The UCL Practitioner
Monday, July 18, 2005
Another unpublished Prop. 64 opinion
In Tyquiengco v. Cal. Assn. of Realtors (First Appellate District, Division Four) (July 15, 2005), the panel that authored Californians for Disability Rights v. Mervyn's LLC wrote:
[Plaintiffs] contend that they have standing to bring this unfair competition action ... on behalf of all California consumers. In so doing, they challenge the trial court’s ruling that Proposition 64 applies retroactively to bar their lawsuit. We have already considered this issue in an unrelated case and have concluded that Proposition 64 does not apply retroactively to cases such as the one before us that were filed before its November 3, 2004 effective date. (See Californians for Disability Rights v. Mervyn’s (2005) 126 Cal.App.4th 386, 390-397, review granted Apr. 27, 2005, S131798.) The California Supreme Court has granted review in that case and we base our decision in the case at bar on another ground.
Slip op. at 4 n.4 (hyperlink added). The opinion goes on to include an interesting melding of the pre- and post-Cel-Tech formulations of "unfair":
A business practice is unfair and thus violates the UCL if it offends an established public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. (Gregory v. Albertson’s, Inc. [(2002)] 104 Cal.App.4th [845,] 854.) A business practice may be unfair even if it is not unlawful. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) If the Legislature has not proscribed a business practice, courts may properly make a judicial determination that it is unfair under the UCL. (Id. at p. 183.) When a UCL allegation of unfair business practice is predicated on an assertion that the practice violates public policy, courts may not apply purely subjective notions of fairness. Instead, the violation of public policy must be linked to some specific constitutional, statutory or regulatory provision. (Id. at pp. 184-185; Gregory v. Albertson’s, Inc., supra, 104 Cal.App.4th at p. 854.)
Slip op. at 6-7 (hyperlinks added). What this paragraph seems to be saying is that the post-Cel-Tech formulation of "unfair" applies in consumer actions only when the plaintiff asserts that the defendant's conduct violates "public policy." Presumably, the pre-Cel-Tech formulation would apply when the "unfair" claim is based on some other theory, such as the argument that the conduct is oppressive or unscrupulous or that its benefits are outweighed by its potential for harm. Finally, the court applied (without any mention of Prop. 64) the ordinary "likely to deceive" standard for "fraudulent" conduct. Slip op. at 7.
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