The UCL Practitioner
Thursday, December 16, 2004
Another trial court order on Prop. 64
In Plaintiff's Overtime Wage Enforcement & Remedies Group v. FedEx Kinko's Office & Print Servs., Inc., San Mateo County Superior Court case no. 440481, Judge Mark R. Forcum Beth Labson Freeman issued the following tentative ruling dated yesterday:
SUSTAIN Defendant FedEx Kinko’s Demurrer to the Complaint. The court finds that Prop 64, amending Bus. & Prof Code sec. 17200, et seq. applies to this case. The parties agree that Plaintiff does not allege that it suffered any injury alleged in the complaint and that the case is not brought as a class action under CCP sec. 382. They agree that the amendments to sec. 17204, if applicable to this case, would preclude the action going forward in the name of Plaintiff POWERG. They disagree as to whether the newly enacted statute applies to this case, which was filed prior to the effective date of Prop 64. The court finds that Prop 64 does not change the legal consequences of past conduct by imposing new or different liabilities based on such conduct. See, Tapia v. Superior Court (1991) 53 Cal. 3d 282, 291. The court finds that Prop 64 is “procedural” as to the issues of standing and the elimination of private party representative actions absent allegations under CCP sec. 382 and thus Prop 64 applies to this case. See, Physicians’ Committee for Responsible Medicine v. Tyson’s Foods, Inc. (2004) 119 Cal. App. 4th 120, 125; Brenton v. Metabolife International, Inc. (2004) 116 Cal. App. 4th 679,689. The court further SUSTAINS the Demurrer on the grounds that POWERG has failed to allege facts sufficient to establish that it is a proper party under the pre-Prop 64 provisions of sec. 17200, et seq. There are no allegations that POWERG may maintain this action under sec. 17201, or 17204. Leave to amend on this ground would have been granted but for the court’s ruing regarding the applicability of Prop 64.
I'm told that Judge Forcum Freeman adopted this tentative ruling after oral argument yesterday. Also, the court's website indicates that tentative rulings are kept online for only five calendar days, so I've archived a copy in pdf format. Merci beaucoup to the person who sent me this information. CORRECTION: It was actually Judge Freeman, not Judge Forcum, who issued this tentative ruling. My apologies.

UPDATE: The archived pdf file has now been updated to reflect that the tentative was authored by Judge Freeman.
Comments: Post a Comment

Powered by Blogger

© 2003-2005 by Kimberly A. Kralowec