The UCL Practitioner
Wednesday, December 24, 2003
Recent UCL decisions
Several recent decisions have addressed whether the narrower Cel-Tech formulation of "unfair" applies in consumer cases as well as actions between competitors:

** In Pastoria v. Nationwide Insurance, ___ Cal.App.4th ___ (Oct. 31, 2003), the court held that the pre-Cel-Tech test should apply in consumer actions (although it also found that either test had been met) (citing Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal.App.4th 700, 720 n.23 (2001)).

** In Kunert v. Mission Financial Services Corp., 110 Cal.App.4th 242 (2003), the court applied the pre-Cel-Tech formulation of "unfair," observing that "[t]he Supreme Court has not yet enunciated a legal test for unfairness in consumer actions under the unfair competition law."

** In Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 940 (2003), the court held that "Cel-Tech narrowed the expansive earlier interpretations of the term 'unfair'" (citing Gregory v. Albertson's, Inc., 104 Cal.App.4th 845, 854 (2002)), then employed a somewhat modified version of the pre-Cel-Tech formulation of "unfair."

Other interesting UCL decisions over the past several months include:

** Consumer Cause, Inc. v. National Vision, Inc., ___ Cal.App.4th ___ (Sept. 3, 2003), in which the original opinion contained the following obviously wrong statement: "In any event, Consumer did not and could not allege that National's conduct, even if unlawful, caused harm, a necessary element of a section 17200 cause of action." The opinion was amended three weeks later to omit that sentence and to hold instead that Consumer failed to allege facts that would permit recovery of restitution. The modification order is accessible here. The original opinion can be viewed here.

** Herr v. Nestle U.S.A., Inc., 109 Cal.App.4th 779 (2003), in which the court held that age discrimination may be enjoined under section 17200.

** Plotkin v. Sajahtera, Inc., 106 Cal.App.4th 953 (2003), in which the court held that it was not "fraudulent" within the meaning of the UCL for a hotel not to post its valet parking rates in a conspicuous place separate from the parking ticket itself. The court observed: "[C]ommon sense dictates it would be unreasonable for someone availing himself of valet parking at a hotel in the Los Angeles metropolitan area, much less Beverly Hills, not to expect to pay for valet parking. The ticket provides reasonable and advance notice of the charge."
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