New UCL/class certification decision: Blakemore v. Superior Court
On Friday, in Blakemore v. Superior Court (Avon Products, Inc.), ___ Cal.App.4th ___ (May 6, 2005), the Court of Appeal (Second Appellate District, Division Eight) held that the trial court should not have sustained the defendant's demurrer to the UCL claim, as the plaintiffs had successfully pleaded "unfair" and "fraudulent" conduct (although not "unlawful" conduct). (Slip op. at 25-30.) The Court further held that the trial court erred in striking the class allegations, since nothing in the complaint suggested that the plaintiffs' claims would not be typical or that common questions would not predominate. (Id. at 31-39.) The discussion of these issues is quite detailed and includes a lot of good citations to leading cases.

The opinion makes no mention of Proposition 64 or the retroactivity conundrum, probably because the plaintiffs alleged that they suffered monetary loss and sought class certification. Significantly, the court applied the usual formulation of "fraudulent" conduct, one that has governed UCL claims for years:

The term “fraudulent” as used in Business and Professions Code section 17200 requires only a showing that members of the public are likely to be deceived. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211.) Unlike common law fraud, a section 17200 violation can be shown even without allegations of actual deception, reasonable reliance and damage. (Ibid.) .... Because the allegations are sufficient to state an unfair competition law claim based upon deception, the same allegations necessarily suffice to state a claim under the unfairness prong of the UCL. A practice which is deceptive is necessarily unfair.

(Slip op. at 26.)
- posted by Kim Kralowec @ 12:01 AM