Bivens v. Corel Corp.

• Decision Date: 18 February 2005
• Docket Number: No. D043407.,D043407.
• Citation: 24 Cal.Rptr.3d 847,126 Cal.App.4th 1392
• Parties: Webster BIVENS, Plaintiff and Appellant, v. COREL CORPORATION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

24 Cal.Rptr.3d 847

126 Cal.App.4th 1392

Webster BIVENS, Plaintiff and Appellant, v. COREL CORPORATION, Defendant and Respondent.

No. D043407.

Court of Appeal, Fourth District, Division 1.

February 18, 2005.

Review Granted April 27, 2005.

The McMillan Law Firm, Scott A. McMillan, La Mesa, Michelle D. Volk and David J. Lola for Plaintiff and Appellant.

Gray Cary Ware & Freidenrich, DLA Piper Rudnick Gray Cary, Terry D. Ross and Kristina M. Hoy, San Diego, for Defendant and Respondent.

AARON, J.

I. INTRODUCTION

Plaintiff Webster Bivens (Bivens) appeals from the trial court's judgment in favor of defendant Corel Corporation (Corel). Corel offered consumers cash-back rebates for purchasing its software. Bivens filed an action against Corel claiming that Corel imposed conditions not disclosed in the rebate offers and that Corel never intended to satisfy customer requests for the rebates. The trial court granted summary judgment in favor of Corel. Bivens contends that the trial court erred in granting Corel's motion for summary judgment, arguing that there remain material facts in dispute. We conclude that no triable issue of material fact exists and that Corel is entitled to summary judgment on Bivens's claims.

While Bivens's appeal was pending, the voters of California passed Proposition 64 (Prop.64), a measure that amended certain provisions of California's Unfair Competition Law (UCL), set forth at Business and Professions Code¹ section 17200 et seq. In view of Prop. 64's passage, we requested that the parties submit supplemental briefs addressing whether or not Prop. 64 applies to this case and, if so, what impact, if any, Prop. 64's amendments to the UCL have on this case. We conclude that Prop. 64's amendment of section 17204 (see § 17204, as amended by Prop. 64, as approved by voters, Gen. Elec. (Nov. 2, 2004).)² does apply to this case, and requires that we affirm the trial court's judgment in favor of Corel on the additional ground that Bivens no longer has standing to prosecute the claims he raises in the complaint.

II. FACTUAL AND PROCEDURAL HISTORY

A. Background

Between 2001 and 2003, Corel distributed to retailers Corel WordPerfect Family Pack 3 (Corel 3) and Corel WordPerfect Family Pack 4 (Corel 4) software packages that offered "cash back" mail-in rebates. On the boxes containing Corel 3 software was a preprinted offer for a mail-in rebate in the amount of $30. The boxes containing Corel 4 software offered a mail-in rebate in the amount of $20.

1. The Corel 3 rebate offer

The offer printed in the upper right-hand corner of the front of the Corel 3 package stated "Get $30 US/$50 Cdn cash back!" Directly underneath, in smaller print, was the statement, "See inside for details." Inside each Corel 3 package there was a rebate form that listed the details of the rebate offer. The details for eligibility to receive the advertised rebate included the following language:

"To receive your $30 US/$50 Cdn rebate:

"Buy WordPerfect Family Pack 3 between July 1, 2001 and December 31, 2002

"Complete this form and mail it along with the original UPC bar code from the box and the original receipt (or a legible photocopy of the original receipt) from the above product to:

"[¶] ... [¶]

"This promotion does not apply to OEM, downloadable or NFR versions of WordPerfect Family Pack 3 or to the Corel License Program

"To qualify, your redemption form must be received on or before January 30, 2003

"Allow up to 10 weeks to receive your rebate check

"Limit of one (1) rebate per name or household

"This offer is valid only in the United States and Canada

"This promotion is void where prohibited or restricted by law

"Corel is not responsible for lost, destroyed, misdirected, postage due or delayed mail, or for any incorrect information provided to Corel by the customer

"This offer cannot be combined with any other promotions

"Rebate will be issued in the currency in which the product was purchased"

2. The Corel 4 rebate offer

The offer printed on the Corel 4 package stated "GET $20 US/$30 Cdn CASH BACK!" in the upper right-hand corner of the front of the box. Directly underneath, in smaller print, was the statement: "SEE INSIDE FOR DETAILS." Inside each Corel 4 package there was a rebate form that listed the details of the rebate offer. The details for eligibility to receive the advertised rebate included the following language:

"To receive your $20 US/$30 Cdn rebate:

"You must have bought WordPerfect Family Pack 4 between July 1, 2002 and Dec. 31, 2003 and received this coupon with purchase

"Complete this form and mail it, along with the original UPC bar code from the box and the original receipt (or a legible photocopy of the original receipt) from the above product, to:

"[¶] ... [¶]

"This promotion does not apply to Academic, OEM, NFR or download versions of WordPerfect Family Pack 4, or to the Corel License Program

"To qualify, your redemption form must be received on or before Jan. 30, 2004

"Allow up to 10 weeks to receive your rebate check

"Limit of one (1) rebate per name, household or corporation

"This offer is valid only in the United States and Canada

"This promotion is void where prohibited or restricted by law

"Corel is not responsible for lost, destroyed, misdirected, postage due or delayed mail, or for any other matter arising as a result of incorrect information provided to Corel by the customer

"This offer cannot be combined with any other promotions

"Rebate will be issued in the currency in which the product was purchased"

3. TCA Fulfillment Services, Inc.

Corel contracted with TCA Fulfillment Services, Inc. (TCA) to process consumer applications for Corel 3 and Corel 4 rebates. As of June 16, 2003, a total of 17,981 Corel 3 rebates had been paid to United States purchasers. Another 30 rebate requests were being processed. A total of 3,322 Corel 3 rebate requests had been initially denied; however, 316 of these requests were later approved and paid, or were being reprocessed for payment.

As of June 16, 2003, 10,540 United States Corel 4 rebates had been paid. TCA was processing 608. An additional 1,452 rebate requests had been initially denied; 123 of those requests were later approved or were being reprocessed for payment.

B. Bivens's complaint and allegations

Bivens, who had neither purchased the Corel software nor applied for a rebate, initiated this lawsuit against Corel on December 30, 2002, by filing a complaint on behalf of the general public pursuant to sections 17204 and 17535. Bivens alleged that Corel's conduct in advertising a cash-back rebate offer on the outside of packages of Corel 3 and Corel 4 with the words "Details Inside," and providing the material terms of the offer on a rebate form contained inside the Corel 3 and Corel 4 packages violated sections 17537.11, 17500, and 17200. Bivens sought a declaration that Corel's failure to fulfill every rebate request made by a purchaser was unlawful and unfair, constituted a breach of contract with consumers, and provided Corel with an unfair competitive advantage over its competitors. Bivens further sought an accounting to determine the dollar amount of the rebate requests that were allegedly unlawfully not paid, disgorgement and restitution of such funds to purchasers, escheatment of disgorged profits belonging to unidentified victims to the State of California pursuant to Civil Code section 1519.5, preliminary and permanent injunctive relief, and attorney fees and costs of suit.

C. Trial court proceedings

1. Motion for summary judgment

Corel filed a motion for summary judgment on June 27, 2003. A hearing on the motion was scheduled for September 12. On July 24, Bivens served Corel with requests for discovery, including form and special interrogatories, requests for admissions, and a request for production of documents. Prior to serving these discovery requests, Bivens had not conducted any discovery in this case since filing the complaint on December 30, 2002.

Through a series of motions and ex parte applications, Bivens requested an extension of time to file an opposition to Corel's motion for summary judgment and requested that the hearing on the motion be continued so that Bivens could obtain responses to the discovery he propounded on July 24. The trial court eventually granted Bivens a one-week extension to file his opposition. However, the court denied his requests to continue the hearing date. On September 2, Bivens's counsel filed his opposition to Corel's summary judgment motion and also filed a document entitled "Renewal of Motion for Continuance."

2. Attorney McMillan's declaration regarding his rebate requests

In support of his opposition to Corel's motion for summary judgment, Bivens submitted the declaration of his counsel, Scott McMillan. According to the declaration, Attorney McMillan personally purchased two Corel 3 packages from Office Depot in a single transaction on August 24, 2002. One package was for himself and one was for his law corporation. McMillan submitted rebate request forms for the two Corel 3 purchases. Corel did not send McMillan the rebates he requested. McMillan admitted that the Corel 3 packages he purchased were on sale at the time he bought them and that he had used coupons in making the purchase.

McMillan also purchased Corel 4 from Amazon.com. In addition to submitting a Corel 4 rebate request form to TCA, McMillan applied for and received a $40 rebate on his Corel 4 purchase directly from Amazon.com. According to McMillan's declaration, the Corel 4 rebate request he submitted to TCA was initially denied. When he did not receive the $20 rebate from Corel, he placed a telephone call to TCA regarding his Corel 4 rebate request. In response to McMillan's call, TCA sent him a rebate check in the amount of $30.

3. Summary judgment hearing and disposition

The trial court heard Bivens's "renewed" motion for a continuance and Corel's summary judgment motion...