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Oh For The Bad Old (Pre-Prop 64) Days

By Bruce Nye

For those of you who are late arrivals to the party, back in the old days we used to have large amounts of litigation under California's UCL (Business and Professions Code sections 17200 and following).  Plaintiffs' lawyers would find an industry they could challenge based on hyper-technical, meaningless violations of obscure laws and regulations, and have one client sue everyone in the industry "acting in the public interest."  It mattered not whether the plaintiff had ever done business with, had any connection with, or even heard of any of the defendant businesses.

Then those killjoys the California voters came along and enacted Proposition 64, prohibiting private enforcement actions unless the plaintiff had "suffered injury in fact and lost money or property as a result" of the defendant's acts.  And that amendment to the law -- with its revolutionary premise that people who are wronged are the ones who get a remedy -- seems to have shut down most of the UCL litigation.

But some people just never give up.  Take, for example, O'Brien v. Camiscasca Automotive Engineering (2008) ___ Cal.App.4th ___ (B195641).  Mr. O'Brien filed his purported class action under the UCL, the Consumer Legal Remedies Act (Civil Code section 1750 and following) and the False Advertising Act (Business and Professions Code section 17500 and following) contending that the  defendants  had made false representations concerning the origin of their products.  But he admitted in his deposition that he had never seen the representations  before he bought the product, so the Court of Appeal affirmed summary  judgment against him;  if  he didn't see the allegedly false representation, it certainly didn't cause him harm. 

And the Court of Appeal further found there was nothing wrong with the trial court entering judgment five weeks later, before the plaintiff had a chance to confer with the court about amending his complaint to add a new plaintiff that actually had seen the representation.  Thus, Mr. O'Brien was deprived of the right to lead the charge protecting consumers against fraudulent misrepresentations by these defendants.

And what was the false representation?  Mr. O'Brien bought an Audi license plate frame.  Stamped on the back of the package were the words "Made in USA."  O'Brien alleged that it was not, in fact, made in the USA.  He admitted he had no complaints about the quality of the license plate frame, which "looked good," "was nice," "appeared to be new" and fit the expectations he had when he placed the order.

Quelle horror!  I just can't understand why the California voters would want to put a stop to this kind of nonsense.

Friday off-topic post:

RIP Israel "Cachao" Lopez, bassist and the inventor of Mambo, passed away last Saturday at age 89 in Florida.

Cachoa continued to delight as recently as last year, as evidenced by the following:

And if that's not enough, here he is with the legendary Cuban pianist, Bebo Valdez.  Have a great weekend.

Full post as published by CalBizLit on March 28, 2008 (boomark / email).