Motors, Inc. v. Times Mirror Co., TIMES-MIRROR

CourtCalifornia Court of Appeals
Writing for the CourtKAUS; ASHBY; STEPHENS
Docket NumberTIMES-MIRROR
Parties, 1980-1 Trade Cases P 63,271, 6 Media L. Rep. 1389 MOTORS, INC., on behalf of itself and as representative of a class of persons similarly situated, Plaintiffs and Appellants, v.COMPANY, a corporation, Defendant and Respondent. 2 Civ. 55083.
Decision Date25 February 1980

Page 543

162 Cal.Rptr. 543
102 Cal.App.3d 735, 1980-1 Trade Cases P 63,271,
6 Media L. Rep. 1389
MOTORS, INC., on behalf of itself and as representative of a class of persons similarly situated, Plaintiffs and Appellants,
v.
TIMES-MIRROR COMPANY, a corporation, Defendant and Respondent.
2 Civ. 55083.
Court of Appeal, Second District, Division 5, California.
Feb. 25, 1980.
As Modified March 25, 1980.
Hearing Denied April 24, 1980.

Page 544

[102 Cal.App.3d 737] Harold J. Tomin, Los Angeles, for plaintiffs and appellants.

Robert C. Lobdell, William A. Niese, Los Angeles, The Times-Mirror Company; Gibson, Dunn & Crutcher, John J. Hanson and H. Frederick Tepker, Los Angeles, for defendant and respondent.

KAUS, Presiding Justice.

Plaintiff Motors, Inc. ("Motors") on behalf of itself and as representative of a purported class, appeals from a judgment of dismissal entered against it and in favor of defendant Times-Mirror Company ("Times-Mirror") pursuant to Code of Civil Procedure section 581(3).

102 Cal.App.3d 738

FACTS

Motors is a wholesale distributor of automobile products. It purchases its stock from manufacturers and resells it to jobbers

Page 545

who, in turn, sell "to consumers and others."

Times-Mirror publishes the Los Angeles Times, alleged to be the "dominant print advertising medium" in the Los Angeles basin. As here relevant, Times-Mirror offers display advertising under two different rate "cards" or fee schedules: (1) a "general" or "national" card, applicable to manufacturers and their agents, jobbers, brokers, wholesalers and distributors; and (2) a retail card, which, as its title suggests, sets forth the charges for all retail concerns. The retail card rates are substantially lower at every volume level than are those of the general or national card. Thus, the cost of advertising in the Los Angeles Times is determined in part by the advertiser's role in the production-distribution system.

In 1977, Motors filed its complaint against Times-Mirror, alleging that this two-tiered advertising rate structure amounted both to an unfair business practice within the meaning of former Civil Code section 3369 (count 1) and to an unreasonable restraint of trade in violation of Business and Professions Code section 16700 et seq., the Cartwright Act (count 2). It sought damages and injunctive relief.

Specifically, with regard to count 1, Motors alleged: "Defendants' (sic) practice is unfair for at least the following reasons:

"(a) The Los Angeles Times is the dominant print media (sic) in Los Angeles, and there is no practical substitute available;

"(b) The alleged violation of law is discriminatory and without justification;

"(c) The alleged violation of law unfairly rewards large retail chains and businesses vertically integrated through the retail function; and

"(d) Plaintiff and members of (its) class must spend a substantially greater number of dollars to achieve advertising parity with favored retailers. . . ."

[102 Cal.App.3d 739] About a year before the complaint was filed, plaintiff started a cooperative advertising program with its jobbers-retailers. A sample ad is attached to the complaint. It informs the reader that about eight automotive products can be purchased at certain prices at about thirty-five retail stores in Los Angeles and Orange Counties. Plaintiff, who placed the ad, was charged under the general rate thirty percent above the retail rate although its name is not mentioned in the ad.

With regard to count 2, the heart of the charging allegations is that "Each agreement to purchase advertising between defendants and each of them and a favored retail buyer of advertising constitutes an agreement which unreasonably restrains trade . . . , in that:

"(a) The purchaser under the general rate card is discriminated against in the price paid for advertising Vis-a-vis competition (sic) who purchase under the retail rate card; and

"(b) There is no practical or economic justification for the two rate cards being applicable to sellers of competing products."

On December 23, 1977 Times-Mirror filed a general demurrer to the complaint, which was sustained without leave to amend. A dismissal under section 581, subdivision 3 of the Code of Civil Procedure and this appeal ensued.

DISCUSSION

Plaintiff's argument concerning its first cause of action relies heavily on the expansive interpretation of the term "unfair competition" demanded by Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 108-114, 101 Cal.Rptr. 745, 496 P.2d 817. (See Howard, Former Civil Code Section 3369: A Study in Judicial Interpretation (1979) 30 Hastings L.J. 705.) That section as does its successor, section 17200 of the Business and Professions Code 1 defines "unfair competition" to include, as relevant, "unlawful, unfair or fraudulent business practice(s)." While Barquis itself found the practices there complained of to

Page 546

be unlawful, it did make this significant statement concerning the sweep of the concept of "unfair" practices: "In permitting the restraining of all 'unfair' business practices, section 3369 undeniably establishes only a wide standard to guide courts of equity; as noted above, given the [102 Cal.App.3d 740] creative nature of the scheming mind, the Legislature evidently concluded that a less inclusive standard would not be adequate." (Id., at p. 112, 101 Cal.Rptr. at p. 758, 496 P.2d at p. 830.) Here the Supreme Court merely echoed that...

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73 practice notes
  • Freeman v. San Diego Assn. of Realtors, No. D030553.
    • United States
    • California Court of Appeals
    • 27 Diciembre 1999
    ...requires a "high degree of particularity" in the pleading of Cartwright Act violations (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 742, 162 Cal.Rptr. 543), and therefore generalized allegations of antitrust violations are usually insufficient.27 (Chicago Title Ins. Co. v. G......
  • State Farm Fire & Casualty Co. v. Superior Court, No. B096075
    • United States
    • California Court of Appeals
    • 23 Mayo 1996
    ...a practice is prohibited as "unfair" or "deceptive" even if not "unlawful" and vice versa. (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, fn. 2, 162 Cal.Rptr. 543.) Virtually any law--federal, [45 Cal.App.4th 1103] state or local--can serve as a predicate for a section 17......
  • Colgan v. Leatherman Tool Group, Inc., No. B176953.
    • United States
    • California Court of Appeals
    • 10 Enero 2006
    ...702 A trial court has broad authority to enjoin conduct that violates section 17200. (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, 162 Cal.Rptr. 543.) That authority is expansive but not unlimited. Although the Unfair Competition Law imposes liability for past acts, in o......
  • Scripps Clinic v. Superior Court, No. D040569.
    • United States
    • California Court of Appeals
    • 17 Abril 2003
    ...victim—a weighing process quite similar to the one enjoined on us by the law of nuisance." (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, 162 Cal.Rptr. 543 In Cel-Tech, the California Supreme Court criticized these definitions: "We believe these definitions are too amorph......
  • Request a trial to view additional results
73 cases
  • Freeman v. San Diego Assn. of Realtors, No. D030553.
    • United States
    • California Court of Appeals
    • 27 Diciembre 1999
    ...a "high degree of particularity" in the pleading of Cartwright Act violations (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 742, 162 Cal.Rptr. 543), and therefore generalized allegations of antitrust violations are usually insufficient.27 (Chicago Title Ins. Co. v. ......
  • State Farm Fire & Casualty Co. v. Superior Court, No. B096075
    • United States
    • California Court of Appeals
    • 23 Mayo 1996
    ..."unfair" or "deceptive" even if not "unlawful" and vice versa. (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, fn. 2, 162 Cal.Rptr. 543.) Virtually any law--federal, [45 Cal.App.4th 1103] state or local--can serve as a predicate for a section ......
  • Colgan v. Leatherman Tool Group, Inc., No. B176953.
    • United States
    • California Court of Appeals
    • 10 Enero 2006
    ...702 A trial court has broad authority to enjoin conduct that violates section 17200. (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, 162 Cal.Rptr. 543.) That authority is expansive but not unlimited. Although the Unfair Competition Law imposes liability for past acts, in o......
  • Scripps Clinic v. Superior Court, No. D040569.
    • United States
    • California Court of Appeals
    • 17 Abril 2003
    ...weighing process quite similar to the one enjoined on us by the law of nuisance." (Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740, 162 Cal.Rptr. 543 In Cel-Tech, the California Supreme Court criticized these definitions: "We believe these definitions are too amorp......
  • Request a trial to view additional results

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