The UCL Practitioner
Thursday, March 31, 2005
 
New Prop. 64 Appeal
A writ petition has been filed challenging Judge Sabraw's order in the FATE cases:
Two things are interesting about this. First, the case was assigned to Division Four, which is the Division that issued the Mervyn's decision. Second, the court ordered the real party to file an opposition, which shows some interest in the case. We're seeing that kind of expression of interest more often than usual in these Prop. 64 cases. Many thanks to the reader who emailed me about the pending appeal.
 
New Prop. 64 Orders
These three orders have been added to my list of Prop. 64 orders. They all hold that Prop. 64 applies retroactively to pending cases. I mentioned the federal order in a post a couple of weeks ago, but the other two are new:
Thanks to the readers who provided copies of these orders.
Wednesday, March 30, 2005
 
Petition for review filed in Bivens v. Corel Corp.
Yesterday, a petition for review was filed with the California Supreme Court in Bivens v. Corel Corp., 126 Cal.App.4th 1392 (2005), according to the docket in the Fourth District case. The Supreme Court's docket has not yet been updated. That means that review petitions are now pending in four out of the six cases in which the Prop. 64 retroactivity issue has been decided. My list of pending appeals has been updated accordingly.
 
Recent federal UCL decision: Molski v. Mandarin Touch Restaurant
In an opinion handed down earlier this month, Molski v. Mandarin Touch Restaurant, ___ F.Supp.2d ___, 2005 WL 535357 (C.D. Cal. Mar. 8, 2005), Senior District Judge Edward Rafeedie declined to exercise supplemental jurisdiction over a UCL claim, explaining:
The Court also believes that there is a question regarding the applicability of California Proposition 64 to the Plaintiffs' Fifth Causes of Action for alleged violations of California's unfair business practices law. Proposition 64, approved by California voters in November 2004, limited the standing of plaintiffs to sue under that law. Proposition 64 eliminated the provision of California Business and Professional [sic] Code § 17204 authorizing initiation of a complaint by "any person acting for the interests of itself, its members, or the general public," and substituted a provision for enforcement only by "any person who has suffered injury in fact and has lost money or property as a result of such unfair competition." Proposition 64 also amended section 17203, concerning injunctive relief under the unfair business practices law, to provide that a private person "may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17203 [i.e., actual injury] and complies with Section 382 of the Code of Civil Procedure" governing class actions. The meaning and scope of Proposition 64 are being hotly contested in the California state courts at this time. Compare Californians for Disability Rights v. Mervyn's, LLC, 24 Cal.Rptr.3d 301 (Cal.App. 1 Dist.2005) (declining to apply Propositon 64 retroactively) with Benson v. Kwikset Corp., --- Cal.Rptr.3d --- (Cal.App. 4 Dist.2005) (applying Proposition 64 retroactively). Accordingly, the Court believes that the state courts are the proper forum for the resolution of this novel issue of state law.
Notwithstanding such concerns, another Central District judge decided this issue on the merits just a couple of weeks ago. Disability Law has more on the ADA aspects of the Molski decision. (And as an aside, while I was searching (unsuccessfully) for a free online copy of the decision, I found this, which I can't resist posting. It's hilarious.)
Tuesday, March 29, 2005
 
"Don't Fear the Blogger"
Slate has this online essay. And while we're on the subject, Rep. John Conyers, Jr. (D-Mich.) says "Bloggers Have Rights Too." But apparently not the right to post at will, at least if you're dependent on Blogger. Had a heck of a time trying to post today. Things seem to be working now.
 
Depublication denied in Baxter v. Salutary Sportsclubs, Inc.
Blogger was disabled most of the day, keeping me from posting anything until now. Here's an interesting development. On March 16, the Supreme Court denied the depublication request in Baxter v. Salutary Sportsclubs, Inc., 122 Cal.App.4th 941 (2004), a UCL decision involving the recoverability of attorneys' fees under the private attorney general doctrine of Code of Civil Procedure section 1021.5, the avenue by which fees are typically sought in successful UCL cases. The docket is accessible here. My original posts on Baxter are here and here. Thanks to the reader who alerted me to this.
Monday, March 28, 2005
 
One-hour MCLE on Prop. 64 this Wednesday in San Francisco
This coming Wednesday, March 30, the Barristers Club of the Bar Association of San Francisco will present a one-hour program entitled "Is There Any Bite Left in B & P Section 17200? Unfair Competition Lawsuits After Proposition 64." The speaker is attorney Michael A. Sweet of Winston & Strawn LLP.
 
Review sought in Consumer Advocates v. DaimlerChrysler Corp.
On March 14, a petition for review was filed with the California Supreme Court in Consumer Advocates v. DaimlerChrysler Corp., case no. S131861. I haven't seen the petition, but it probably doesn't raise Prop. 64. As you might recall, the Fourth Appellate District, Division Three, issued an unpublished opinion on January 31st that surprised everyone by not reaching the Prop. 64 retroactivity issue. As a result, the review petition likely addresses the other UCL-related points discussed in the unpublished opinion, which had to do with adequacy of legal remedies and equitable abstension—neither of which the opinion addressed in a particularly unique way. The multiple publication requests are still pending, but the Fourth District denied those requests, and they are opposed by the California Attorney General and the California District Attorneys' Association.
Friday, March 25, 2005
 
New Prop. 64 opinion: Frey v. Trans Union Corp.
The Fourth Appellate District, Division Three, has issued another opinion exploring our brave new post-Prop. 64 world. In Frey v. Trans Union Corp., ___ Cal.App.4th ___ (Mar. 24, 2005), that court reaffirmed its prior holding (in Benson v. Kwikset Corp.) that Prop. 64 governs cases filed before the initiative's effective date. Slip op. at 8-12. The court then addressed Prop. 64's class certification language, observing:
Proposition 64 repealed the right under the UCL to bring a representative action without meeting the class certification requirements of section 382 of the Code of Civil Procedure.
Id. at 2; see also id. at 7. Because of that, the court reversed the order denying class certification of the UCL claim.

The trial court in Frey denied class certification after determining that a class proceeding would not be the "superior" way to adjudicate the dispute "in light of the remedies available in [UCL] representative actions." Id. at 12. The trial court could not have known that after Prop. 64, such remedies would no longer be available. See id. The order denying class certification, the Court of Appeal held, was based on the erroneous legal assumption that non-class, representative relief was available under the UCL. The appellate court remanded the case for further consideration of whether the UCL claim should be certified for class treatment.

Within the past year, a couple of published appellate opinions had begun to support the view that in some UCL cases, class certification procedures would not be "superior" to a non-class, representative UCL proceeding. In Alch v. Superior Court, 122 Cal.App.4th 339 (2004), for example, the Second Appellate District, Division Eight, held that "the trial court correctly sustained the employers’ demurrers to the [plaintiffs'] UCL class claims, since the only remedy available to the [plaintiffs] is injunctive relief, which is obtainable to the same extent through the [plaintiffs'] representative actions." Id. at 408. Similarly, in Frieman v. San Rafael Rock Quarry, Inc., 116 Cal.App.4th 29 (2004), the First Appellate District, Division One, found insufficient reason to certify the UCL claim and substitute the potentially "burdensome" class action mechanism for the "streamlined" UCL process. Id. at 37. This part of Frey could be viewed as a positive development for plaintiffs seeking class certification of UCL claims, because it eliminates this backwards "superiority" argument.

Ironically, the Fourth Appellate District, Division Three, had already rejected the "superiority" argument against class certification of UCL claims. In Lebrilla v. Farmers Group, Inc., 119 Cal.App.4th 1070 (2004), that court declined to hold that "a UCL action already provides an 'expedited mechanism for obtaining ... relief on behalf of the general public' and thus, giving it class treatment is superfluous." Id. at 1087. It seems to me that the order denying class certification of the UCL claim in Frey could have been reversed under Lebrilla, obviating the need to even address Prop. 64.
 
"Road Block Appears En Route Around Proposition 64: Judge Limits Environmentalists' Use of Law"
The Daily Journal reports today that Alameda County Superior Court Judge Ronald M. Sabraw issued a new tentative ruling earlier this week in which he backtracked somewhat on his prior order in Centers for Biological Diversity v. FPL Group, case no. RG04183113:
In February, based on the public trust doctrine, Sabraw found that the group and one of its individual members held a property interest in the wild birds [that the defendant's wind turbines allegedly kill]. That concept, a component of Western law for centuries, has been applied to a variety of natural resources, including water and wildlife. It essentially means that certain assets are held in trust for the public by a sovereign, such as the state. But in his tentative ruling [this week], Sabraw said the plaintiffs could not recover any money, because they didn't really own the birds for the purposes of a Section 17200 claim.
This most recent tentative ruling should be available through the court's online Domain Web system, but that system is unavailable right now. Thanks to the reader who emailed me about this article.
Thursday, March 24, 2005
 
Review petitions filed in two Prop. 64 cases: Benson v. Kwikset Corp. and Branick v. Downey Savings & Loan
On Monday, a petition for review was filed in Benson v. Kwikset Corp., 126 Cal.App.4th 887 (2005). Here is a link to the docket. The petition was filed by Kwikset Corp., which suggests that the Prop. 64 retroactivity issue has not been raised. And on Tuesday, a petition for review was filed in Branick v. Downey Savings & Loan Assn., 126 Cal.App.4th 828 (2005). The docket in that case provides very little other information. If anyone knows more about either of these review petitions, please write in.
 
Activity in the Third District
The Third District accepted the stipulation of dismissal in Fair Business America, LLC v. Mattel, Inc., case no. C044134, and issued its remittitur on Tuesday. All hope is not lost that the Third District might weigh in on the Prop. 64 retroactivity issue, however. On March 10, that Court issued an alternative writ in Petrini Van & Storage, Inc. v. Superior Court, case no. C049042. The real party's return is due on April 11. You may recall that on January 5, Sacramento County Superior Court Judge Loren McMaster ruled that Prop. 64 does NOT apply to pending cases. Munoz v. Petrini Van & Storage, Inc., case no. 04AS01213 (order dated 01/05/05). Judge McMaster's order is one of the more detailed and better-reasoned ones on the issue, and it specifically invited appellate review under Code of Civil Procedure section 166.1. Many thanks to the reader who informed me of the appellate-level developments.
 
Sixth District orders Apple to respond to bloggers' writ petition
On Tuesday, the Electronic Frontier Foundation filed a writ petition challenging Judge Kleinberg's order requiring several computer-enthusiast bloggers to disclose their confidential sources. O'Grady v. Apple Computer, Inc., case no. H028579. The Sixth Appellate District reacted almost immediately by ordering Apple to respond to the petition by April 7. Score one for journalists!
Wednesday, March 23, 2005
 
Reports on last week's oral argument on Prop. 64
As I mentioned here, last Thursday the Fourth Appellate District, Division One, heard oral argument in Thornton v. Computer Education Inst., Inc., case no. D044598. I received a couple of reports on the argument. One attendee wrote in:
Both [parties'] counsel stated that in light of Lytwyn and Benson and Bivens, Prop 64's retroactivity appears to be settled law in this district. Justice Aaron, who was on both opinions did not disagree, nor did anyone on the panel, including Chief Justice McConnell. It was clear from the way the issues were argued and dealt with that the panel agreed that the issue is settled law now in this district.
Another attendee reported:
It was obvious from their comments that the court is going to dismiss the claims of the unaffected plaintiff and remand with leave to amend the claims of the injured plaintiffs. In fact, the court didn't even want comments except to discuss the amendment issue.
Given that the Fourth Appellate District, Division Three, did not even bother to publish its opinion in Boling v. Michael Santa Maria last week, it does appear that the Fourth District (or at least Divisions One and Three of that District) views the retroactivity issue as settled. However, at least one pending case (Duran v. Superior Court (May Dept. Stores), no. E037693) would allow Division Two to weigh in. Many thanks to the readers who sent in those reports. UPDATE: A few hours after I put up this post, the Fourth Appellate District, Division Two, denied the petition for review in Duran.
 
"Who's a Journalist? Bar for Shield Law Protection Should Be Set Low"
An article in this morning's Daily Journal offers this definition of a "journalist":
A journalist is someone who distributes information, news or commentary and, in so doing, exercises editorial judgment. Under this definition, the technology of information delivery is irrelevant. Bloggers are not excluded categorically, nor are all traditional media necessarily covered. The essence of the definition is the requirement of an editorial function. The editorial requirement would exclude a publication that is a mere bulletin board, on which unscreened visitors can post anything they want. .... Also excluded are publications that knowingly publish fiction as fact, or purport to distribute mere rumor, without knowing or trying to determine the accuracy of the information or the reliability of their sources.
This blog, for one, meets that definition. When readers send me information about pending appeals, for example, I always check the court's website to confirm the information. When readers send me trial court orders, my task is a bit more difficult, because not all trial courts have docket information online. In many instances, I can at least check whether the case exists and whether a hearing was held on the date reported by the reader. If a reader sends me a copy of an order in electronic format, I make a judgment call about whether it appears to be facially authentic, based on my experience of what orders usually look like. Sometimes, the only way to truly confirm an order's existence and authenticity would be to physically go to the court clerk's office and check the file. I'm not able to do that, for obvious reasons that include constraints of time and geography. Therefore, my list of Prop. 64 orders has a prominent disclaimer. I have occasionally declined to post information that someone has sent me because I've determined that it is unreliable for some reason. If, after all my work and trouble, I don't get the protection of the shield law for my confidential sources, there's something wrong in the world.

UPDATE: Yesterday, the Electronic Frontier Foundation filed a writ petition on behalf of the bloggers against whom Santa Clara County Superior Court Judge James Kleinberg upheld Apple's subpoenas. And by the way, I don't mean to suggest that I think people send me inaccurate information. On the contrary, I appreciate every bit of information I receive from readers. I rely heavily on reader-provided information and this blog would be nowhere near as comprehensive without it. But since the information is going up with my name on it, I feel duty-bound to do my own independent investigation to the extent practicable.
Tuesday, March 22, 2005
 
Four new Prop. 64 appeals
I've become aware of four more pending Prop. 64 appeals, all of which have been added to my list: Counsel in Dunham and Duran kindly sent me copies of their briefs. The Dunham brief, in particular, raises some interesting arguments against the "statutory repeal" theory adopted in the Branick line of cases. The Duran brief argues (among other things) that the Branick line of cases failed to consider Government Code section 9605, which states, in part, that "[w]here a section or part of a statute is amended, it is not to be considered as having been repealed ...."
Monday, March 21, 2005
 
Today's oral argument on Prop. 64 continued
This morning, oral argument had been scheduled in Fair Business America, LLC v. Mattel, Inc., Third Appellate District, case no. C044134. However, last Thursday, the parties filed a stipulation to dismiss the appeal, and on Friday, the Court ordered the oral argument continued to a later date not yet determined. It remains to be seen whether the Court will accept the dismissal stipulation, since I believe the appellate courts do not always do so. This development is disappointing from a Prop. 64 point of view, because this case would have allowed another District to express its views on the retroactivity issue. I am not aware of any other Third District cases in which the issue has been raised.
Thursday, March 17, 2005
 
Kids Against Pollution briefs now available online
Many thanks to the reader who obtained and sent me copies of the two most recent Prop. 64 briefs filed in the Kids Against Pollution case, including the amicus brief filed on March 9. The briefs are now available at these links: The amicus brief makes the very interesting argument—which I hadn't heard before—that Business & Professions Code section 4 amounts to an express savings clause that precludes retroactive application of subsequent amendments to the UCL, including Prop. 64, under the "statutory repeal" rule. These briefs have been added to my list of Prop. 64 appellate briefs.
Wednesday, March 16, 2005
 
Federal judge weighs in on Prop. 64 retroactivity
In the first ruling I'm aware of from a federal court, United States District Judge John F. Walter of the Central District of California in Los Angeles followed the Branick line of cases in holding that Prop. 64 applies retroactivity to pending litigation. Luna-Sinay v. Liberty Life Assurance Co., case no. CV-04-9317-JFW MANx (C.D. Cal.) (minute order entered March 14, 2005). Many thanks to the reader who forwarded a copy of this order.
Tuesday, March 15, 2005
 
Petition for review filed in CDR v. Mervyn's
Yesterday, a petition for review was filed in Californians for Disability Rights v. Mervyn's, LLC, ___ Cal.App.4th ___ (Feb. 1, 2005). Here is a link to the docket. Many thanks to the reader who alerted me to this development. It makes sense that a petition for review would be filed in the Mervyn's case before any of the other Prop. 64 retroactivity cases, since Mervyn's was the first case to be decided at the appellate level. We should keep a lookout for review petitions in Branick, Benson, Bivens, and Lytwyn, in that order.
 
Court of Appeal issues unpublished opinion in Boling v. Santa Maria
Yesterday, the Court of Appeal (Fourth Appellate District, Division Three) issued an unpublished opinion in Boling v. Michael Santa Maria (no. G033691). The Court simply followed Benson v. Kwikset Corp. in holding that Prop. 64 applies retroactively to pending cases. The opinion is an anticlimax, because the Court had allowed multiple parties to file amicus briefs on the Prop. 64 retroactivity issue, leading everyone to expect a more in-depth analysis of the issue. I believe there were more amicus filings in the Boling case than in any other pending appeal so far. Notably, the Consumer Advocates v. DaimlerChrysler court—which also issued an anticlimactic, unpublished opinion—denied all amicus filing requests at around the same time the Boling Court was granting them.
Monday, March 14, 2005
 
Looking for Judge Kramer's order on same-sex marriage?
Welcome to everyone who was directed to this site by Google or another search engine in quest of Judge Richard A. Kramer's order in the same-sex marriage cases. The order can be accessed at this link. I found the link at How Appealing, which is doing a good job of summarizing the news reports on the order. If you're looking for more, I recommend looking there.
 
Upcoming appellate arguments on Prop. 64
Several pending appeals in which the Prop. 64 retroactivity issue has been raised are scheduled for oral argument over the next two weeks:

My list of Prop. 64 appeals includes each of these cases, and has also been updated to reflect recent developments in other pending appeals.
Sunday, March 13, 2005
 
"It's not whether bloggers are journalists, it's which are"
The San Francisco Chronicle has an interesting opinion piece today:
There is ... a subset [of bloggers] that fits the definition [of journalist] just fine: These bloggers find news or comment on it. They report fairly, if sometimes hyperbolically, and they editorialize on what they learn. They're identifiable and reachable, not hiding behind a virtual wall that allows them to be safely irresponsible. They allow interaction with readers -- critics and supporters alike. .... Over time, the verdict won't come from a judge or a commissioner or a supervisor. Consumers will decide which bloggers are journalists based on what they're willing to read and what they're willing to trust.

Saturday, March 12, 2005
 
"Judge: Apple can pursue those who leaked info"
The San Francisco Chronicle reports today that Santa Clara County Superior Court Judge James Kleinberg "refused Friday to block Apple Computer Corp.'s extraordinary efforts to track down people who leaked information about some of its secret projects to gossipy Apple news Web sites." The ruling itself states that the court did not need to decide, and was not deciding, whether bloggers are journalists:
Let there be no doubt: nothing in this opinion is meant to preclude the exchange of opinions and ideas, speculation about the future, or analysis of known facts. The rumor and opinion mills may continue to run at full speed. What underlies this decision is the publication of information that at this early stage of the litigation falls squarely within the definition of trade secret. The right to keep and maintain proprietary information as such is a right which the California legislature and courts have long affirmed and which is essential to the future of technology and innovation generally. The Court sees no reason to abandon that right even if it were to assume, arguendo, movants are "journalists" as they claim they are.
According to the Electronic Frontier Foundation, this ruling "crushes" the rights of all journalists, not just the rights of bloggers.
Friday, March 11, 2005
 
"Apple Should Think Differently About Blogger Suits"
Today's San Jose Mercury News has an open letter to Apple Computer from a longtime journalist:
I'm a grizzled veteran of the old media, and I sometimes cringe at the amateurish and malicious screeds that masquerade as journalism on the Web. But Apple is trying to punish online journalists for accurately reporting information on matters of intense public interest. That's exactly what journalists should do. .... Fortunately for Apple, this story is still largely confined to the blogosphere -- the online realm of bloggers talking to each other -- and publications that closely follow technology. So it's not too late for you to back down .... I recommend you quietly drop the litigation, tighten your internal security to prevent future leaks and move on.

 
Various recent developments re Prop. 64
On Monday, Judge Prager issued a final order on the motion to decertify the class in In re Tobacco Cases II, JCCP No. 4042. In that order, Judge Prager followed the Branick line of cases, rather than the Mervyn's case, in holding that Prop. 64 is retroactive. This order has been added to my list of Prop. 64 orders.

On Wednesday, the Supreme Court granted the request of Consumer Attorneys of California to file an amicus brief on the Prop. 64 issue in Kids Against Pollution v. California Dental Association, case no. S117156.

Finally, I've become aware of two more pending appeals in which the Prop. 64 retroactivity issue has been raised:
The appellate-level developments have not yet been added to my list of Prop. 64 appeals. I will try to find time to update that list over the weekend.
Thursday, March 10, 2005
 
Upcoming MCLE program on the UCL
On April 7-8, 2005, Bridgeport Continuing Education will present "17200 Litigation in California" at the Renaissance Hollywood Hotel in Southern California.
 
"Prop. 64 Author Leaves Firm to Join MoFo"
Today's Recorder has the story.
Wednesday, March 09, 2005
 
"Net buzzing on bloggers' status"
The San Francisco Chronicle has this story this morning. The Chronicle also covered the Apple case on the front page of yesterday's paper. The Electronic Frontier Foundation, which represents the bloggers, has collected all of the trial court briefs here. (Hat tip to How Appealing.) They make for interesting reading, if you're concerned about the legal status and rights of bloggers.
 
Recent UCL decision: ReadyLink Healthcare v. Cotton
On February 14, 2005, the Court of Appeal (Fourth Appellate District, Division Two), issued its opinion in ReadyLink Healthcare v. Cotton, ___ Cal.App.4th ___ (Feb. 14, 2005). The opinion affirms the trial court's issuance of a preliminary injunction, holding that plaintiff had established that it was likely to prevail on its UCL claim:
In the instant case, there is ample evidence supporting the trial court's finding that Cotton misappropriated trade secret information and committed acts of unfair competition such that it is reasonably likely ReadyLink will prevail on its misappropriation claims and that denying a preliminary injunction will likely cause irreparable harm to ReadyLink.
(Slip op. at 18; see also id. at 12.) The injunction required the defendant, a former employee who went to work for one of the plaintiff's competitors, to stop using plaintiff's proprietary information in connection with his new job. The plaintiff did not bring the UCL claim on behalf of the general public but only individually. Notably, the Court of Appeal did not treat the UCL claim any differently from the other claims in assessing whether a preliminary injunction was appropriate.
Tuesday, March 08, 2005
 
New decision mentions Prop. 64 in footnote: Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc.
Yesterday, the Court of Appeal (Second Appellate District, Division Seven) issued an opinion with the following footnote:
Consumer Cause did not allege it had actually purchased the products at issue or had otherwise been exposed to them. Because Consumer Cause’s right to initiate the lawsuit is not at issue on appeal, we need not address the November 2004 amendments to the requirements for standing to sue under the unfair competition law (see Initiative Measure (Proposition 64, § 3) approved November 2, 2004, effective November 3, 2004), or determine whether those amendments are retroactive.
Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc., ___ Cal.App.4th ___ (Mar. 7, 2005) (slip op. at 3 n.4). The decision itself is quite interesting. It held that the trial court properly declined to award attorney's fees to a class action objector whose involvement completely scuttled the settlement and eventually prompted the plaintiff to dismiss the entire action without prejudice. Under such circumstances, the appellate court held, the objector did not confer a "substantial benefit" on anyone. The lesson to class action objectors: Be careful what you wish for. In all seriousness, this decision will probably encourage objectors to become involved in strong cases with strong settlements, in which the objector's participation is unlikely to intimidate the parties, but discourage objectors from becoming involved in weaker cases, in which the objection might do some real good. As the decision concludes, "providing assistance to the court in its effort to protect class members from unfair settlements, while laudable, alone is not a sufficient basis for recovery of attorney fees. The objector's efforts must also produce significant benefit to the class of passive beneficiaries from whom it seeks payment of its fees." Slip op. at 12.
Monday, March 07, 2005
 
"At a Suit's Core: Are Bloggers Reporters, Too?"
Today's New York Times has this interesting report. It explores the idea of whether some, but not all, bloggers should be entitled to the same protections journalists enjoy, depending on whether they "report, in the usual sense of cultivating sources, actively gathering information and then organizing and presenting it to the public."
 
New UCL decision: Wolski v. Fremont Inv. & Loan
On Friday, in Wolski v. Fremont Inv. & Loan, ___ Cal.App.4th ___ (Mar. 4, 2005) (opinion on rehearing), the Court of Appeal (Fourth Appellate District, Division Three) reiterated the rather obvious proposition that a UCL "unlawful" prong claim fails if the plaintiff cannot establish a violation of the underlying law:
Because the cause of action for violation of Business and Professions Code section 17200 was predicated on the violation of the predatory lending law, it, too, must fail.
(Slip op. at 12.) This case, once again, illustrates why it's best to plead the UCL's three prongs separately, whenever factually and legally possible. My post on the original Wolski opinion is here.
Sunday, March 06, 2005
 
"Free Speech Case Opens"
Yesterday's San Francisco Chronicle had this report on the Apple Computer case in Santa Clara County, which tests whether bloggers are entitled to the same legal protections as traditional journalists.
Friday, March 04, 2005
 
Three new trial court orders
I've updated my list of Prop. 64 orders to include these three, two of which (Andres and Zamani) hold that Prop. 64 does NOT apply to pending cases:
The Zamani order is significant in that it is the first to come out of Santa Clara County. The reader who kindly forwarded this order reported that:
Judge Kevin McKenney dealt with the retroactivity question by simply stating that there were differences in the courts of appeal in that the First District had held it was not retroactive and the Second and Fourth Districts had held otherwise, but neither decision was binding on him and that unless and until the Sixth District issued a ruling directing otherwise he would continue to apply Prop. 64 non-retroactively.
I am unaware of any Sixth District pending appeals in which the Prop. 64 retroactivity question has been raised.
Thursday, March 03, 2005
 
Apple Computer sues bloggers
Speaking of Apple Computer, the Daily Journal reports today that the computer manufacturer has sued several bloggers for allegedly revealing trade secrets about new products, and has subpoenaed several other bloggers to find out where they obtained certain information that they posted on their sites. The article reports:
Legal observers say the Apple litigation poses the first test in California of whether these operators of Web log sites - or "blogs," as they are commonly known - enjoy the same protections as reporters for traditional news organizations.
As a blogger, I can say categorically that blogging makes you a journalist, whether you want to be one or not. I have a lot of confidential sources who provide me with information that I post on my site. Sometimes, the news I report on overlaps what reporters from "real" newspapers (such as the Recorder and the Daily Journal) put in their stories. Since I started blogging in October 2003, I have faced a number of journalism-related ethics questions, and I have often wished I had studied the subject in school. I just hope the judge who is hearing Apple's case is already familiar with blogs and will be able to perceive this reality.

UPDATE: The San Jose Mercury News reports here that the judge tentatively ruled yesterday that "Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products." The case is being argued today. (Thanks to How Appealing for the pointer.)

UPDATE: I've now heard from two three different confidential sources that during the hearing on March 4, Judge Kleinberg quoted (without attribution) some of my comments from this post. Wow.
 
New UCL decision: Apple Computer, Inc. v. Superior Court
On February 17, 2005, the Court of Appeal (Second Appellate District, Division One) issued its opinion in Apple Computer, Inc. v. Superior Court, ___ Cal.App.4th ___ (Feb. 17, 2005). Apple Computer is more of a class certification case than a UCL case, but there is one very interesting thing about it from a UCL standpoint. Footnote three reads:
The parties have not raised, and we do not address, whether a cause of action under the UCL can be maintained as a class action. (See Corbett v. Superior Court (2002) 101 Cal.App.4th 649, 653–655, 657–663; id. at pp. 680–689 (dis. opn. of Haerle, J.).)
(Slip op. at 5 n.3.) Corbett is the landmark decision holding that UCL claims may be certified for class treatment if the plaintiff can satisfy the requirements of Code of Civil Procedure section 382. Justice Haerle filed a lengthy dissent from that holding, cataloging the differences that he perceived between a traditional class action and a UCL representative action. The Supreme Court declined review.

Footnote three of Apple Computer suggests that the Second Appellate District, Division One, is not convinced that UCL claims can be certified for class treatment. What's strange about this is that, as we all know, Proposition 64 amended the UCL to resolve any doubt about the class certification question. Now, most UCL claims not only can, but must, be certified for class treatment if relief is to be granted on behalf of anyone other than the named plaintiffs. (Arguably, Prop. 64's class certification language does not apply to UCL claims for injunctive relief, but that's a topic for another day.) The Apple Computer court did not mention Prop. 64 or whether it applies retroactively to cases filed before its effective date, as that case was. Are we to assume that the Second Appellate District, Division One, believed that Prop. 64 did not apply to the case, thus leaving open the question of whether class certification of UCL claims was possible in the pre-Prop. 64 world?
Tuesday, March 01, 2005
 
Rehearing denied in Benson v. Kwikset Corp.
Yesterday, the Court of Appeal (Fourth Appellate District, Division Three), denied the petition for rehearing in Benson v. Kwikset Corp., ___ Cal.App.4th ___ (Feb. 10, 2005). Here is the docket.
 
Publication denied in Consumer Advocates v. DaimlerChrysler Corp.
Yesterday, the Court of Appeal (Fourth Appellate District, Division Three) denied the multiple publication requests in Consumer Advocates v. DaimlerChrysler Corp. (unpublished opinion issued 01/31/05). Here is the docket. Pursuant to Rule of Court 978(b)(1), the publication requests will be forwarded to the Supreme Court, which will take a second look.
 
Rehearing denied in Californians for Disability Rights v. Mervyn's
Today, the Court of Appeal (First Appellate District, Division Four), denied the petition for rehearing in Californians for Disability Rights v. Mervyn's, LLC, ___ Cal.App.4th ___ (Feb. 1, 2005). Here is the docket. And yesterday, a depublication request was filed with the Supreme Court by Covenant Care California and others. At least one opposition to that request has already been filed.
 
Blogosphere comment on the Class Action "Fairness" Act
Notes from the (Legal) Underground had some interesting thoughts recently about the practical impact of the "Fairness" Act. Among other things, that blog's author observed:
Many lawyers accustomed to state court won’t adapt [to the new rules]. By driving the small-firm competition away from class actions, the law will strengthen many large plaintiffs’ firms. Companies that have wronged consumers might find themselves faced with more lawsuits, not less, since one response to the new law, which makes multistate class actions harder to achieve, will be to file the same lawsuits in the federal court of every state with a large population…. The problems big business will face will be offset somewhat by its new ability to wrong consumers in small amounts without having to worry so much about being sued; in the end, it’s the ordinary consumer who stands to lose the most from the new law.


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