The UCL Practitioner
Friday, June 24, 2005
17200 blog hiatus; please scroll down
Well, the bug still isn't fixed, and I'm going to be away on vacation for the next week. I won't be monitoring the blog and I hope the people at Blogger are able to get this fixed in my absence. Please do continue to email me with news about the UCL and/or Proposition 64. In the meantime, here are a few new items:
  • The Court of Appeal scheduled oral argument in Petrini Van & Storage, Inc. v. Superior Court, Third Appellate District, case no. C049042, for August 26, 2005 at 9:30 a.m. It will be quite interesting to see what the Third District does with Prop. 64 retroactivity.

  • The Court of Appeal also scheduled oral argument in Wilson v. Brawn of California, First Appellate District, Division One, case no. A106368, for July 15, 2005 at 9:00 a.m.

  • A petition for review was recently filed in Cohen v. Health Net of California, Inc., ___ Cal.App.4th ___ (Apr. 27, 2005), which the Court of Appeal ordered partially published on May 25. The discussion of Prop. 64 was not published, but the petition for review addresses it. Many thanks to counsel for Mr. Cohen for providing a copy of his brief.

  • The most recent issue of Mealey's California Section 17200 Report is now available. I hope that Mealey's will do a profile of me and my blog one of these days (hint, hint).
I think I set a new career record for billable hours this month (and yes, it's only the 24th). I'm hoping that my average weekly blog posts will go back up to normal in July. I'm feeling good and very ready for my vacation as I just got class certification granted in one of my cases today! Posting will resume during the week of July 5th so I'll talk to you then.
Update on blog display problem; please scroll down
I just received this email from Blogger Support:
Thanks for your patience. A bug is being addressed by the development team to resolve the issue you're having. Please be assured that the bug will be fixed soon. I apologize for any inconvenience it may have caused.

Blogger Support

Thursday, June 23, 2005
Blog display problem; please scroll down
There's a problem with the way the blog is displaying right now. The text isn't wrapping alongside the right-hand column. This has never happened before and I have no idea why it's happening now. I've put in an urgent request for help to Blogger Support.
U.S. Supreme Court rules on class action issue
Today, the U.S. Supreme Court issued its opinion in Exxon Mobil Corp. v. Allapattah Services, Inc., ___ U.S. ___ (June 23, 2005). The opinion is 54 pages long and seems to be saying that in a diversity action, if one plaintiff's claim is over $75,000, the federal court has supplemental jurisdiction over the rest of the class members' claims. UPDATE: There appears to be a problem with the way the main page of the blog is loading. I don't know why it's doing this and have contacted Blogger Support.
Wednesday, June 22, 2005
New UCL decision: Buchanan v. Maxfield Enterprises, Inc.
In Buchanan v. Maxfield Enterprises, Inc., ___ Cal.App.4th ___ (June 20, 2005), plaintiff's "seventh cause of action, based on Business and Professions Code section 17200 et seq., alleges that the defendants unlawful practices include 'the arbitrary discrimination against and refusal to serve customers whom defendants deem "unworthy" of shopping at their Melrose Avenue store, and the false arrest and imprisonment of such customers at defendants’ Melrose Avenue store.'" Apparently, the plaintiff was shopping at a fancy boutique in LA when, unbeknownst to him, Jennifer Lopez and Ben Affleck came in. The manager forcibly ejected the plaintiff so that Ms. Lopez and Mr. Affleck could have the store to themselves. Plaintiff sued under the UCL and a variety of other theories. The trial court sustained the defendant's demurrer without leave to amend based on the ground that the defendant's conduct was "privileged" under Civil Code section 47. The Court of Appeal reversed, holding that the store's "non-communicative" conduct was not privileged. What's instructive about this from a UCL point of view is that Civil Code section 47 is one of the rare statutes that have been interpreted to provide a statutory "safe harbor" for UCL violations. Rubin v. Green, 4 Cal.4th 1187 (1993) also addresses the interplay between the UCL and section 47.
Tuesday, June 21, 2005
New UCL "restitition" decision: Madrid v. Perot
The Court of Appeal (Third Appellate District) addresses UCL "restitution" in Madrid v. Perot, ___ Cal.App.4th ___ (June 20, 2005).
Thursday, June 16, 2005
Recent UCL/Prop. 64 decision: Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
In Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., ___ Cal.App.4th ___ (June 1, 2005), the Court of Appeal (Fourth Appellate District, Division One) announced in another published opinion that Proposition 64 applies retroactively to pending cases. See page 38 of the slip opinion. Many thanks to the reader who wrote in to alert me to this. So, as of right now, we still have a split among the published opinions on the retroactivity issue.
Monday, June 13, 2005
A recent Class Action "Fairness" Act order
See especially the footnote on page 2. If you ask me, fees should have been awarded in this one. [Hat tip: Notes from the (Legal) Underground]
Friday, June 10, 2005
Supreme Court denies two more petitions for review raising Prop. 64 retroactivity
A reader writes in:
FYI the Supreme Court denied two Prop 64 writs yesterday [June 8] in S134150 (Dowhal v. Amazon – original writ to Supreme Court from Judge Kramer ruling denying JOP on Prop 64) and FATE v. Covenant (S133293) (writ challenging Court of Appeal ruling overturning Judge Sabraw’s trial court ruling applying Prop 64 to pending cases).
Thanks for that update. I've been swamped with work lately and have had almost no time for blogging. Unfortunately, I don't think it's going to let up for several more weeks.
Thursday, June 09, 2005
Court of Appeal partially publishes McCann v. Lucky Money, Inc.
On Monday, June 6, the Court of Appeal (Fourth Appellate District, Division Three) partially published its opinion in McCann v. Lucky Money, Inc., ___ Cal.App.4th ___ (May 9, 2005). The section of the opinion discussing Proposition 64 has not been published. The rest of the opinion involves the application of the Cel-Tech "safe harbor" to a rather case-specific set of facts.
Monday, June 06, 2005
Supreme Court affirms exercise of jurisdiction in Snowney v. Harrah's Entertainment, Inc.
Today, the Supreme Court issued its opinion in Snowney v. Harrah's Entertainment, Inc., ___ Cal.4th ___ (June 6, 2005). It affirmed the Court of Appeal's conclusion that California had personal jurisdiction over certain Nevada-based hotels that allegedly engaged in false advertising and UCL violations directed at California residents.
Friday, June 03, 2005
50,000 and counting
Wow. My site meter passed 50,000 hits today. I'm humbled and proud all at once. Thanks to my loyal readers!
Court of Appeal issues OSC in Apple blogger case
Many thanks to the reader who informed me that yesterday, the Court of Appeal issued an order to show cause in O'Grady v. Apple Computer, Inc. (Sixth Appellate District, case no. H028579). For more information on the case, see the Electronic Frontier Foundation's website as well as these prior posts.
New class action arbitration decision: Parrish v. Cingular Wireless, LLC
On May 18, the Court of Appeal (First Appellate District, Division Five) declined to follow Szetela v. Discover Bank, 97 Cal.App.4th 1094 (2002), and enforced a "no-class-action" arbitration clause in a consumer contract. It determined that the specific clause in question was "not unduly one-sided, harsh, or in violation of public policy." Parrish v. Cingular Wireless, LLC, ___ Cal.App.4th ___ (May 18, 2005). The case involved claims under the UCL and the Consumers Legal Remedies Act, and as a notable exception to its holding, the Court refused to enforce the arbitration clause as to the UCL and CLRA claims for injunctive relief (following Cruz v. PacifiCare Health Systems, Inc., 30 Cal.4th 303 (2003)), and as to the plaintiff who sought relief solely as a private attorney general under the UCL. (Slip op. at 5-7.) The Court also held: "Although we asked the parties for supplemental briefing, we find it unnecessary to examine the effect of Proposition 64 upon the present appeal." (Slip op. at 5 n.7.)

According to the docket, a rehearing petition was filed in the case on June 1, and I would imagine we will see a petition for review, if rehearing is denied. The validity of "no-class-action" arbitration clauses is the subject of conflicting appellate opinions not only in California, but in federal and state courts across the country, and is presently before the California Supreme Court in Discover Bank v. Superior Court, case no. S113725, which was orally argued on April 7. The docket in Discover Bank indicates that "new authorities" were presented to the Court by letter on May 20, two days after the Parrish opinion was issued.
Wednesday, June 01, 2005
New pending Prop. 64 appeal: Philips v. Huntington Memorial Hospital
Many thanks to the reader who informed me of another pending appeal raising the Prop. 64 retroactivity issue: This case will be added to my Prop. 64 appeals list. Incidentally, I've added the Kintetsu case to my list of published Prop. 64 opinions, now that the portion of the opinion holding that Prop. 64 does not apply to pending cases has been published.

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