Supreme Court has posted its early May argument calendar. The case of Noel v. Thrifty Payless, no. S246490, will be heard on Wednesday, May 8, 2019 at 9:00 a.m. in San Francisco.  As I reported earlier this month, in Noel, the Supreme Court will consider the ascertainability element of class certification in the specific context of retail sales to consumers. 

This should be an interesting argument, and I will try to attend and report on it here if my work schedule permits. 

Update on Noel v. Thrifty Payless

Just over a year ago, in March 2018, the Supreme Court granted review in Noel v. Thrifty Payless, no. S246490. Noel is a false advertising case under the UCL, CLRA and FAL (see this blog post).  It presents the following question (according to the Supreme Court's docket):

Must a plaintiff seeking class certification under Code of Civil Procedure section 382 or the Consumer[s] Legal Remedies Act demonstrate that records exist permitting the identification of class members?

The Court of Appeal (First Appellate District, Division Four) said yes to this question, and therefore concluded that the proposed class of of approximately 20,000 persons who purchased a certain type of inflatable pool at Rite-Aid could not be certified. Noel v. Thrifty Payless, Inc., 17 Cal.App.5th 1315 (2017).

This holding appears to run counter to Daar v. Yellow Cab Co., 67 Cal.2d 695 (1967), which pronounced—50 years before Noel—that "[i]f the existence of an ascertainable class has been shown, there is no need to identify its individual members in order to bind all members by the judgment." Id. at 706. 

Briefing was completed in November 2018.  Numerous amicus briefs were filed.  Last month, on March 15, 2019, the Supreme Court notified the parties that the case "could [be] set ... for argument within the next few months."  Presumably, that means the May or June argument calendars, because the Court does not hear arguments in July or August. This case will be one to watch. 

Ninth Circuit reverses nationwide class action settlement: In re Hyundai and Kia Fuel Economy Litigation

On Tuesday, the Ninth Circuit handed down a lengthy opinion in a UCL and CLRA class action in which it reversed, on a 2-1 vote, the district court's order granting certification of a nationwide settlement class.  In re Hyundai and Kia Fuel Economy Litigation, ___ F.3d ___ (9th Cir. Jan. 23, 2018). 

The opinion extensively analyzes Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) (discussed in this blog post), in which certification of a similar nationwide class was also reversed.  

I have not yet had a chance to fully absorb the new opinion, but Perry Elizabeth Cooper wrote up an interesting report at bna.com.  I would imagine that a petition for en banc rehearing is in the offing, and it might even be granted.  On the other hand, en banc rehearing was denied in Mazza, which was also decided on a 2-1 vote.

Ninth Circuit holds Rule 23(f) time limit not jurisdictional: Lambert v. Neutraceutical Corp.

In Lambert v. Neutraceutical Corp., ___ F.3d ___ (9th Cir. Sept. 14, 2017), the Ninth Circuit considered a UCL, FAL and CLRA action against the manufacturer of an "aphrodisiac dietary supplement."  Slip op. at 5.  The complaint alleged that the defendant sold the product in violation of certain FDA regulations and that the product was falsely labeled.  Id. 

The district court "initially granted class certification on the basis of the full refund damages model. That model applies when a product is shown to be worthless, and damages may be calculated by multiplying the average retail price by the number of units sold."  Id. at 6.  Subsequently, the defendant moved to decertify the class, and a different judge granted the motion.  Id.  Plaintiff moved for reconsideration, which was denied.  Id. at 7.  Within 14 days thereafter, plaintiff filed a Rule 23(f) petition.  Id. at 8. 

The Ninth Circuit held that the fourteen-day deadline to file a Rule 23(f) petition is "not jurisdictional, thus equitable exceptions apply."  Slip op. at 1.  In particular, "a motion for reconsideration filed within the Rule 23(f) deadline will toll the deadline," as will "additional equitable circumstances."  Id. at 1, 10.  In a lengthy discussion, the Court concluded that the plaintiff's Rule 23(f) petition was timely.  Id. at 9-21.

Then, the Court turned to the merits, and held that the district court erred in granting the defendant's motion to decertify the class.  Slip op. at 21-25.  Variations in damages do not defeat class certification; UCL, FAL, and CLRA damages (or restitution) calculations need not be precise; and the plaintiff's proposed "full refund" damages model was a "workable method" to determine and award damages.  See id.

This analysis relies heavily on Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) (discussed in this blog post) and Leyva v. Medline Industries Inc., 716 F.3d 510 (9th Cir. 2013) (discussed here).

New UCL class certification opinion: Kizer v. Tristar Risk Management

In Kizer v. Tristar Risk Management, ___ Cal.App.5th ___ (Jun. 26, 2017; pub. ord. Jul. 26, 2017), the Court of Appeal (Fourth Appellate District, Division Three) affirmed an order denying class certification of Labor Code claims arising out of the defendant's alleged misclassification of its claims examiners, and of the UCL "unlawful" prong claim stemming from that. 

Basically, the Court of Appeal reasoned that misclassification, standing alone, is not unlawful; instead, a violation occurs only when the misclassified employees are denied overtime pay (or other statutory protections afforded to non-exempt employees).  Slip op. at 12-20.  Even if the elements relevant to assessing the applicability of the administrative exemption might be amenable to common proof, this was not sufficient for class certification, because the plaintiffs had failed to offer any proof of a uniform policy policy or practice to deny overtime pay to the claims examiners.  See id.

For similar reasons, the Court of Appeal affirmed the ruling as to the UCL claim.  Id. at 20-23.  The plaintiffs relied on Tobacco II, arguing that individualized proof of causation and injury are not elements of a UCL claim.  Id. at 21-22.  But the Court of Appeal found a more basic problem in the plaintiffs' failure to introduce any common proof of an unlawful practice (i.e., denying overtime pay to claims examiners):

As explained above, and contrary to Plaintiffs’ contention, the trial court did not deny Plaintiffs’ class certification motion based on their failure to present individualized proof of injury by each potential class member.  Rather, the court denied the motion because Plaintiffs failed to satisfy the commonality requirement by presenting evidence to show they could establish through common proof that Tristar required claims examiners to work overtime.  Substantial evidence supports that finding and it is consistent with the governing legal standards.

Id.  at 23. 

The Kizer opinion is one for the list of post-Tobacco II class certification decisions.  (See my prior series of posts: "Nine post-Tobacco II decisions," "A tenth post-Tobacco II opinion," "New UCL class certification decision," and "A thirteenth post-Tobacco II opinion.") 

Although the opinion cites Cohen v. DIRECTV, Inc., 178 Cal.App.4th 966 (2009) and Davis‑Miller v. Automobile Club of Southern California, 201 Cal.App.4th 106 (2011) (discussed in these blog posts), I would still put in on the plaintiffs' side of the ledger.  Unlike those cases, Kizer did not hold that certification could be properly denied due to predominance of non-common questions as to reliance or injury (which are not even elements of a UCL claim).  Rather, Kizer focused on whether the unlawful conduct itself could be established through common proof.  In so holding, Kizer also relied heavily on Steroid Hormone Product Cases, 181 Cal.App.4th 145 (2010) (discussed in this blog post), which illustrates the proper focus of the class certification inquiry in a UCL "unlawful" prong case. 

"Dole Buyers Get Mixed Win In 9th Circ. Natural Label Ruling"

Last week, I was quoted in an article in Competition Law360 (subscription) on the Ninth Circuit's unpublished opinion in Brazil v. Dole Packaged Foods, LLC, 2016 WL 5539863 (9th Cir. Sept. 30, 2016).

The article begins:

Consumers won a major false advertising battle Friday when the Ninth Circuit ruled the label on Dole's "all natural" frozen berry products may be misleading, but the panel's finding that the decertified class hadn't shown it could prove classwide damages greatly limits what the buyers can recover if they ultimately prevail, attorneys say.

As I told the reporter, I think the opinion mistakenly assumes that there are only two ways to measure UCL restitution, which is not the law in California.  Also, the class certification portion of the opinion seems to me inconsistent with Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) (discussed in this blog post).  The analysis assumes that every unnamed class member would have to show that they were misled, which is inconsistent with both Pulaski and In re Tobacco II Cases, 46 Cal.4th 298 (2009), which this opinion does not cite (it cites only the more recent Tobacco II opinion on remand, discussed here).  This non-precedential opinion should be limited to its facts.

New UCL class certification opinion: Nicodemus v. Saint Francis Memorial Hospital

In Nicodemus v. Saint Francis Memorial Hospital, ___ Cal.App.5th ___ (Sept. 14, 2016; pub. ord. Oct. 6, 2016), the plaintiff asserted a UCL "unlawful" prong claim based on the defendants' violations of Evidence Code section 1158, which limits the amount a medical provider can charge for producing copies of medical records when requested by an attorney.  The Court of Appeal (First Appellate District, Division Four) reversed the trial court's order denying class certification of this claim. 

The opinion reconfirmed the rule that a class is ascertainable even if it includes some members that might have been uninjured by the defendant's unlawful conduct.  Slip op. at 10-17.  Notably, in so holding, the opinion distinguished Hale v. Sharp Healthcare, 232 Cal.App.4th 50 (2014), in which a class was decertified "after nearly three years of litigation" because "it was indisputably demonstrated that there was simply no way to avoid a complicated individualized inquiry to determine not just eligibility for damages but to prove liability."  Nicodemus, slip op. at 15 (citing Hale, 232 Cal.App.4th at 54, 63-64).  In contrast, if "[t]he potential class members may be readily identified by reference to" the defendant's records, "speculation" that some may not have been harmed "goes to the merits of each class member's recovery" and would be "an inappropriate focus for the ascertainability inquiry."  Id. at 16.  

The opinion also held that "[t]he predominance of common questions requirement is patently satisfied here"  Id. at 18.  After setting forth the relevant law, the Court explained: "The common question here is the application of section 1158 to HealthPort's uniform practices in response to attorney requests for medical records.  The fact that each class member ultimately may be required to establish his or her records request was submitted before or in contemplation of litigation does not overwhelm the common question regarding those uniform copying practices.  The trial court erred in ruling otherwise."  Id. at 20 (footnote omitted).  Put another way, just as the Supreme Court held in Brinker, the “community of interest” element of class certification is “patently satisfied” if the evidence shows that the defendant has a uniform policy or practice and that policy or practice is alleged to violate California law.  See id. at 18-20. 

Finally, the opinion considered the argument that the class was overbroad because one of the defendants, Saint Francis, would be liable only to a portion of it.  The class was defined to include all patients whose medical records requests were fulfilled by HealthPort, and Saint Francis was only one of many medical providers who contracted with HealthPort for this purpose.  The Court of Appeal disagreed with the trial court's conclusion that this presented an impediment to class certification.  Slip op. at 20-22. The Court held that certification is proper even if some class members may have a claim against one, but not all, named defendants, noting that these were the facts of one of the Supreme Court's leading class certification precedents, Vasquez v. Superior Court, 4 Cal.3d 800 (1971).  Nicodemus, slip op. at 21 (citing Vasquez, 4 Cal.3d at 805, 810-11, 815).  The Court also rejected the argument that the plaintiff was obligated to join all the other medical providers who used HealthPort, as well as the argument that Saint Francis risked being held responsible for the wrongdoing of those other providers.  Id. at 22.

(I filed a publication request on behalf of CAOC in this case.)

New Ninth Circuit class certification opinion: Pulaski & Middleman, LLC v. Google, Inc.

In Pulaski & Middleman, LLC v. Google, Inc., ___ F.3d ___ (9th Cir. Sept. 21, 2015), the Ninth Circuit reversed an order denying class certification of UCL and FAL claims.

Consistent with its earlier opinions Stearns and Yokoyama, as well as the California Supreme Court's Tobacco II opinion, the Court held that variations in the amount of recoverable restitution do not defeat class certification.  Slip op. at 10-17 (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011); Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010); In re Tobacco II Cases, 46 Cal.4th 298 (2009)). 

Rather, "restitution is available on a classwide basis once the class representative makes the threshold showing of liability under the UCL and FAL."  Id. at 14.  That "threshold showing" requires proof only that "members of the public are likely to be deceived" by the defendant's conduct.  Id. at 11 (quoting Tobacco II, 46 Cal.4th at 312).

The Court also held (as it had done previously in Leyva and Jimenez) that "differences in damage calculations do not defeat class certification," even after the U.S. Supreme Court's Comcast opinion.  Slip op. at 17 (citing Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013); Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014); Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013)).

Finally, the Court held that the plaintiffs' proposed method for calculating restitution was not "arbitrary."  Slip op. at 18-20.  This section of the opinion contains an interesting discussion of the different possible ways to measure restitution under the UCL, and considers both Colgan v. Leatherman Tool Group, 135 Cal.App.4th 663 (2006) (see this blog post) and Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310 (2011).

New class certification opinion: Safeway, Inc. v. Superior Court (Esparza)

In Safeway, Inc. v. Superior Court (Esparza), ___ Cal.App.4th ___ (Jul. 22, 2015), the Court of Appeal (Second Appellate District, Division Four) refused to disturb an order granting class certification of a UCL claim predicated on violations of Labor Code section 226.7, which requires employers to pay premium wages for missed meal periods.  

The trial court granted class certification, and the Court of Appeal affirmed, even though the defendant filed more than 2,000 class member declarations in an effort to oppose certification.  Slip op. at 12.  (Just imagine the number of hours it took to gather those.  Probably equivalent to an attorney billing full time for a couple of years.)

The Court of Appeal reached the merits of the UCL claim to some degree, finding it necessary in order "to adjudicate the propriety of a class action."  Id. at 15 (citation omitted).  The Court concluded:

[A] UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer’s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.  (See Cortez, supra, 23 Cal.4th at p. 177 [under UCL, employer’s failure to pay earned wages was an unlawful business practice]; Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206 [under UCL, California employer’s failure to pay overtime wages to out-of-state employees was an unlawful business practice]; Tomlinson v. Indymac Bank F.S.B (2005) 359 F.Supp.2d 891, 895-897 [employer’s failure to pay meal break premium wages was an unlawful business practice under the UCL].)

Slip op. at 18.  The Court also held that the conduct did not fall within any Cel-Tech safe harbor.  Id. at 19-20.

As for whether this UCL claim was suitable for class treatment, the Court concluded it was, relying heavily on Justice Werdegar's concurrence in Brinker.  Slip op. at 23-25.  Most notably, the Court adopted the presumption, recognized by Justices Werdegar and Liu, that if the employer's records show no meal period taken when one was required, this creates a rebuttable presumption that a violation occurred:

Here, establishing that a significant number of employees accrued unpaid meal break premium wages is capable of common proof, in view of petitioners’ time punch data and the presumption identified by Justice Werdegar.  There is no dispute that the applicable wage order is Wage Order 7-2001 (Cal. Code Regs., tit. 8, § 11070), which obliges employers to provide at least one 30-minute meal break for shifts of over five hours (absent a waiver available only in limited circumstances) (id., subd. (11)(A)), requires employers to record meal breaks (id., subd. (7)(A)(3)), and permits an “on duty” meal break only with the employee’s express written agreement (id., subd. (11)(C)).  The time punch data and records identified by [plaintiffs' accounting expert] are capable of raising a rebuttable presumption that a significant portion of the missed, shortened, and delayed meal breaks reflected meal break violations under section 226.7.  Because that fact potentially can be shown without consideration of an unwieldy number of individualized issues, the record shows that the facts necessary to establish liability are capable of common proof.

Slip op. at 25 (emphasis added).

The whole opinion is worth a good read. 

Class certification order in Chavez v. Blue Sky Natural Beverage Co. published in F.R.D.

Judge Walker's recent nationwide class certification ruling is now available on Westlaw and has been assigned a Federal Rules Decisions citation:  Chavez v. Blue Sky Natural Beverage Co., ___ F.R.D. ___, 2010 WL 2528525 (N.D. Cal. 2010).  My earlier blog post on this decision is here.

Judge Walker grants nationwide class certification in Chavez v. Blue Sky Natural Beverage Co.

Many thanks to the blog reader who forwarded Chief Judge Vaughn R. Walker's recent class certification order in Chavez v. Blue Sky Natural Beverage Co., 2010 U.S. Dist. LEXIS 60554 (N.D. Cal. Jun. 18, 2010).  The order does not appear to be available on Westlaw yet.  UPDATE:  The order is now available on Westlaw and has also been assigned a Federal Rules Decisions cite: Chavez v. Blue Sky Natural Beverage Co., ___ F.R.D. ___, 2010 WL 2528525 (N.D. Cal. 2010).

My prior blog post on this case is at this link.

Notably, Judge Walker followed Tobacco II's holding that only the named class representatives, and not the unnamed class members, must satisfy the UCL's post-Prop. 64 standing requirement.  Chavez, 2010 U.S. Dist. LEXIS 60554 at *27-*28, *37 (citing In re Tobacco II Cases, 46 Cal.4th 298, 324 (2009)).  He found no Article III bar to applying Tobacco II in federal court.  See id. at *27-*28. 

He further followed Tobacco II in holding that the plaintiffs' UCL claim (based on misrepresentations of the geographic origin of goods) did not require individualized proof of reliance, actual deception or injury.  Id. at *29 (citing Tobacco II, 46 Cal.4th at 320).  In granting class certification, he followed In re Steroid Hormone Product Cases, 181 Cal.App.4th 145 (2010), rather than Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009).  Chavez, 2010 U.S. Dist. LEXIS 60554 at *29-*30. 

In other words, this decision is as significant as the original nine post-Tobacco II cases. 

Also of interest, the plaintiffs submitted the report of a marketing expert in support of class certification on the "materiality of [the defendant's] product labeling and marketing."  Chavez, 2010 U.S. Dist. LEXIS 60554 at *32.  Materiality was relevant to the CLRA and common-law fraud claims, which Judge Walker certified based on the doctrine of presumed reliance.  Id. at *30-*31.  Judge Walker considered the expert report in accordance with the standards set forth in the new Dukes v. Wal-Mart en banc opinion.  Id. at *32 (citing Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 603 & n. 22 (9th Cir. 2010)).

I am occasionally asked about the use of expert testimony in false advertising cases to establish whether a particular misrepresentation or omission was material (for CLRA purposes) or likely to deceive a reasonable consumer (for UCL purposes).  It makes a lot of sense as a theoretical matter (although it is not required, see Brockey v. Moore, 107 Cal.App.4th 86 (2003)).  Up to now, however, the only case I could think of actually involving such testimony was Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496 (2003).  The unpublished portion of that decision discussed the expert testimony in depth (see this blog post). 

Another new opinion interpreting Tobacco II: Cohen v. DIRECTV, Inc.

Another opinion interpreting Tobacco II has been published this week:  Cohen v. DIRECTV, Inc., ___ Cal.App.4th ___ (Sept. 28,2009; pub. ord. Oct. 28, 2009).   Those of you who attended the Consumer Attorneys of San Diego Class Action Symposium last week may remember that my co-panelist, Ray Bertrand, presciently mentioned this (then-unpublished) opinion during our segment.

In Cohen, the Court of Appeal (Second Appellate District, Division Eight) affirmed the trial court's denial of class certification of CLRA and UCL claims.  In so doing, the Court misinterpreted Tobacco II. 

The case alleged that DIRECTV advertised its HD satellite television service "without the intent to provide the customers" with the advertised levels of resolution, and "that DIRECTV switched its HDTV channels to a lower 'resolution,' reducing the quality of the television images it transmits to its subscribers."  Slip op. at 3.  The trial court denied certification of both the CLRA and the UCL claims because (among other reasons) it determined that actual reliance was an element of both claims.  Id. at 7. 

As for the UCL claim, the trial court held (in November 2007):

Prior to Prop 64 the standard for fraud was "likely to be deceived." However since Prop 64, amendments require the plaintiff to have suffered injury in fact and lost money or property.  A conclusion may be drawn that class members must have actu[a]lly been deceived. 

Id. (alteration in original; emphasis added).  This, of course, is precisely the opposite of the Supreme Court's holding in Tobacco II.  Yet, in Cohen, the Court of Appeal held that the trial court "did not apply an improper criterion in addressing the class certification issue."  Slip op. at 16.  That holding is, respectfully, wrong.

This is how the Court of Appeal described Tobacco II in Cohen:

... Tobacco II held that, for purposes of standing in context of the class certification issue in a “false advertising” case involving the UCL, the class members need not be assessed for the element of reliance. Or, in other words, class certification may not be defeated on the ground of lack of standing upon a showing that class members did not rely on false advertising. In short, Tobacco II essentially ruled that, for purposes of standing, as long as a single plaintiff is able to establish that he or she relied on a defendant’s false advertising, a multitude of class members will also have standing, regardless of whether any of those class members have in any way relied upon the defendant’s allegedly improper conduct.

Slip op. at 15 (italics  in original; bold added).  

That is not what Tobacco II held.  As you may remember, both the trial court and the intermediate appellate court in Tobacco II had held that, "post Proposition 64, individual issues of exposure to the allegedly deceptive statements and reliance upon them, predominated over class issues." Tobacco II, 46 Cal.4th at 311 (describing lower courts' holding).  In Tobacco II, class certification was not denied "on the ground of lack of standing," but rather because common questions would not predominate on the issue of reliance.  That is the ruling Tobacco II expressly reversed.   Tobacco II goes far beyond standing (as will be discussed in more detail below).

Nor did Tobacco II hold that if the class representative has standing, "a multitude of class members will also have standing."  Slip op. at 15.  On the contrary, Tobacco II holds that "standing requirements are applicable only to the class representatives, and not all absent class members." 46 Cal.4th at 306 (emphasis added).  In other words, the class representative's standing does not confer standing on the unnamed class members; rather, the unnamed class members need not meet the standing requirements at all:  "[A]ccepted principles of class action procedure ... treat the issue of standing as referring only to the class representative and not the absent class members.” Id. at 321.

Cohen also held that the UCL does not "authorize an award for injunctive relief and/or restitution on behalf of a consumer who was never exposed in any way to an allegedly wrongful business practice."  Slip op. at 14.  The Supreme Court held the opposite in Tobacco II:

[Business and Professions Code section 17204], construed in light of the “concern that wrongdoers not retain the benefits of their misconduct” (Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d 442, 452, 153 Cal.Rptr. 28, 591 P.2d 51) has led courts repeatedly and consistently to hold that relief under the UCL is available without individualized proof of deception, reliance and injury. (E.g., Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545; Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211, 197 Cal.Rptr. 783, 673 P.2d 660.)

Tobacco II, 46 Cal.4th at 321 (emphasis added). 

Let me repeat that for emphasis.  Under the UCL, "relief" may be ordered "without individualized proof of deception, reliance and injury."  Id. (emphasis added). 

The reason for this is simple.  Actual deception, reliance and injury are not elements of a UCL claim.  Id.; see also id. at 312 (UCL "fraudulent" prong claim requires proof only that “members of the public are likely to be deceived"); Morgan v. AT&T Wireless Services, Inc., 177 Cal.App.4th 1235, 1253 (2009) ("[P]re-Proposition 64 caselaw that describes the kinds of conduct outlawed under the UCL is applicable to post-Proposition 64 cases such as the present case. The only difference is that, after Proposition 64, plaintiffs (but not absent class members in a class action) must establish that they meet the Proposition 64 standing requirements." (citing Tobacco II)).

Contrary to the Cohen court's perception, Tobacco II addresses far more than just standing.  The Supreme Court held that the standing requirement ("suffered injury in fact and lost money or property as a result of") could not be imposed on unnamed class members because doing so would serve to change these long-established elements of a UCL claim -- something the Court had previously held, in Mervyn's, Prop. 64 did not do:

[T]o hold that the absent class members on whose behalf a private UCL action is prosecuted must show on an individualized basis that they have “lost money or property as a result of the unfair competition” (§ 17204) would conflict with the language in section 17203 authorizing broader relief -- the “may have been acquired” language -- and implicitly overrule a fundamental holding in our previous decisions, including Fletcher, Bank of the West and Committee on Children's Television.

Had this been the intention of the drafters of Proposition 64 -- to limit the availability of class actions under the UCL only to those absent class members who met Proposition 64's standing requirements -- presumably they would have amended section 17203 to reflect this intention. Plainly, they did not.

.... 

[It] would undermine the guarantee made by Proposition 64's proponents that the initiative would not undermine the efficacy of the UCL as a means of protecting consumer rights, because 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 such rights.

Tobacco II, 46 Cal.4th at 320, 321.  

The Cohen opinion expresses the view that UCL claims are incompatible with class certification principles unless each class member proves reliance and injury:

[W]e find Tobacco II to be irrelevant because the issue of "standing" simply is not the same thing as the issue of "commonality." .... We see no language in Tobacco II which suggests to us that the Supreme Court intended our state's trial court's to dispatch with an examination of commonality when addressing a motion for class certification.

Slip op. at 15-16. Cohen overlooks the fact that Tobacco II necessarily addressed not only standing, but also commonality, because in Tobacco II, the Supreme Court expresssly reinstated an order granting class certification of a UCL "fraudulent" prong claim. The Supreme Court did not direct lower courts to dispense with commonality when analyzing class certification; but what it did do is direct lower courts to assess commonality in light of the actual elements of the claim ("likely to deceive" consumers) rather than non-existent ones (actual reliance and injury). 

For a case in which the court employed precisely that approach to commonality, and found the element satisfied, see Plascencia v. Lending 1st Mortgage, ___ F.R.D. ___, 2009 WL 2569732 (N.D. Cal. Aug. 21, 2009) (discussed in this blog post.)   Even the Court of Appeal in Kaldenbach (published on Monday) employed that approach. 

The Cohen opinion concludes:

In short, ... factual questions associated with [unnamed class members'] reliance on DIRECTV’s alleged false representations was a proper criterion for the court’s consideration when examining “commonality” in the context of the subscribers’ motion for class certification, even after Tobacco II.

Slip op. at 16 (emphasis added). This holding takes us back to pre-Mervyn's and pre-Tobacco II days, when lower courts had (erroneously) held that Prop. 64 changed the UCL's substantive elements by importing a "reliance" requirement. The Supreme Court held in no uncertain terms that Prop. 64 "was not intended to have any effect on absent class members.” Tobacco II, 46 Cal. 4th at 319 (emphasis added). If Cohen stands, the effect will be major and substantive.  

As defendants like to point out, the class action statute is a procedural device that is not to be employed to alter the underlying claim's substantive elements.  See, e.g., Tobacco II, 46 Cal.4th at 312 (citing City of San Jose v. Superior Court, 12 Cal.3d 447, 462 (1974) ("Class actions are provided only as a means to enforce substantive law.")).  The Cohen opinion uses the class action device to impose a "reliance" element that the Supreme Court has (twice) held Prop. 64 did not impose and is not part of the UCL.  The opinion should either be depublished or taken up for review. 

Recent federal UCL preemption decision: Lockwood v. Conagra Foods, Inc.

The plaintiffs' claim in Lockwood v. Conagra Foods, Inc., ___ F.Supp.2d ___, 2009 WL 250459 (N.D. Cal. Feb. 3, 2009) is that "defendant engages in misleading conduct by advertising its 'Healthy Choice' pasta sauce as 'all natural' when in fact it includes 'high fructose corn syrup.'"  Id. at *1.  Judge Charles R. Bryer determined that neither the Nutrition Labeling and Education Act nor FDA regulations under the Federal Food and Drug Cosmetic Act preempted this claim. Id. at *1-*6. He also refused to strike the class allegations:

Finally, defendant seeks to strike the class allegations on the ground that a class cannot be certified as a matter of law. Specifically, defendant alleges that each class member must prove reliance on the “all natural” representation and therefore individual questions necessarily predominate.

If a misrepresentation is material an inference of class-wide reliance may be inferred. Mass. Mut. Li[f]e Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1292, 119 Cal.Rptr.2d 190 (Cal.App.2002).  The Court cannot determine on the pleadings whether a class-wide inference is appropriate in this case. Accordingly, defendant's motion to strike the class allegations is denied without prejudice to the Court considering the issue on a fully-briefed and supported motion concerning class certification.

Id. at *6.

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

On July 30, 2007, the Court of Appeal (Second Appellate District, Division Three) held that the trial court had erroneously denied class certification of the plaintiffs' UCL claim. Ticconi v. Blue Sheidl of California Life & Health Ins. Co., 153 Cal.App.4th 1123 (2007) (rehearing granted). My post on the original Ticconi opinion is at this link.

On August 10, 2007, the Court of Appeal issued this order (quoted from the docket): "To make non-substantive changes to the opinion, the Court grants rehearing on its own motion. No further briefing is required." On December 4, 2007, the Court of Appeal issued its new opinion: Ticconi v. Blue Shield of California Life & Health Ins. Co., ___ Cal.App.4th ___ (Dec. 4, 2007). As indicated in the docket, the new opinion does not appear to include any substantive changes.

New UCL/class certification decision: Estrada v. FedEx Ground Package System, Inc.

In Estrada v. FedEx Ground Package System, Inc., ___ Cal.App.4th ___ (Aug. 13, 2007), the Court of Appeal (Second Appellate District, Division One) affirmed a judgment in favor of a class of FedEx delivery truck drivers, holding that the trial court correctly determined that the drivers were FedEx employees, not independent contractors, and that their expenses should have been reimbursed pursuant to Labor Code section 2802. The Court also held that some of the expenses were improperly disallowed, and remanded for redetermination of the amount (as well as for recalculation of attorneys' fees under Code of Civil Procedure section 1021.5).

The Court also rejected FedEx's post-trial challenge to the trial court's order granting certification and its approval of plaintiffs' use of representative ("anecdotal") testimony to establish their claims classwide:

The decision whether to certify a class is one within the trial court’s discretion and will be set aside only upon a showing of abused discretion. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) On this record, FedEx cannot make the required showing because it is clear that common issues -- whether the drivers were employees and, if so, which expenses would be reimbursable -- predominated. The anecdotal evidence was admitted to show FedEx’s power to interpret the Operating Agreement and was relevant to the class as a whole, not just to the drivers who happened to be the subject of a particular anecdote. FedEx’s failure to raise this point below suggests it understood that it would fail (it did not at any time during the nine-week trial move for decertification on the basis of the anecdotal evidence). (Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.)

Slip op. at 15-16 (emphasis added).

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.

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 UCL class certification decision: Seastrom v. Neways, Inc.

In Seastrom v. Neways, Inc., ___ Cal.App.4th ___ (Apr. 23, 2007), the Court of Appeal (Fourth Appellate District, Division One) addressed the "adequacy" element of class certification. The two proposed plaintiffs (who were substituted into the case after the original plaintiff lost standing in the wake of Prop. 64) were participants in a pyramid scheme. That scheme sold "an anti-aging dietary supplement" called BioGevity. One ingredient in BioGevity is federally regulated and is supposed to be sold only with a prescription. Slip op. at 2-4.

The Court of Appeal determined that the trial court did not abuse its discretion in holding that the two plaintiffs, who profited from selling the dietary supplement, were not adequate representatives of a proposed class of persons who bought the dietary supplement. Their conflict of interest, the court held, "goes to the very subject matter of the litigation." Id. at 6-7 (quoting Richmond v. Dart Industries, Inc., 29 Cal.3d 462, 470 (1981)). It seems to me that if someone who sold a product in violation of the UCL wished to facilitate a class action to recitify that misconduct, what they should do is notify their customers of the violation and encourage them to retain counsel. The Court of Appeal declined to address whether leave to amend the complaint to add another plaintiff should be granted. Id. at 11 n.2.

This case reminds me of Yoo v. Jho, ___ Cal.App.4th ___ (Feb. 23, 2007), in which the Court of Appeal (Second Appellate District, Division Three) held that two manufacturers of counterfeit designer bags could not bring their contract dispute into the court system and expect equitable relief. What were they thinking?

New UCL/class certification decision: In re Tobacco II Cases

In In re Tobacco II Cases, ___ Cal.App.4th ___ (Sept. 5, 2006), the Court of Appeal (Fourth Appellate District, Division One) affirmed an order decertifying UCL and CLRA claims for class treatment. Yesterday's Daily Journal reported that "Appellate Panel Lets Tobacco Firm Off Class-Action Hook." Here is a copy of the trial court's order, my original post on which is here.

Significant new Prop. 64 decision: Pfizer, Inc. v. Superior Court

Yesterday, in Pfizer, Inc. v. Superior Court, ___ Cal.App.4th ___ (Jul. 11, 2006), the Court of Appeal (Second Appellate District, Division Three) addressed a trio of significant and unresolved questions about how the UCL works in the post-Prop. 64 world. The court decided all three questions in the defendant's favor:

(1) In a UCL class action, all class members, not just the representative plaintiff, must have suffered "injury in fact." "We conclude that in order to meet the ‘community of interest’ requirement of Code of Civil Procedure section 382, which requires, inter alia, the class representative to have claims typical of the class, it is insufficient if the class representative alone suffered injury in fact and lost money or property as a result of the unfair competition or false advertising. The class members being represented by the named plaintiff likewise must have suffered injury in fact and lost money or property as a result of such violation." (Slip op. at 5 (emphasis added).) The court rejected the argument that the amendment's plain language—"Actions ... under this section may be prosecuted ... by any person who has suffered injury in fact and has lost money or property as a result of a violation of this chapter"—meant that only the representative plaintiff had to prove "injury in fact." (Slip op. at 13-14.)

(2) The "likely to deceive" standard, which governed UCL "fraudulent" prong cases before Prop. 64, has been abolished. "[T]he mere likelihood of harm to members of the public is no longer sufficient for standing to sue. Persons who have not suffered any injury in fact and who have not lost money or property as a result of an alleged fraudulent business practice cannot state a cause of action merely based on the 'likelihood' that members of the public will be deceived." (Slip op at 5 (emphasis added).) The Court declined to follow any of the post-Prop. 64 decisions that applied the "likely to deceive" formulation (see this post for a list of those decisions). (Slip op. at 15-17.)

(3) Prop. 64 imports a reliance element into the UCL. "[I]nherent in Proposition 64’s requirement that a plaintiff suffered ‘injury in fact ... as a result of’ the fraudulent business practice or false advertising (§§ 17204, 17535, italics added) is that a plaintiff actually relied on the false or misleading misrepresentation or advertisement in entering into the transaction in issue." (Slip op. at 5 (emphasis in original).) The court expressly declined to follow Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133 (C.D. Cal. 2005), and held instead that "the district court's decision in Laster v. T-Mobile USA, Inc. (S.D. Cal. 2005) 407 F.Supp.2d 1181, sets forth the correct interpretation." (Slip op. at 18.) (See these posts for further discussion of Anunziato and Laster.)

The Court concluded by saying:

We recognize this initiative measure, which was promoted as adding a standing requirement to the UCL and FAL, has had the effect of dramatically restricting these consumer protection measures. .... However, this court must take the statutory language as it finds it. Given the new restrictions on private enforcement under the UCL and the FAL, enforcement of these statutes in legitimate cases is increasingly the responsibility of a vigilant state Attorney General and/or local public prosecutors.

(Slip op. at 20.)

If the Pfizer holdings stand up, the effect of Prop. 64 will indeed be quite different from what the electorate was told. The silver lining for plaintiffs is that such amendments cannot possibly be construed as merely "procedural." According to Pfizer, Prop. 64 altered the "fraudulent" prong's "likely to deceive" standard and "added a reliance element to the UCL." (Slip op. at 16-17 (emphasis added).) Those changes are substantive. They cannot be applied to cases filed before the amendments' effective date absent a very clear statement of retroactive intent, which Proposition 64 does not contain.

On the other hand, if the Supreme Court holds that Prop. 64's amendments do apply to previously-filed actions, that would impliedly overrule Pfizer (unless the holding is based exclusively on the so-called "statutory repeal rule," which I consider unlikely for reasons explained here). This whole thing is becoming a Gordian knot.

New UCL/class certification decision: Alan v. American Honda Motor Co.

In the published portion of Alan v. American Honda Motor Co., ___ Cal.App.4th ___ (Aug. 2, 2005), the Court of Appeal (Second Appellate District, Division Three) reaffirmed the rule that an order denying certification of an entire class is appealable.

The unpublished portion of the opinion is much more interesting. There, the Court addressed the plaintiff's argument that, given the passage of Proposition 64, a pre-Prop. 64 order denying certification of the CLRA claim, but not the UCL claim, was only a partial denial of class certification, and therefore not appealable:

Plaintiff asserts ... that the order denying plaintiff’s motion for class certification was not the death knell of the class action allegations. According to plaintiff, the trial court’s order was tantamount to a partial denial of class certification, and therefore was not appealable. (See, e.g., Shelley v. City of Los Angeles, supra, 36 Cal.App.4th 692; General Motors Corp. v. Superior Court (1988) 199 Cal.App.3d 247.)

Specifically, plaintiff asserts ... that the recently enacted Proposition 64 transformed the cause of action under Business and Professions Code section 17200 from a representative action to a class action.

Based upon these considerations, plaintiff claims the trial court order denying class certification was only a partial denial of certification, and therefore not immediately appealable. Plaintiff explains that this was a cautionary appeal and that this court should exercise its discretion to consider the premature appeal as a petition for a writ of mandate. (See Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1098.) We reject these assertions.

On this record, the trial court order denying certification cannot be construed as a partial denial of class certification. ....

[A]t the time the trial court ruled on plaintiff’s motion for certification, Proposition 64 had not been approved by the electorate. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007, fn. 17 [Proposition 64 took effect on November 3, 2004.].) Thus, none of the class claims were based upon Proposition 64’s modifications of Business and Professions Code section 17200. In any event, plaintiff has offered no explanation as to how the newly-enacted Proposition 64 would broaden the potential class. Plaintiff has offered no explanation as to whether a proposed class under section 17200 of the Business and Professions Code would be comprised of a different class of persons or whether such a class would present different claims.

The trial court’s January 2, 2003, order was the final disposition of all class claims at issue and presented in this litigation. Thus, the trial court order denying plaintiff’s motion for class certification was the death knell of the class claims presented under the Consumer Legal Remedies Act. The order was therefore immediately appealable.

Slip op. at 6-7.