The UCL Practitioner
Wednesday, December 15, 2004
Recent Prop. 64 retroactivity orders
The trial courts have been busy. So far, I've identified the following orders on the Prop. 64 retroactivity question:

  • Twomey v. Hansen Information Technologies, Sacramento County Superior Court case no. 03AS03632, Judge Thomas M. Cecil (tentative ruling dated 11/10/04)

  • Pepe v. Waagenaar, Los Angeles County Superior Court case no. LC069018 (Northwest District, Van Nuys East), Judge Richard Adler (tentative ruling dated 11/15/04)

  • Dohrmann v. Tosco Refinery Co., Los Angeles County Superior Court case no. BC275234, Judge Alan Buckner (notice of order dated 12/03/04)

  • Kim v. Bayer Corp., Los Angeles County Superior Court case no. BC309926, Judge David A. Workman (order dated 12/10/04)

  • Goodwin v. Anheuser-Busch Cos., Los Angeles County Superior Court case no. BC310105, Judge Peter D. Lichtman (order dated 12/13/04)
All of these orders except Twomey state that Prop. 64 applies to pending cases. However, the Pepe and Dohrmann orders do not mention the retroactivity question, much less decide it on the merits. I'm told that the Pepe order is the one referred to in the December 1 Recorder article. The Goodwin order, which is the most detailed, invites immediate appellate review under Code of Civil Procedure section 166.1. And the Kim order contains the following language: "The Unfair Business Practices Act contains the substantive law, left fully in tact [sic] by Proposition 64." (Kim order at 5.) Here's the silver lining for plaintiffs. If the appellate courts hold that Prop. 64's amendments apply to pending cases because they are procedural, it will be very hard for defendants to argue that the UCL's substantive requirements have changed—especially given language like that of the Kim order.

Thanks to everyone who sent these orders to me. If you know of any other trial court orders, please email me.
I don't understand your comment about the Kim decision. There's no question that the Unfair Competition Law contains both substantive and procedural statutes, and no reasonable dispute that Proposition 64 amended only some of the UCL's procedural statutes (e.g. re standing). Kim's statement that Proposition 64 "left fully intact" the substantive parts of the UCL has nothing to do with whether the new procedural amendments apply to cases pending before the initiative became effective.

Regardless, Kim will have no effect on any other trial-level decision because Kim was a trial-level decision. It is without precedential effect. Pereira-Goodman v. Anderson, 54 Cal.App.3d 864, 872, n.5 (1997) ("the decisions of other superior courts . . . do not have precedential value.")
Thanks for sharing your thoughts. Your comments assume that the Proposition 64 amendments are, in fact, "procedural." An argument can be made, however, that they will have a substantive impact. For example, under the former UCL, a violation of the "fraudulent" prong was particularly easy to prove. To prevail, the plaintiff need only establish that "members of the public were likely to be deceived" by the defendant’s conduct. Bank of the West, Inc. v. Superior Court, 2 Cal.4th 1254, 1267 (1992) (emphasis added). The Proposition 64 amendments arguably change this. Now, the representative plaintiff must have suffered "actual injury" and "loss of money or property." With regard to the "fraudulent" prong in particular, Proposition 64 arguably changes the legal effect of past conduct by legalizing business practices that were "likely to deceive," but not actually deceptive. A more substantive impact is hard to imagine.

If the appellate courts ignore this potentially substantive impact and hold that the amendments are "procedural," I would argue that the "likely to deceive" standard survived Proposition 64. While the individual plaintiff must now have "standing" in the traditional, Article III sense, all he or she needs to prove to obtain classwide relief is that the defendant's conduct is "likely to deceive" consumers. In the Kim court's words, the substantive law, including the "likely to deceive" standard, was "left fully intact by Prop. 64."

I definitely agree that the Kim order has no precedential value. I simply meant that if the appellate courts employ similar reasoning or use similar language, an argument like the foregoing will be bolstered.
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