The UCL Practitioner
Saturday, December 04, 2004
 
Appellate panel ignores Proposition 64 in unpublished opinion
Many thanks to the reader who alerted me to Banales v. Superior Court (AT&T Wireless Services, Inc.), No. B177019 (Dec. 3, 2004), an unpublished opinion issued yesterday. In Banales, the Second Appellate District, Division Eight, completely ignored Proposition 64 in reversing the trial court's order striking the unaffected plaintiff's prayer for restitution. In so holding, the Court declared that "the UCL permits a private plaintiff who has suffered no injury at all to sue to obtain relief for others, including restitution," and that "sections 17203 and 17204 confer standing to prosecute actions for relief not only on the public officials named therein, but also on private individuals, and a private plaintiff who has suffered no injury may sue to obtain injunctive relief for others." Slip op. at 3, 5. The Court took pains to distinguish UCL class actions from UCL representative actions, and proclaimed it a "settled issue that section 17204 confers standing on private individuals who have suffered no injury to sue to obtain injunctive relief and restitution for others." Id. at 6. The Court concluded:
[Plaintiff] did not allege he was an AT&T customer or that he was suing in an individual capacity. He clearly is suing solely in a representative capacity. But the fact [that plaintiff] may not individually be entitled to restitution does not mean his allegations regarding restitution are improper. The allegations are proper for the very reason that he is suing in a representative capacity, which sections 17203 and 17204 clearly allow.
Id. The docket suggests that the Proposition 64 retroactivity issue may have been brought to the Court's attention. I can only conclude that the panel believed that Proposition 64 did not apply to pending cases filed before its effective date.
Comments:
--The docket suggests that the Proposition 64 retroactivity issue may have been brought to the Court's attention.--

What about the Banales court docket suggests that.
 
The docket indicates that counsel for the respondent and the real party in interest both submitted supplemental letter briefs on November 22 asking that the writ petition be denied. The rest of the briefing was completed before Proposition 64 went into effect on November 3. I freely admit that this is a guess on my part, but I would be very surprised if Proposition 64 was NOT raised in those supplemental letter briefs. If anyone has further information on this case, please write in and I will be happy to post more about it.
 
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