The UCL Practitioner

Friday, April 01, 2005

Another Prop. 64 hypothetical
A reader poses this hypothetical:

Client A sues defendants A, B & C for violation of B&P 17200. Assume the claim is valid. For reasons which are complicated, let's just say there have been several owners of the same business operations over the statutory period. The owners have owned not just the business with which plaintiff has a transaction, but also others. She has standing for an act committed by defendant A, about which there is no issue. Plaintiff is informed and believes that defendants B & C also commit and have committed such acts, but B& C were not involved with the operation which A ran when plaintiff was injured. Assume there is no successor liability.

Understanding that Prop 64 requires standing such that actual and monetary damages must be suffered and class action requisites must be met, does her standing for A allow her to sue B&C as well?

Maybe I have overthought this, but what I guess I'm asking/saying is that Prop. 64 does not specifically require that the actual and monetary damages suffered be caused by any particular defendant. Can we say that if one suffers the mandatory injuries from the unfair act, the plaintiff has standing against anyone doing the unfair act? Note that, to me anyway, the CCP 382 prerequisite does not change things if my prior supposition is correct.

I think there's an argument to be made there. I'd look at precedents on class certification because I believe there is caselaw saying that a plaintiff injured by one defendant in a particular way has claims that are "typical" of a broader group which would include class members injured in a somewhat different way. That's a slightly different issue from standing but one that may resonate with judges. Does anyone have any other ideas?
- posted by Kim Kralowec @ 9:09 AM

Comments:

In the spirit of coffehouse chat, I will give my initial, not carefully thought through response (although I have been forced to repeatedly confront this issue: actual injury; in a case i have where we have one defendant with multiple bad practices and the judge has held that the plaintiff only has standing as to bad practices she actually suffered). If I represented B or C I would say that this is classic pre-prop 64 standing and no longer exists. The plaintiff must have suffered actual injury at hands of defendant to have standing. Otherwise, for example, if i have a dispute with one bank over check cashing fees, I could bring in every bank with similar policies. i don't think this would fly unless there was a member of class who was a representative customer of each defendant. but like i said, i just read it quickly and you are the expert on this stuff.

# posted by

Anonymous : 11:52 AM

Thanks for sharing your thoughts. I think you're right about check cashing fees charged by a bunch of different, unrelated banks. But let's say that the plaintiff was a customer of Bank A and paid improper fees to Bank A. Then, Bank A merged with Bank B, which continued charging its customers improper fees. The plaintiff herself paid improper fees only to Bank A but not Bank B. Can the plaintiff still invoke the UCL to sue both Bank A and Bank B to stop the continuing wrongful conduct and recover restitution on behalf of those who paid improper fees to Bank B? I think the answer would be yes. More coffeehouse chat is welcome on this.

# posted by

Kim Kralowec : 12:18 PM

i thought about this some more, i like these hypotheticals, and i just don't see how b is liable. maybe you have read cases but it seems like unless b's practice is a continuation of a's, as opposed to independent and preexisting, they are like two different automobile accidents and you can only sue the driver who hit you.

# posted by

Anonymous : 5:23 PM

Right, in my hypothetical I assumed that Bank B's practice is a continuation of Bank A's. But your comment about two separate auto accidents is intriguing. Let's say Bank B hired an armored truck driver with a chronic reckless driving problem. The plaintiff is injured in a wreck caused by Bank B's driver, and sues Bank B. Can the plaintiff get an injunction requiring Bank B to stop employing the reckless driver? In other words (and yes I know this particular example is unlikely to be a UCL case, but let's just follow it through), can the plaintiff get an injunction not only for herself but for everyone whom Bank B's unlawful conduct is likely to harm? I would argue that the answer should be yes, even after the amendments.

# posted by

Kim Kralowec : 9:35 AM

if you apply the normal injunction rules, something like a risk of reoccurence, the answer would have to be no. what are the chances that this victim would ever be hit again by this driver. does prop 64 have the unexpected result of importing traditional injunction rules to 17200? interesting question and at least one trial judge has said yes.

# posted by

Anonymous : 1:28 PM

a continuation of the practice but no successor liability. seems like you can't have one without the other o/w it would just be copycat conduct and i don't think you can attack copycat conduct. just rambling, maybe makes no sense. sorry

# posted by

Anonymous : 1:31 PM