The UCL Practitioner
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Proposition 64 repealed the right under the UCL to bring a representative action without meeting the class certification requirements of section 382 of the Code of Civil Procedure.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.
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