The UCL Practitioner
Wednesday, December 24, 2003
 
Recent UCL decisions
Several recent decisions have addressed whether the narrower Cel-Tech formulation of "unfair" applies in consumer cases as well as actions between competitors:

** In Pastoria v. Nationwide Insurance, ___ Cal.App.4th ___ (Oct. 31, 2003), the court held that the pre-Cel-Tech test should apply in consumer actions (although it also found that either test had been met) (citing Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal.App.4th 700, 720 n.23 (2001)).

** In Kunert v. Mission Financial Services Corp., 110 Cal.App.4th 242 (2003), the court applied the pre-Cel-Tech formulation of "unfair," observing that "[t]he Supreme Court has not yet enunciated a legal test for unfairness in consumer actions under the unfair competition law."

** In Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 940 (2003), the court held that "Cel-Tech narrowed the expansive earlier interpretations of the term 'unfair'" (citing Gregory v. Albertson's, Inc., 104 Cal.App.4th 845, 854 (2002)), then employed a somewhat modified version of the pre-Cel-Tech formulation of "unfair."

Other interesting UCL decisions over the past several months include:

** Consumer Cause, Inc. v. National Vision, Inc., ___ Cal.App.4th ___ (Sept. 3, 2003), in which the original opinion contained the following obviously wrong statement: "In any event, Consumer did not and could not allege that National's conduct, even if unlawful, caused harm, a necessary element of a section 17200 cause of action." The opinion was amended three weeks later to omit that sentence and to hold instead that Consumer failed to allege facts that would permit recovery of restitution. The modification order is accessible here. The original opinion can be viewed here.

** Herr v. Nestle U.S.A., Inc., 109 Cal.App.4th 779 (2003), in which the court held that age discrimination may be enjoined under section 17200.

** Plotkin v. Sajahtera, Inc., 106 Cal.App.4th 953 (2003), in which the court held that it was not "fraudulent" within the meaning of the UCL for a hotel not to post its valet parking rates in a conspicuous place separate from the parking ticket itself. The court observed: "[C]ommon sense dictates it would be unreasonable for someone availing himself of valet parking at a hotel in the Los Angeles metropolitan area, much less Beverly Hills, not to expect to pay for valet parking. The ticket provides reasonable and advance notice of the charge."
Tuesday, December 23, 2003
 
UCL SLAPP decision modified
Yesterday the Court of Appeal modified its decision in Jewett v. Capital One Bank, ___ Cal.App.4th ___ (Nov. 25, 2003) (discussed in my post dated 12/02/03) by removing references to the trial court's fees and costs award, including language ordering the trial court to consider ordering fees and costs to the plaintiff instead. The modification also deletes language that would have awarded the plaintiff her costs on appeal. According to the order, which can be accessed here, this modification effects "no change in the judgment." The respondents who sought rehearing probably believe otherwise (see the docket). The original opinion is available here.
Tuesday, December 16, 2003
 
Supreme Court Allows 17200 Action to Proceed Against Telephone Utilities
Yesterday the California Supreme Court unanimously ruled that a 17200 action brought by several district attorneys against Pacific Bell and other telephone utilities could proceed even though a parallel administrative enforcement proceeding was pending before the PUC. The ruling, although tethered to a statute (Pub. Util. Code sec. 1759) governing the PUC's jurisdiction, may be significant in similar cases in which defendants argue that the activities of various regulatory agencies should preclude private civil actions under section 17200. The Supreme Court determined that whether the PUC's parallel administrative action barred the 17200 claim depends on "the extent to which the remedies in the two proceedings were likely to be inconsistent and thus were likely to undermine any ongoing authority or regulatory program of the PUC." The court further observed: "Enforcement of the vast array of consumer protection laws to which public utilities are subject is a task that would be difficult to accomplish by a single regulatory agency, and the applicable statutes clearly contemplate that other public law enforcement officials, in addition to the PUC, must be involved in the effort to enforce such laws." (The court specifically declined to extend its holding to 17200 suits brought by private parties rather than public officials.) The court concluded that the claims against the telephone utilities do "not involve ratemaking or any other matter assigned to the exclusive jurisdiction of the PUC." The opinion, People ex rel. Orloff v. Pacific Bell, ___ Cal.4th ___ (Dec. 15, 2003), can be accessed here.
Friday, December 12, 2003
 
"Reasonable Consumer" Standard Applies in CLRA as Well as UCL Cases
Last week the Court of Appeal confirmed that the "reasonable consumer" standard adopted in Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 506-07 (2003) for UCL "fraudulent" prong claims applies equally to CLRA claims based on misrepresentations about the quality or characteristics of goods. The decision, Consumer Advocates v. Echostar Satellite Corp., ___ Cal.App.4th ___ (Dec. 5, 2003) went on to reject federal caselaw holding that, to prove a UCL "fraudulent" prong claim, "a plaintiff must produce consumer survey or similar extrinsic evidence to prevail on a claim that the public is likely to be misled by a representation." Instead, the Court held, "[t]he falsity of . . . advertising claims may be established by testing, scientific literature, or anecdotal evidence." This decision is noteworthy, although it is interesting to observe that the unpublished portion of Lavie described in detail the extensive consumer survey data presented by plaintiff's expert to establish the UCL "fraudulent" prong claim in that case. Nor did the court mention Brockey v. Moore, 107 Cal.App.4th 86 (2003), decided seven months ago, which already held that consumer survey evidence is unneeded to prove a "fraudulent" prong claim. The Consumer Advocates decision is accessible here. The unpublished portion of Lavie can be viewed here.
Tuesday, December 02, 2003
 
New Decision Limits SLAPP Motions in 17200 Cases
On November 25, 2003, the Court of Appeal reversed an order granting a SLAPP motion in a 17200 case alleging false advertising, holding that the anti-SLAPP statute (Code of Civil Procedure section 425.16) does not apply to suits seeking to curtail deceptive commercial solicitations. As the decision notes (in footnote 5), the California Legislature recently made that limitation explicit by enacting new CCP section 425.17 (eff. 01/01/04), which states that "section 425.16 does not apply to any cause of action" challenging statements to consumers about goods or services. The court also reversed a hefty attorneys fees award, instructing the trial court to consider awarding fees to the plaintiff instead. The decision, Jewett v. Capital One Bank, ___ Cal.App.4th ___ (Nov. 25, 2003) can be accessed here. New section 425.17 can be accessed here.

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