Class Action

Chief Justice George recused from panel in In re Tobacco II Cases

By Kimberly A. Kralowec

According to the Supreme Court's oral argument calendar notice, Justice Eileen C. Moore of the Fourth Appellate District, Division Three, will be sitting in place of Chief Justice George in In re Tobacco II Cases, no. S147345.

A quick Westlaw search shows that Justice Moore has authored a few opinions involving UCL claims in recent years.  In R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327 (2006), for example, she touched on both of the issues on review in Tobacco:

Truck Insurance says that R & B lacks standing, under Business and Professions Code section 17204, to maintain the unfair competition cause of action because it has not alleged that it has ?lost money or property as a result of unfair ... competition.? With this assertion, we certainly disagree. R & B alleges that it paid premiums for illusory coverage and it had to make payment on a lemon law claim that it would not have had to pay had the Truck Insurance policy said what it was represented to say. This is an allegation of loss caused by the purported misrepresentations concerning the scope of coverage. The standing requirement is met.

Next, Truck emphasizes that R & B cannot seek injunctive relief on behalf of the general public unless it meets the requirements of Code of Civil Procedure section 382, with reference to class actions. ?Code of Civil Procedure section 382 authorizes class actions ?when the question is one of common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court....? The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citation.] The ?community of interest? requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]? (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Truck Insurance states that R & B may only seek class action injunctive relief if it can demonstrate compliance with these requirements. However, Truck Insurance does not assert that R & B cannot do so.

R & B contends that it can meet the class certification requirements and points us to its offer of proof with respect to the anticipated testimony of Fena, Rusich and Sweet. R & B requests that this court remand the matter so that it will have an opportunity to show that it can satisfy the requirements of Code of Civil Procedure section 382. It is only fair to grant this request, since at the time R & B filed its third amended complaint it was not required to comply with Code of Civil Procedure section 382.

Id. at 360-61.  (Here is my original blog post on R&B.)  The argument in Tobacco will take place on Tuesday, March 3, 2009 at 9:00 a.m. in San Francisco.

Full post as published by The UCL Practitioner on February 10, 2009 (boomark / email).