The UCL Practitioner
Monday, February 28, 2005
A Prop. 64 hypothetical
John from The Legal Reader writes in with this hypothetical:
Say on 1/1/2004, Ms. Smith filed a 17200 suit against the manufacturer of Widgets, alleging that some aspect of the Widgets (or their advertising) was unfair, unlawful, fraudulent, etc. Her suit reaches back four years, to 1/1/2000 under the four-year statute of limitations for 17200 actions.

In her complaint, Ms. Smith admitted that she had never personally purchased a Widget, but alleged that she was filing suit as a "private attorney general" on behalf of other Californians who had bought Widgets.

Prop 64 passes, and Widget Co. files a Motion for Judgment on the Pleadings, arguing lack of standing for plaintiff Ms. Smith.

The court agrees and grants the motion, but allows Ms. Smith leave to amend.

Assume that Widget Co. is continuing its allegedly bad practices.

Ms. Smith NOW goes and buys a Widget (sometime in 2005).

Ms. Smith amends her complaint to allege that she now has standing because she was actually harmed by Widget Co., albeit after the date that she filed her original complaint (which alleged that she hadn't been harmed).

Can she do that?

If not, why not?

If she can, what effect does it have on the "class period" engendered by her complaint?

My proposed hypothetical is not a class action. But section 17200 cases generally encompass a limitations period spanning four years back from the date of the filing of the complaint. Would her amendment expand this period? Shift it forward in time?

Any thoughts (from either you or your blog's readers) would be welcome.

A new pleading alleging facts after the date of filing of the original complaint is NOT an amended pleading but a supplemental pleading. In the hypothetical question, the plaintiff had leave to amend, but not to supplement, her complaint. If the supplemental pleading were filed without leave of court, it would be subject to demurrer.
The supplemental complaint shifts the time period forward from 1-1-2000 to sometime in 2001.

A demurrer is not going anywhere since she could have instead filed a new lawsuit as well and therefore there would be no point in denying her leave to supplement.
I think your hypothetical is interesting. I don't know the answer but I do have some reflections. First, however, responding to Jeffrey Wilens note: what happens to statute of limitations?

Second, a general thought about Prop 64 and retroactivity. This post illustrates the number of factual situations that can arise when a statute is applied retroactively. All suits are factually unique. Because they are all unique, the variety of factual situations that might come up if a statute applied retroactively is almost as numerous as the number of suits. This, I think, is the point of the part of Mervyn's that said it just isn't fair. Litigants are going to face untold number of rulings specific to their case resulting from retroactivity rulings. IT JUST ISN'T FAIR. No one can tell how may branches this tree will sprout and not every litigant will have the wherewithall to challenge rulings that are wrong, for whatever reason.

Finally, and along these lines, and, I think, relevant to the hypothetical, yesterday I had a judge rule in a 17200 case that after Prop 64 an admittedly affected plaintiff could not sue for injunctive relief as she was an ex-employee and was not likely to suffer under the policies. His ruling was based on the idea that after prop 64 all standing rules must be applied to 17200 plaintiffs and the injunction rules forbid a plaintiff not likely to be affected in the future by the bad act to sue for injunctive relief.

Thus, in Legal Readers case, even if the plaintiff bought a widget she would not have standing to seek injunctive relief, period, no matter when she bought the widget.

This ruling would knock out a lot of cases. In essence it means that the only remedy available is restitution.
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