The UCL Practitioner
Thursday, March 03, 2005
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?
Boy, you plaintiffs' lawyers are getting pretty desperate if you are taking the Apple Computer case to support the notion that Prop 64 is not retroactive. The Apple court said it was not addressing the issue of class certification under 17200, which I would think means that it was not addressing the issue. You can't possibly read the absence of comment on that subject as endorsement of a wholly distinct idea that was not even before the court, can you? Nice try though!
I'm not suggesting that Apple Computer should be cited for that proposition. I maintain this blog to entertain and inform a readership of UCL practitioners. Whether the footnote suggests something about the justices' thinking that might pique the interest of my readers—which it obviously does—is a wholly different question from whether an attorney should raise a given point in a litigated action.
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