The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car. (Civ. Code 1793.2(d)(2)(B).) This decision holds that if the buyer trades in or sells the defective car. the trade in credit or resale price is not deducted from the restitution that the manufacturer must pay, at least when… Read More
Unless Congress clearly states otherwise, it is presumed not to have waived sovereign immunity. This clear statement rule requires either an express statement that Congress is stripping away sovereign immunity or a statute that creates a cause of action and explicitly authorizes suit against a government entity on that cause of action. The FCRA waives sovereign immunity by the latter… Read More
Plaintiffs claimed that defendant improperly charged them use tax on its lease-end vehicle turn-in fee. This decision holds that the suit was properly dismissed because plaintiffs did not first submit their claims to respondent California Department of Tax and Fee Administration and obtain its definitive ruling on the taxability question. Plaintiffs' claims were barred by their failure to exhaust administrative… Read More
A debt falls within the scope of the Rosenthal Fair Debt Collection Practices Act even if the consumer being dunned does not actually owe the debt and did not enter into the consumer credit transaction that the debt collector is attempting to collect. Under Civ. Code, § 1788.2(f), a consumer debt is money due or owing, or alleged to be… Read More
This decision holds that separate acts in the course of a collection action may constitute independent violations of the FDCPA and that the FDCPA's one-year limitations period runs separately from each of those violations. To constitute a separate violation, the litigation conduct must be the last opportunity for the debt collector to comply with the FDCPA and must occur on… Read More
The trial court properly denied plaintiff attorney fees under CCP 1021.5 when it obtained a preliminary injunction requiring Prop. 65 warnings on coffee but later lost on summary judgment. The temporary warnings did not confer any substantial benefit on the general public. The Coffee Regulation later adopted by the agency responsible for Prop. 65 showed that coffee poses no significant… Read More
During this litigation about whether Prop. 65 requires warnings about the carcinogen acrylamide in coffee, the Office of Environmental Health Hazard Assessment issued a legislative regulation stating that chemicals known to be included in coffee created by the process of roasting or brewing coffee do not pose a significant risk of cancer. (27 CCR 25704.) The trial court correctly granted… Read More
The trial court correctly granted the defendant water pipe (hookah) manufacturer judgment on the pleadings against plaintiff's claim that it violated Prop. 65 by failing to warn that if used to smoke marijuana, the hookah would expose the smoker to marijuana smoke that contains carcinogens. The opinion follows regulations implementing Prop. 65 in holding that the proposition covers only products… Read More
This decision affirms the CFPB's judgment against CashCall under 12 U.S.C. § 5536(a)(1)(B) which prohibits unfair, deceptive or abusive acts or practices in consumer finance. CashCall made loans to consumers at rates that were usurious under the laws of the states where they resided, attempting to circumvent those laws by a choice of Indian tribal law in its loan agreements. … Read More
This decision reverses a summary judgment for defendant, finding a triable issue of fact as to whether defendant willfully violated the FCRA's requirement that an employer provide a job applicant a stand alone disclosure of its potential use of credit reports for employment screening. (15 USC 1681b(b)(2)(A).) Wilful for this purpose includes reckless conduct that increases the risk of violation… Read More
In this case, plaintiff sued defendant under the CLRA for not disclosing the amount of its potential or likely emergency room evaluation and management services fee. The court concluded that the complaint adequately alleged that defendant owed a duty to disclose the charge as that information was within its sole knowledge and not readily available to its patients. The complaint… Read More
In this action under 42 USC 1983, B&G alleged that Embry violated B&G's free speech rights by suing it under California's Prop. 65 for failing to include on its packaging the Prop. 65 warning that B&G's cookies contained acrylamide, a chemical supposedly known to California to cause cancer. The decision holds that in seeking to enjoin Embry from suing B&G,… Read More
This decision affirms a preliminary injunction issued against the California Attorney General and private parties preventing them from filing suit under Prop. 65 to require food manufacturers to give the standard Prop. 65 warning about acrylamide being a chemical supposedly "known" to cause cancer. Under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the compelled speech (the required… Read More
Under the CLRA (Civ. Code 1792(b), no "action for damages" may be brought against a defendant that offers appropriate correction within 30 days of receiving the plaintiff's notice of violation of the statute. This decision holds that "action for damages" includes--and the subsection therefore bars--any claim for compensatory damages or for restitution under the CLRA. The decision also holds that… Read More
Civil Code 1799.1 requires a creditor to provide any co-signer of a consumer credit contract with a specified warning about the risks of guaranteeing someone else's debt. And Civil Code 1799.5 provides that the creditor may not enforce the contract and any accompanying security interest against the co-signer if the statutory warning isn't given. This decision holds that these provisions… Read More
The TCPA (47 USC 227(b)(1)(A)) and the FCC's implementing regulation (47 CFR 64.1200(a)(1)) both prohibit any calls made by an autodialler (or with a pre-recorded message) to a cellphone regardless of the content of the call or message--unless it is an emergency call or one made with the recipient's express consent. The FCC's regulation imposes additional restrictions on telemarketing calls… Read More
Even though home protection contracts are regulated under a separate part of the Insurance Code (Ins. Code 12740 et seq.) and are subject to the Unfair Insurance Practices Act (Ins. Code 790.03), this decision holds that home protection contracts are sufficiently different from insurance so that the homeowner cannot state a claim against the contract issuer for tortious breach of… Read More
The district court properly dismissed this false labeling suit against Target. The label of its biotin food supplement stated "helps support healthy fair and skin." Under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 343(r)(6)(B)), FDA regulation of food supplement labels preempts state law. Here, the label met the FDA's three requirements for such a label. Target had… Read More
California's Uniform Trade Secrets Act (Civ. Code 3426.7) preempts other remedies for misappropriation of trade secrets such as a claim for unfair competition under B&P Code 17200. Read More
The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car. (Civ. Code 1793.2(d)(2)(B).) This decision holds that if the buyer sells the defective car or trades it in on another car from a third party car dealer, the amount that the manufacturer must pay the buyer is reduced… Read More
