Tucker v. Pac. Bell Mobile Servs.
Decision Date | 07 August 2012 |
Docket Number | No. A132619.,A132619. |
Citation | 145 Cal.Rptr.3d 340,12 Cal. Daily Op. Serv. 9011,2012 Daily Journal D.A.R. 10953,208 Cal.App.4th 201 |
Court | California Court of Appeals Court of Appeals |
Parties | Diane TUCKER et al., Plaintiffs and Appellants, v. PACIFIC BELL MOBILE SERVICES et al., Defendants and Respondents. |
OPINION TEXT STARTS HERE
Franklin & Franklin, J. David Franklin, San Diego; Law Offices of Anthony A. Ferrigno and Anthony A. Ferrigno, Walnut Creek, for Plaintiffs and Appellants.
Drinker Biddle & Reath, Michael J. Stortz and Beth O. Arnese, San Francisco, for Defendants and Respondents.
Plaintiffs alleged that the defendant wireless telephone companies (collectively, Defendants) 1 made material misrepresentations to the consuming public as to the actual number of usable (i.e., conversational) airtime minutes in advertised subscriber rate plans.2 THE TRIAL COURT SUstained defendants' demurRer to the class action allegations of the fifth amended complaint without leave to amend, relying in part on Knapp v. AT & T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 944, 124 Cal.Rptr.3d 565( Knapp ), involving similar allegations. We reverse as to dismissal of Plaintiffs' equitable claims under the unfair competition law (UCL; Bus. & Prof.Code, § 17200 et seq.),3 and otherwise affirm.I. Background
Plaintiffs' 4 complaint, originally filed in December 2003, challenged Defendants' disclosures of the practice of billing for airtime in full minute increments, with partial minutes of use rounded up.5 Plaintiffs alleged that Defendants' advertisements and other promotional materials misrepresented or inadequately disclosed this rounding up policy, in violation of the UCL and the false advertising law ( § 17500 et seq.). Plaintiffs filed their fifth amended complaint (FAC) in this action in approximately February 2011. The first three causes of action of the FAC assert claims under the UCL. The first cause of action claims unlawful business practices, the second cause of action alleges unfair business practices, and the third cause of action sets forth a claim for fraudulent business practices. The fourth cause of action claims fraud by Defendants. The fifth cause of action asserts a claim for the violation of the Consumer's Legal Remedies Act (CLRA; Civ.Code, § 1750 et seq.) Plaintiffs sought to represent a class composed of “all consumers who have subscribed to a term contract for wireless telephone service in California from one or more of the Defendants herein, at any time from and after January 1, 1999 until the present time.” Plaintiffs requested damages, restitution, and injunctive relief.
Defendants demurred to the class allegations of the FAC on the ground that there was no reasonable probability Plaintiffs could certify a class following the decision in Knapp, and that Plaintiffs were collaterally estopped from doing so. Defendants requested judicial notice of portions of the papers Plaintiffs had filed in support of their motion for leave to file the FAC, of trial court pleadings filed in Ball, of the then unpublished appellate decision in Knapp, and of the operative trial court pleading at issue in Knapp. Plaintiffs also filed a request seeking judicial notice of prior pleadings in the instant case, certain trial court pleadings in Ball, and a declaration filed on behalf of Cingular Wireless in the Alameda County Superior Court in coordination proceedings seeking to compel arbitration ( Cellphone Termination Fee Cases, JCCP No. 4332).
A hearing on the demurrer was held on June 17, 2011. The court granted the unopposed requests for judicial notice of both parties. The demurrer of the Defendants to the class allegations of the FAC was sustained without leave to amend.6Citing Knapp, the trial court concluded that “there is no reasonable possibility that Plaintiffs can establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact.”
The court entered its order after hearing on July 1, 2011. A timely notice of appeal was filed on July 13, 2011.7
II. Discussion
Plaintiffs contend that the trial court erred in making a determination of class sufficiency at the pleading stage, and in its reliance on Knapp, which Plaintiffs insist is a case involving the policies, practices and procedures of a completely separate entity in the marketing and sale of rate and service plans.
We first note our standard of review in this circumstance. We do not consider here the denial of a motion for class certification. In that instance, “ ( Sav–On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326–327, 17 Cal.Rptr.3d 906, 96 P.3d 194.)
( Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, 105 Cal.Rptr.3d 181, 224 P.3d 920.) “ ( Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300, 128 Cal.Rptr.3d 109.)
If denying class certification, the trial court must state at least one valid reason for denying the motion. ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440, 435–436, 97 Cal.Rptr.2d 179, 2 P.3d 27( Linder ).) If a demurrer is sustained, we exercise our independent judgment on whether a cause of action has been stated as a matter of law, regardless of reasons stated by the trial court. ( Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111, 55 Cal.Rptr.3d 621.) We affirm if the trial court's decision was correct on any theory. ( Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 975–976, 114 Cal.Rptr.3d 611( Gutierrez ).)
When a demurrer is sustained without leave to amend, ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Leave to amend should not be granted where amendment would be futile. ( Newell v. State Farm General Ins. Co. (2004) 118 Cal.App.4th 1094, 1100, 13 Cal.Rptr.3d 343( Newell ).)
( Sui v. Price (2011) 196 Cal.App.4th 933, 938, 127 Cal.Rptr.3d 99.)
The decision whether a case is suitable to proceed as a class action ordinarily is made on a motion for class certification. But our Supreme Court found it “settled” that courts are authorized “to weed[ ] out” legally meritless class action suits prior to certification by demurrer or pretrial motion. ( Linder, supra, 23 Cal.4th at p. 440, 97 Cal.Rptr.2d 179, 2 P.3d 27.) “When the substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on the pleadings, summary judgment, or summary adjudication) that affords proper notice and employs clear standards.” ( Ibid.) However, a court may decide the question by ( Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1041–1042, 135 Cal.Rptr.3d 905;Gutierrez, supra, 187 Cal.App.4th at p. 975, 114 Cal.Rptr.3d 611.)
There is a divergence in intermediate appellate authority on the level of scrutiny to be given to demurrer rulings on class action pleadings, particularly to those sustaining a demurrer. In this District, we have said that ( Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1234, 271 Cal.Rptr. 72( Clausing ); accord, Silva v. Block (1996) 49 Cal.App.4th 345, 349, 56 Cal.Rptr.2d 613.) Demurrers may serve “as a screening mechanism for improperly pleaded class action allegations.” ( TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747, 752–753, 104 Cal.Rptr.2d 810; see also Alvarez v. May Dept. Stores Co. (2006) 143...
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