"Firms' drive on lawsuits attacked: Critics say Prop. 64 is being used to purge pending cases"
Yesterday's Sacramento Bee had the story.
- posted by Kim Kralowec @ 4:02 PM  | Comments (0) |

 
New Prop. 64 order hot off the presses: California Law Institute v. VISA USA, Inc.
Many thanks to the reader who very promptly informed me that today, Judge Richard A. Kramer of the Superior Court for the City and County of San Francisco denied a motion for judgment on the pleadings, holding that Prop. 64 does not apply to pending cases. California Law Institute v. VISA USA, Inc., San Francisco Superior Court case no. CGC-03-421180, Judge Richard A. Kramer (order dated 12/29/04). Judge Kramer is the complex litigation judge in San Francisco, so his legal conclusions on retroactivity may impact a lot of cases in Northern California.
- posted by Kim Kralowec @ 4:46 PM  | Comments (1) |

 
"Big Business Lied to Voters, Says FTCR; Corporations Use Prop 64 to Attack Pending Consumer Protection Suits"
The Foundation for Taxpayer and Consumer Rights issued this press release yesterday via U.S. Newswire. (Thanks to So Cal Law Blog for the pointer.)
- posted by Kim Kralowec @ 9:11 PM  | Comments (0) |

 
"Citing Prop. 64, Firms Seek to Kill Lawsuits"
Today's Los Angeles Times has the story. The email message referred to in the story is attached as Exhibit A to the amicus brief filed by the CAOC in the Consumer Advocates case.
- posted by Kim Kralowec @ 9:51 AM  | Comments (7) |

 
17200 blog hiatus
I'm taking a few days off for the holidays, so posting will be less frequent over the next week or so. My sincere thanks to all the readers who have sent me Prop. 64 orders and other materials. This blog is only as comprehensive as you help me make it. Please keep writing in with orders, briefs, appellate decisions, and news on the UCL and Prop. 64. If anything truly significant occurs over the next week, I will do my best to report on it here. In the meantime, Happy Holidays to all!
- posted by Kim Kralowec @ 7:26 AM  | Comments (0) |

 
Three more Prop. 64 tentative rulings
I've obtained copies of three more tentative rulings on the retroactivity question, all holding that Prop. 64 applies to pending cases. Please note that I have no information on whether these tentative rulings were contested, argued, or adopted in the form in which I received them:

• Bivens v. Sanford, Los Angeles County Superior Court case no. SC075348 (South Central District, Compton), Judge Victoria M. Chavez (tentative ruling dated 12/03/04)
  
  
• Coe v. Anna’s Linen Co., Orange County Superior Court case no. 04CC00660, Judge Jonathan H. Cannon (tentative ruling dated 12/16/04)
  
  
• United Policyholders v. Willis Group Holdings, Ltd., San Diego County Superior Court case no. GIC833705, Judge John S. Meyer (tentative ruling dated 12/17/04)

If the Coe tentative was adopted, then two judges of the Orange County Superior Court have reached opposite conclusions about whether Prop. 64 is retroactive.
- posted by Kim Kralowec @ 7:15 AM  | Comments (0) |

 
"Defense firms hail Prop. 64: Tougher standards for suing companies—but retroactivity is an issue"
This week's National Law Journal has the story (subscription required). It begins, "Six weeks after the landslide passage of California's Proposition 64, no fewer than 17 of the state's largest defense firms are sending celebratory messages to clients in the form of online client alerts." Sounds familiar, doesn't it? In fact, a lot of the points in the story sound very, very, very familiar. Maybe I need a copyright lawyer. (Thanks to May it Please the Court for the pointer.)
- posted by Kim Kralowec @ 9:25 AM  | Comments (0) |

 
Another new Prop. 64 retroactivity order: Center for Biological Diversity v. County of San Bernardino
Many thanks to the reader who informed me that on Monday, Judge John Wade of the San Bernardino County Superior Court denied a motion to strike a UCL claim, holding that Proposition 64 was not intended to apply retroactively to pending cases. Judge Wade reportedly reasoned that Proposition 64 “did not on its face indicate any intent regarding retroactivity and that applying it retroactively will have a substantive effect on Plaintiffs’ claims, citing McClung, Aetna, Tapia, and Evangelatos.” Center for Biological Diversity v. County of San Bernardino, San Bernardino County Superior Court case no. SCVSS111660 (ruling of 12/20/04).
- posted by Kim Kralowec @ 12:03 AM  | Comments (0) |

 
Another Supreme Court petition for review raises Prop. 64 retroactivity issue: Virtual Media Group, Inc. v. Regency Outdoor Advertising, Inc.
A petition for review filed on December 8, 2004 raises the Proposition 64 retroactivity issue. Virtual Media Group, Inc. v. Regency Outdoor Advertising, Inc., no. S129816. And then there were four.
- posted by Kim Kralowec @ 12:02 AM  | Comments (0) |

 
New UCL decision: Wolski v. Fremont Inv. & Loan
On Monday, the Court of Appeal ordered publication of Wolski v. Fremont Investment & Loan, ___ Cal.App.4th ___ (Nov. 2, 2004). A demurrer to the plaintiff's UCL claim was properly sustained without leave to amend, the court held, because as a matter of law, the alleged conduct did not violate Financial Code sections 4970 et seq. (the predatory lending 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 6. Again, I must emphasize the importance for plaintiffs of alleging each prong of the UCL separately ("unfair" vs. "fraudulent" vs. "unlawful"), whenever factually and legally possible.
- posted by Kim Kralowec @ 12:01 AM  | Comments (0) |

 
"Commentary: Prospective Application of Proposition 64 to Pending UCL Representative Actions"
The December 2004 issue of Mealey's California Section 17200 Report has this article. It is a well-written discussion of the Prop. 64 retroactivity issue from the defense perspective.
- posted by Kim Kralowec @ 9:03 AM  | Comments (0) |

 
Prop. 64 raised in pending Cal. Supreme Court case: Kids Against Pollution v. Cal. Dental Assn.
According to this link, a supplemental brief filed on December 10, 2004 in Kids Against Pollution v. California Dental Assn., no. S117156 (rev. granted 09/17/03), raises the Proposition 64 issue. The Court of Appeal opinion was originally published at Kids Against Pollution v. California Dental Assn., 108 Cal.App.4th 1003 (2003), and held that the defendant's anti-SLAPP motion should have been granted. The Supreme Court's main case screen describes the issue on review as follows:

Petition for review after the Court of Appeal reversed an order denying a special motion to strike. This case includes the following issue: Were all of plaintiffs’ causes of action under the Unfair Competition Law (Bus. & Prof. Code, §17200 et seq.), based upon various aspects of the defendant dental association’s course of conduct relating to the health controversy over the safety of mercury amalgam fillings, subject to a special motion to strike under Code of Civil Procedure section 425.16?

This case reminds me of Northern California Carpenters Regional Council v. Warmington Hercules Associates, ___ Cal.App.4th ___ (Nov. 22, 2004), in which the Court of Appeal decided an anti-SLAPP issue without even mentioning Prop. 64 or its potential impact. (See my original post on the Northern California Carpenters case.) That makes at least two petitions for review and one pending case in which the Supreme Court has been asked to decide the Proposition 64 retroactivity question.
- posted by Kim Kralowec @ 9:02 AM  | Comments (0) |

 
Thank you, fellow bloggers
Thanks to Point of Law, The Legal Reader, California Labor & Employment Law, and May it Please the Court for their recent posts mentioning The UCL Practitioner.
- posted by Kim Kralowec @ 9:04 AM  | Comments (0) |

 
List of Proposition 64 orders
I've posted a list of all the Proposition 64 orders of which I'm aware. The list will be updated periodically. If you know of other orders that should be listed, please write in.
- posted by Kim Kralowec @ 9:03 AM  | Comments (0) |

 
Consumer Advocates briefs back online
Most of the Consumer Advocates briefs are once again accessible online.
- posted by Kim Kralowec @ 10:26 AM  | Comments (0) |

 
Another Supreme Court petition for review raises Prop. 64: Poirer v. State Farm Mutual Auto Ins. Co.
I am informed that a petition for review filed in Poirer v. State Farm Mutual Auto. Ins. Co., case no. S129439, raises the Proposition 64 retroactivity issue. In its original unpublished decision, the Second Appellate District, Division Eight, followed Donabedian v. Mercury Insurance Co., 116 Cal.App.4th 968 (2004), in holding that the UCL may be used to enforce Proposition 103, which regulates auto insurance companies. See Poirer v. State Farm Mutual Auto. Ins. Co., case no. B165389 (unpublished decision issued 10/15/04). Although this point is not mentioned in the unpublished decision, the plaintiff was apparently not one of the defendant's policyholders.
- posted by Kim Kralowec @ 10:00 AM  | Comments (0) |

 
New email address
Please send all future messages to UCLPractitioner@gmail.com. My old Earthlink account can no longer handle the volume of orders, news and interesting information I've been getting from my readers. Please keep it coming!
- posted by Kim Kralowec @ 9:14 AM  | Comments (0) |

 
Yet another new Prop. 64 order
A reader writes in:

On December 15, 2004, Judge Peter J. Polos of the Orange County Superior Court overruled a demurrer ... arguing Proposition 64 barred a UCL action against GE Capital (Litalien v. GE Capital Corp., Case No. 04CC10082). There is no written ruling but the Judge explained that "intent" that the initiative's changes apply to pending cases was not apparent and therefore it could not be applied to pending cases. He rejected the "statutory repeal" doctrine because the entire statute was not repealed and because that doctrine does not override the focus on intent in recent case law.

This is the first order that I'm aware of in which the court considered, and rejected, the "statutory repeal" argument. I'm told that a formal order is being prepared. When I get it, I will put it up.
- posted by Kim Kralowec @ 9:05 AM  | Comments (0) |

 
Review granted in UCL case: Prachasaisoradej v. Ralphs Grocery
Yesterday, the Supreme Court granted review in Prachasaisoradej v. Ralphs Grocery Co., 122 Cal.App.4th 29 (2004), in which the plaintiff, a produce manager at Ralphs, alleged that his employer deducted certain expenses from his bonus checks in violation of the Labor Code. His UCL "unlawful" prong claim was predicated on those alleged violations. The Court of Appeal held that the claim was not preempted and that the defendant's demurrer was improperly sustained. The Supreme Court's order reads:

The issue to be briefed and argued is limited to the following: Does an employee bonus plan based on a profit figure that is reduced by a store's expenses, including the cost of workers compensation insurance and cash and inventory losses, violate (a) Business and Professions Code section 17200, (b) Labor Code sections 221, 400 through 410, or 3751, or (c) California Code of Regulations, title 8, section 11070?

My original post on the Prachasaisoradej decision is here.
- posted by Kim Kralowec @ 4:32 PM  | Comments (0) |

 
"Retroactive 64"
Today's Daily Journal has this short piece on an order in Banales v. AT&T Wireless, Los Angeles County Superior Court case no. BC312007, holding that Prop. 64 applies to pending cases. I will see if I can find this order. If you have it, please email me.

UPDATE: This appears to be the same case as Banales v. Superior Court (AT&T Wireless Services, Inc.), No. B177019 (Dec. 3, 2004), in which an unpublished opinion was issued on December 3, 2004. See this post for more on that opinion.

UPDATE: Here is a copy of the Banales order. Many thanks to the reader who sent it to me.
- posted by Kim Kralowec @ 10:52 AM  | Comments (0) |

 
Another trial court order on Prop. 64
In Plaintiff's Overtime Wage Enforcement & Remedies Group v. FedEx Kinko's Office & Print Servs., Inc., San Mateo County Superior Court case no. 440481, Judge Mark R. Forcum Beth Labson Freeman issued the following tentative ruling dated yesterday:

SUSTAIN Defendant FedEx Kinko’s Demurrer to the Complaint. The court finds that Prop 64, amending Bus. & Prof Code sec. 17200, et seq. applies to this case. The parties agree that Plaintiff does not allege that it suffered any injury alleged in the complaint and that the case is not brought as a class action under CCP sec. 382. They agree that the amendments to sec. 17204, if applicable to this case, would preclude the action going forward in the name of Plaintiff POWERG. They disagree as to whether the newly enacted statute applies to this case, which was filed prior to the effective date of Prop 64. The court finds that Prop 64 does not change the legal consequences of past conduct by imposing new or different liabilities based on such conduct. See, Tapia v. Superior Court (1991) 53 Cal. 3d 282, 291. The court finds that Prop 64 is “procedural” as to the issues of standing and the elimination of private party representative actions absent allegations under CCP sec. 382 and thus Prop 64 applies to this case. See, Physicians’ Committee for Responsible Medicine v. Tyson’s Foods, Inc. (2004) 119 Cal. App. 4th 120, 125; Brenton v. Metabolife International, Inc. (2004) 116 Cal. App. 4th 679,689. The court further SUSTAINS the Demurrer on the grounds that POWERG has failed to allege facts sufficient to establish that it is a proper party under the pre-Prop 64 provisions of sec. 17200, et seq. There are no allegations that POWERG may maintain this action under sec. 17201, or 17204. Leave to amend on this ground would have been granted but for the court’s ruing regarding the applicability of Prop 64.

I'm told that Judge Forcum Freeman adopted this tentative ruling after oral argument yesterday. Also, the court's website indicates that tentative rulings are kept online for only five calendar days, so I've archived a copy in pdf format. Merci beaucoup to the person who sent me this information. CORRECTION: It was actually Judge Freeman, not Judge Forcum, who issued this tentative ruling. My apologies.

UPDATE: The archived pdf file has now been updated to reflect that the tentative was authored by Judge Freeman.
- posted by Kim Kralowec @ 9:03 AM  | Comments (0) |

 
Another judge holds that Prop. 64 does not apply to pending cases
In Bravo v. Soares Dairy, Stanislaus County Superior Court case no. 345216, Judge Hurl W. Johnson, III issued the following tentative ruling on Monday, December 13, 2004:

.... On the basis of the letter briefs filed by the parties the Court finds that the Plaintiffs' unfair business practices claims under Business and Professions Code Section 17200 can proceed. The text of Proposition 64 passed by California voters on 11/3/04 does not clearly make the effect of the statute retroactive, and therefore the change in the law cannot be enforced retroactively. "A statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactivity." McClung v. Employment Development Department (November 4, 2004) 2004 Cal. Lexis 10527. This strong presumption applies equally forcefully to ballot initiatives enacted by the electorate. See e.g. Evangelatos v. Superior Court (1988) 44 Cal 3d 1188, holding that Proposition 51 should only be applied prospectively.

I am informed that Judge Johnson adopted this tentative ruling insofar as Proposition 64 is concerned, but that a final order has not yet been issued. Many thanks to the reader who forwarded this ruling. (UPDATED to include a link to a copy of the tentative ruling.)
- posted by Kim Kralowec @ 4:53 PM  | Comments (0) |

 
Consumer Advocates briefs
Most of the Prop. 64 briefs in Consumer Advocates v. DaimlerChrysler Corp., case no. G029811 (Fourth Appellate District, Division Three), are now available online:

• Consumer Advocates' letter brief on Proposition 64 (filed 12/03/04)
  
  
• DaimlerChrysler's letter brief on Proposition 64 (filed 12/03/04)
  
  
• Amicus curiae brief of Consumer Attorneys of California and other groups in support of Consumer Advocates (application for leave to file submitted on 12/03/04)
  
  
• Amicus curiae brief of AARP in support of Consumer Advocates (application for leave to file submitted on 12/03/04)
  
  
• Amicus curiae brief of Readylink Healthcare, Inc. in support of DaimlerChrysler (application for leave to file submitted on 12/06/04)
  
  
• Amicus curiae brief of Jacq Wilson in support of Consumer Advocates (application for leave to file submitted on or about 12/14/04)

Although numerous parties wished to participate as amici curiae, on Monday, the Court of Appeal denied all of the then-pending requests and ordered the case "submitted this date for the time permitted by law." This means that we can expect a decision no later than March 13, 2005. (See Cal. Const, Art. VI, sec. 19; Gov. Code §68210.) My guess is they rule long before that.

UPDATE: Four of the above links are now password-protected. Needless to say, there was no password-protection when I drafted this post. The briefs are a matter of public record, and I urge those who are maintaining the site to remove the password-protection from those four documents. Meanwhile, I will revise my links as soon as I can.

UPDATE: I'm happy to report that most of the broken links have been replaced. My sincere thanks to counsel for Consumer Advocates for helping me make these briefs available online.
- posted by Kim Kralowec @ 10:28 AM  | Comments (0) |

 
Recent Prop. 64 retroactivity orders
The trial courts have been busy. So far, I've identified the following orders on the Prop. 64 retroactivity question:

• Twomey v. Hansen Information Technologies, Sacramento County Superior Court case no. 03AS03632, Judge Thomas M. Cecil (tentative ruling dated 11/10/04)
  
  
• Pepe v. Waagenaar, Los Angeles County Superior Court case no. LC069018 (Northwest District, Van Nuys East), Judge Richard Adler (tentative ruling dated 11/15/04)
  
  
• Dohrmann v. Tosco Refinery Co., Los Angeles County Superior Court case no. BC275234, Judge Alan Buckner (notice of order dated 12/03/04)
  
  
• Kim v. Bayer Corp., Los Angeles County Superior Court case no. BC309926, Judge David A. Workman (order dated 12/10/04)
  
  
• Goodwin v. Anheuser-Busch Cos., Los Angeles County Superior Court case no. BC310105, Judge Peter D. Lichtman (order dated 12/13/04)
  

All of these orders except Twomey state that Prop. 64 applies to pending cases. However, the Pepe and Dohrmann orders do not mention the retroactivity question, much less decide it on the merits. I'm told that the Pepe order is the one referred to in the December 1 Recorder article. The Goodwin order, which is the most detailed, invites immediate appellate review under Code of Civil Procedure section 166.1. And the Kim order contains the following language: "The Unfair Business Practices Act contains the substantive law, left fully in tact [sic] by Proposition 64." (Kim order at 5.) Here's the silver lining for plaintiffs. If the appellate courts hold that Prop. 64's amendments apply to pending cases because they are procedural, it will be very hard for defendants to argue that the UCL's substantive requirements have changed—especially given language like that of the Kim order.

Thanks to everyone who sent these orders to me. If you know of any other trial court orders, please email me.
- posted by Kim Kralowec @ 9:32 AM  | Comments (2) |

 
Krumme answer to petition for rehearing
Here's the answer to the petition for rehearing filed in Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924 (2004). Many thanks to Mr. Krumme's attorneys for permission to post their excellent brief. The answer does a very good job of debunking the so-called "statutory repeal" theory relied on by many defendants in support of the argument that the Proposition 64 amendments apply to pending cases. The Court of Appeal summarily denied the petition for rehearing on November 29.
- posted by Kim Kralowec @ 9:42 AM  | Comments (0) |

 
Depublication sought in Baxter v. Salutary Sportsclubs, Inc.
Thanks to the reader who informed me that a depublication request has been filed in Baxter v. Salutary Sportsclubs, Inc., ___ Cal.App.4th ___ (Sept. 28, 2004). In Baxter, the Court of Appeal denied an attorneys fees request under Code of Civil Procedure section 1021.5, holding that the plaintiffs' UCL claim, while successful, conferred only a "miniscule" benefit on the general public. Here's my original post on that decision, and here's the docket.
- posted by Kim Kralowec @ 8:21 AM  | Comments (0) |

 
"Post-Proposition 64: What Remains of California's Unfair Competition Law?"
This article reportedly appeared in last Monday's Recorder.
- posted by Kim Kralowec @ 8:19 AM  | Comments (0) |

 
Petition for review filed in Krumme
Last Thursday, December 9, the defendant in Krumme v. Mercury Ins. Co., 123 Cal.App.4th 924 (2004) (rehearing summarily denied 11/29/04) filed a petition for review with the California Supreme Court. The docket is accessible here. For more on Krumme, see these posts.

UPDATE: Footnote three of the petition for review cites this blog. The fact that I compiled a list of online law firm articles addressing Prop. 64 hardly means that review should be granted in Krumme. I appreciate the cite, but anyone could have done the same. Moreover, all but one of those articles were client "alerts" written by defense firms. Defense attorneys have been issuing client "alerts" for years, long before they started posting them online. These "alerts" play a valuable role in client service and development, and when I was a defense attorney, I authored them myself. If their prevalence were reason for the Supreme Court to grant review, the defense bar would enjoy an unprecedented degree of control over the Court's docket. That's something I trust will never happen.
- posted by Kim Kralowec @ 11:29 AM  | Comments (0) |

 
Unpublished UCL decision mentions Prop. 64
In Sanchez v. Giromex, Inc., no. D042459 (Dec. 2, 2004), plaintiffs' UCL and CLRA claims were summarily adjudicated in the defendant's favor. The Fourth Appellate District, Division One, affirmed the judgment. The opinion's final footnote reads: "We leave for another day the issue of any effect Proposition 64 might have on the factual scenario presented in this case." Slip op. at 31 n.11. Since the plaintiffs were allegedly affected and had obtained class certification (slip op. at 3), Prop. 64 probably would have had little or no impact on this case. The "likely to deceive" standard, which the court employed (slip op. at 22-23), survived the Prop. 64 amendments. The proposition carefully avoids saying that anyone other than the representative plaintiff need have suffered "actual injury" or "loss of money or property." (Thanks to RH for bringing this case to my attention.)
- posted by Kim Kralowec @ 9:26 AM  | Comments (0) |

 
Last week's MCLE on Proposition 64
California Labor & Employment Law has some interesting thoughts on last week's MCLE program. I also attended the program, and it was very good. I must say I thought the plaintiffs' attorneys' presentations were more persuasive on the retroactivity issue.
- posted by Kim Kralowec @ 11:11 AM  | Comments (0) |

 
"Trial Lawyers Climb Back in Ring"
Tuesday's Recorder had the story, which began: "Last year was a bad one for California's consumer attorneys. The political blows landed early and never let up, culminating in the knockout punch of Prop 64." The article ended on a hopeful note, observing that nine new progressive Assembly members were elected on November 2.
- posted by Kim Kralowec @ 8:01 PM  | Comments (0) |

 
17200 blog hiatus
Posting may be sporadic for the rest of the week, as I am traveling on business. Many thanks to all the readers who have been writing in lately. I really appreciate the positive feedback I've been getting. Please continue to write in with UCL and Prop. 64 news, orders, briefs, etc.
- posted by Kim Kralowec @ 11:23 PM  | Comments (0) |

 
New UCL decision: Northern Cal. Carpenters Regional Council v. Warmington Hercules Assoc.
Given the pace of recent UCL developments, this news is a bit old, but in Northern California Carpenters Regional Council v. Warmington Hercules Associates, ___ Cal.App.4th ___ (Nov. 22, 2004), the First Appellate District, Division One, affirmed an order denying an anti-SLAPP motion, holding that the UCL claim fell within Code of Civil Procedure Section 425.17. The Court did not mention Proposition 64, even though:

The complaint ... does not in fact seek any monetary or injunctive relief directly benefiting the Plaintiffs. The wronged class is alleged to be non-union workers on the Defendants’ projects who were not paid the prevailing wage. The Carpenters Regional Council[, a labor union,] obviously does not belong to the class of non-union workers, and the complaint does not allege that the individual Plaintiff ... belongs to this class. Instead, the complaint seeks to vindicate public policy by assuring enforcement of the City’s Prevailing Wage Policy.

Slip op. at 4. The decision also discusses whether the anti-SLAPP amendment applies retroactively, and concludes that it does.
- posted by Kim Kralowec @ 6:20 PM  | Comments (0) |

 
Appellate panel ignores Proposition 64 in unpublished opinion
Many thanks to the reader who alerted me to Banales v. Superior Court (AT&T Wireless Services, Inc.), No. B177019 (Dec. 3, 2004), an unpublished opinion issued yesterday. In Banales, the Second Appellate District, Division Eight, completely ignored Proposition 64 in reversing the trial court's order striking the unaffected plaintiff's prayer for restitution. In so holding, the Court declared that "the UCL permits a private plaintiff who has suffered no injury at all to sue to obtain relief for others, including restitution," and that "sections 17203 and 17204 confer standing to prosecute actions for relief not only on the public officials named therein, but also on private individuals, and a private plaintiff who has suffered no injury may sue to obtain injunctive relief for others." Slip op. at 3, 5. The Court took pains to distinguish UCL class actions from UCL representative actions, and proclaimed it a "settled issue that section 17204 confers standing on private individuals who have suffered no injury to sue to obtain injunctive relief and restitution for others." Id. at 6. The Court concluded:

[Plaintiff] did not allege he was an AT&T customer or that he was suing in an individual capacity. He clearly is suing solely in a representative capacity. But the fact [that plaintiff] may not individually be entitled to restitution does not mean his allegations regarding restitution are improper. The allegations are proper for the very reason that he is suing in a representative capacity, which sections 17203 and 17204 clearly allow.

Id. The docket suggests that the Proposition 64 retroactivity issue may have been brought to the Court's attention. I can only conclude that the panel believed that Proposition 64 did not apply to pending cases filed before its effective date.
- posted by Kim Kralowec @ 8:20 PM  | Comments (1) |

 
Justice Chin mentions Proposition 64
In his dissenting opinion in Graham v. DaimlerChrysler Corp., ___ Cal.4th ___ (Dec. 2, 2004), Justice Chin (joined by Justices Baxter and Brown) had this to say about Proposition 64:

At a time when Californians are increasingly concerned about extortionate lawsuits against businesses, large and small, and worried that the legal climate in California is so unfriendly to businesses that many are leaving the state and others are deterred from coming here in the first place,[fn6] today’s ruling goes in exactly the wrong direction.

[fn6] On November 2, 2004, for example, the voters approved Proposition 64, which places limitations on private enforcement of California’s unfair competition law. The supporting ballot argument urged a yes vote to “protect small businesses from frivolous [shakedown] lawsuits” that “make businesses want to move to other states where lawyers don’t have a legal extortion loophole. When businesses leave, taxpayers who remain pick up the burden.” (Ballot Pamp., General Elec. (Nov. 2, 2004) argument in favor of Proposition 64, p. 40.)

Dissent slip op. at 28 & n.6. The majority opinion does not mention Proposition 64, nor does the companion case, Tipton-Whittingham v. City of Los Angeles, ___ Cal.4th ___ (Dec. 2, 2004). The Recorder and the Daily Journal both have more on these cases today.
- posted by Kim Kralowec @ 9:21 AM  | Comments (0) |

 
Updates on Twomey and Krumme
Here's the Twomey order. And don't quote me on this, but I heard a rumor through the grapevine that the Krumme order denying rehearing was basically a one-word denial, and that the court did not discuss the Prop. 64 retroactivity issue (or any other issue) on the merits.
- posted by Kim Kralowec @ 9:22 AM  | Comments (0) |

 
Krumme rehearing petition denied
The First Appellate District, Division Four, has denied the petition for rehearing in Krumme v. Mercury Insurance Co., 123 Cal.App.4th 924 (2004). Click here for the docket, and see this post for more about Krumme. I haven't seen the order, so I don't know whether the Court addressed the Proposition 64 retroactivity issue on the merits. If anyone has it, please email me. Assuming no further appellate activity, the Krumme opinion now stands as an example of a case in which an unaffected plaintiff was allowed to continue prosecuting a UCL claim after the effective date of Proposition 64. (Many thanks to the reader who sent in this tip.)
- posted by Kim Kralowec @ 2:10 PM  | Comments (0) |

 
Another retroactivity article—and another trial court order
An article in this morning's Recorder, "Playing Prop 64 Out," argues that the amendments apply to pending cases. The authors are defense attorneys from Paul, Hastings, and their article is more thorough than any of those linked to below. The article reports that "[o]n Nov. 15, a Los Angeles County Superior Court judge sustained a demurrer to a UCL claim based on lack of standing, in what appears to be the first decision in the state to apply Prop 64 retroactively." The article does not mention the Twomey order.
- posted by Kim Kralowec @ 9:05 AM  | Comments (0) |

 
Articles on Proposition 64 and retroactivity
UPDATE: The petition for review in Krumme cites this post. I'm flattered. Please click here for a discussion of why this post should have no bearing on whether review is granted in Krumme.

Here are all the online articles I've located so far that discuss Proposition 64. Most of them mention the retroactivity question. With the exception of the CJAC article, they are all by large defense firms, whose attorneys have an incentive to promptly issue client "alerts" on new legal developments. There are strong arguments against Proposition 64 retroactivity, as the Twomey order demonstrates. These articles do not mention the anti-retroactivity arguments, so plaintiffs' lawyers should not feel discouraged after reading them.

"California Initiative Limits Scope of State Unfair Competition Law, Adding New Standing Requirement and Eliminating 'Private Attorney General' Actions; Changes May Apply to All Pending Cases," by Sidley Austin Brown & Wood LLP

"California Prop. 64 Imposes Standing Requirement on Business & Professions Code Section 17200 Actions," by Thelen Reid & Priest LLP

"California Prop. 64 Reins In Victimless Unfair Competition Consumer Lawsuits," by Latham & Watkins

"California Voters Approve Major Changes to B&P 17200: Passage of Proposition 64 Signals Victory for State’s Businesses, Employers," by Orrick, Herrington & Sutcliffe

"California Voters Approve Proposition 64, Adding Standing and Class Action Requirements to California's Unfair Competition and False Advertising Laws," by Gibson, Dunn & Crutcher

"California Voters Limit Private Enforcement of Unfair Competition Law," by Pillsbury Winthrop LLP

"Californians Vote to Amend Infamous 'Private Attorney General' Statute," by O'Melveny & Myers LLP

"Litigation Update - California Proposition 64," by Hancock, Rothert & Bunshoft LLP

"Passage of Prop 64 Provides Some Relief," by Foley & Lardner LLP

"Proposition 64: A Major Change in the Unfair Competition Law," by Cooley Godward LLP

"Proposition 64 Modifies California's Unfair Competition Law," by Arnold & Porter LLP

"Proposition 64 Reforms California's Notoriously Unfair Competition Law, and May Apply to Currently Pending Cases," by Reed Smith

"Proposition 64, titled 'Limits on Private Enforcement of Unfair Business Competition Laws,' Passes Easily in California," by Nixon Peabody LLP

"Proposition 64 - When Does It Take Effect and to What Cases Does It Apply?," by the Civil Justice Association of California

"Voters Approve Amendments to California's Unfair Competition Law," by Sedgwick, Detert, Moran & Arnold LLP

"Voters Rein In California's Unfair Competition Law - Actual Injury Required," by Collier Shannon Scott, PLLP

"Why Proposition 64 Should Be Effective Immediately and Retroactively," by Rutan & Tucker, LLP

- posted by Kim Kralowec @ 5:30 AM  | Comments (0) |