New unpublished UCL decision: Schulz v. Neovi Data Corp.
On Monday, the Fourth Appellate District, Division Three, issued another unpublished decision on the Prop. 64 retroactivity question. Schulz v. Neovi Data Corp., case no. G033879 (aka Schulz v. Ginix Corp.). This was one of the cases in which the Court asked for letter briefs on Prop. 64 shortly after Election Day. No surprise, the Court followed Benson in holding that Prop. 64 applies to pending cases.

What's more interesting about this decision is its holding that a defendant can be liable under the UCL if it aided and abetted others in committing an unfair business practice. The Schulz court held that Emery v. VISA International Service Assn., 95 Cal.App.4th 952 (2002), did not stand for the proposition that the UCL precludes aider and abettor liability. (Slip op. at 10-11.) Emery is the only other case that I'm aware of in which an appellate court addressed that issue, but as I reported just over a year ago, Emery has been read by some as holding that aiding and abetting is not a viable theory of UCL liability. Schulz confirms that such a reading of Emery is incorrect. Moreover, in Schulz, unlike Emery, the court held that the plaintiff had alleged sufficient facts to proceed under an aiding and abetting theory. For these reasons, I think the second half of the Schulz opinion either "establishes a new rule of law" or "applies an existing rule to a set of facts significantly different from those stated in published opinions" (Cal. Rule of Court 976(c)(1)). A request for partial publication would be very appropriate.
- posted by Kim Kralowec @ 10:15 AM