The UCL Practitioner
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.
Do any of the learned people of this blog share the opinion that CCP 128.7 provides a safe harbor from civil liabilities under B&P 17200. For example can individual (or governmental agency) sue someone for filing a frivilous action under 17200 without the 21 day safe harbor?
Indeed, I do share that opinion. However, no Prop. 64 opponent was quick to embrace -- or even address this. It would, after all, conclusively undermine their position that 17200 was "out of control" and that "nothing could be done to put an end to a truly 'frivolous' action under its provisions." Shrug.
As I understand the first commenter's question, it is whether a violation of CCP section 128.7, which is the statute concerning sanctions for filing "frivolous" cases or making arguments not supported by the facts or the law or a "good-faith argument for the expansion of existing law," can form the statutory predicate for an "unlawful" prong claim under the UCL, and if so, would that allow you to get around the 21-day rule of CCP section 128.7(c)(1). I think the answer to that question is technically yes, but that as a practical matter, it would be better to file a motion under section 128.7 in the original action. If you file a new lawsuit, or even a counter-claim, for violation of the UCL, you will have to serve the complaint, wait the 30-day period for the defendant to answer, and successfully bring the case to trial before you can recover any money. Why not just give notice under section 128.7 and wait the 21 days? Also, you might have a problem recovering "restitution" in this situation, because that normally contemplates money that was taken or received by the wrongdoer from you. If your only damage is you incurred attorney's fees defending a frivolous case, then I'm not sure you would qualify for UCL "restitution" because you paid those fees to someone unrelated to the wrongdoer, and the wrongdoer presumably received no share.
The question presented does not have the Plaintiff using 128.7 as the 'unlawful' prong of 17200 but using acts that are covered by 128.7 as 'unfair' acts only. Actually my question was more geared towards a third party to the original action (Assuming they have standing.....Prop 64)....For filing a 17200 action for abusive of frivolous lawsuits. The way I read McCann v. Lucky Money and Cel-tech "if the legislation has looked at a certain problem and stated that an action should not lie (i.e....suing under 17200 without the protections of 128.7 safe harbor) then the judiciary cannot formulate its own rendition of what should be 'unfair.' This would "effectively undermine the 128.7 safe harbor and allow plaintiffs to plead around the safe harbor provisions."

If Kimberly feels that the actions are not protected then why have a so-called safe harbor?
Wouldn't this approach run headlong into a SLAPP motion?
The problem then would be that governmental agencies are exempt from SLAPP motions!
Section 128.7 would not create a "safe harbor" for any UCL "unlawful" prong claim. Cel-Tech holds that a safe harbor exists for conduct that has been specifically declared to be lawful in some other legislation. The Cel-Tech safe harbor does not apply to conduct that is merely not unlawful. The Cel-Tech opinion couldn't be clearer about that.
...or in a situation in which the legislation has looked at the problem and created some type of safe harbor?
The CCP 128.7 is a slick way for a civil defender to get out of accepting service for multiple defendants, by accusing the Plaintiff of "malicious prosecution" for naming over 20 defendant DOES out of 50.

The civil defender accused the Plaintiff of adding defendants that did not have anything to do with a particular raid on a particular day....WITHOUT A WARRANT and WITHOUT PROBABLE CAUSE...believe me.

Are AMENDED DOES suppose to read DOES #1, DOE #2, DOE #3, etc?

If the Personal service date is noted above the server's name the day they served it, is that not a sufficient serve, IF the served defendant, particularly a city employee was served through the CITY HALL CLERK?

Is the CITY HALL CLERK a valid receiver of Summmons to law enforcement and other city employees whose address is not known to the Plaintiff or, in this case, the defendants are REFUSING the service of the SUMMONS and so is the civil defender....hmmm.. what to do to secure a valid service to the defendant LAPD officers and certain City official employees.?


Queen_Negus Kambui
Post a Comment

Powered by Blogger

© 2003-2005 by Kimberly A. Kralowec