The trial court did not abuse its discretion in declining to apportion plaintiff's attorney fees between the Song-Beverly Act claim (on which fees were awardable by statute) and the fraudulent concealment claim (a non-fee-bearing claim) since the two claims were based on a common set of facts. In selecting a 2.0 multiplier on fees, the trial court did not improperly… Read More
This decision reverses a judgment for fraudulent concealment of an alleged defect in a car because there was no substantial evidence that before the plaintiff bought the car (thus allegedly relying on the concealment) the defendant knew of the alleged defect and that it was unable or unwilling to fix it. However, the decision also affirms the judgment for plaintiff… Read More
Ocwen, a mortgage loan servicer, periodically reviewed credit reports of borrowers who had received bankruptcy discharges of personal liabiity on debts secured deeds of trust on their homes. This decision holds that Ocwen did not violate the Fair Credit Reporting Act by doing so. Ocwen had a permissible pupose in trying to determine whether the borrowers qualified for an alternative… Read More
The FELA (45 U.S.C. § 55) invalidates any contractual provision “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act [FELA]." However, a release provided in settlement of a specific liability claim is enforceable. (See Callen v. Pennsylvania R. Co. (1948) 332 U.S. 625, 631.) Federal courts… Read More
The Federal Food, Drug and Cosmetic Act does not preempt state law requirements for dietary supplements that do not differ from those promulgated under the FDCA. So a plaintiff can bring a UCL action against a dietary supplement supplier for failing to substantiate its advertising or labeling claim about the supplement's structure or function--except that while the FDCA and FDA… Read More
Ramos leased a new Mercedes. It made grinding sounds when he backed up and turned the steering wheel. He took the car in to be fixed many times. It was never repaired to the point of stopping the noises. At lease end, Ramos returned the car, but also sued to recover damages unde the Song-Beverly Act. The jury found that… Read More
California's automatic renewal law, B&P Code 17600 et seq. requires a consumer’s affirmative consent to any subscription agreement automatically renewed for a new term when the initial term ends as well as “clear and conspicuous” disclosure of the offer terms, and an “easy-to-use mechanism for cancellation. However, this decision holds that the law's provision that "all available civil remedies that… Read More
Shloss was Cohen's attorney in a disability discrimination suit Cohen brought against Golden State when one of its delivery drivers parked in a disabled persons parking spot to make a delivery. Cohen claimed the delivery truck kept him from parking the disabled spot and thus blocked his access to nearby business A. At trial, Cohen had no evidence to show… Read More
Plaintiffs pled a viable claim for false advertising under the UCL by the defendant manufacturers of pet food labeled "prescription" pet food. Under the reasonable consumer test, use of the word "prescription" was misleading in suggesting that the pet food contrained medicine or drugs. The fact that defendants sold their products, at least initially, only through vets did not make… Read More
When a manufacturer cannot repair a new car to cure a defect after a reasonable number of attempts to do so, it must either give the buyer a replacement car or pay the buyer restitution of the full purchase price plus collateral charges and incidental damages. Civ. Code 1793.2(d). Initial registration fees payable on purchase or lease of a new… Read More
The portion of 47 U.S.C. 227(b) added in 2015 to exempt calls to collect debts owed to or guaranteed by the federal government from the TCPA's ban on robocalls to cellphones is an unconstitutional restriction on free speech. The exception is content-based as it draws distinctions based on the message conveyed in the telephone call. The exception may be invalidated… Read More
The trial court did not err in refusing to instruct the jury on the consumer expectation test in this design defect products liability case. The plaintiff was injured when his forklift, designed for use on uneven surfaces, overturned, and he fell out of the cab and suffered severe injuries. The forklift had a roll-over cage and two-point safety belts as… Read More
While FDA regulations governing nutrition facts panels preempt state law as to facts stated within the panel, the regulations do not govern or preempt state law as to the rest of the product label; so a state may require that packaging on the remainder of the product meet stricter standards than is required for the facts listed in the nutrition… Read More
While FDA regulations governing nutrition facts panels preempt state law as to facts stated within the panel, the regulations do not govern or preempt state law as to the rest of the product label; so a state may require that packaging on the remainder of the product meet stricter standards than is required for the facts listed in the nutrition… Read More
There is no private right of action for a violation of Bus. & Prof. Code 9884.9, which requires car repair facilities to provide the customer a written estimate and obtain written customer approval before beginning repairs on a car. Read More
The payment of money for a product that the plaintiff would not have purchased but for the false advertising—here, presenting products with a fake list price crossed out and an invented “discount” alongside—is sufficient economic injury to confer standing to sue under the unfair competition law, false advertising law, and the Consumer Legal Remedies Act. Read More
The Federal Trade Commission’s Holder Rule limits a creditor’s liability for claims by restricting the debtor’s total recovery (including attorney fees) to the amount paid by the debtor under the assigned contract. Read More
To state a claim under California’s consumer protection laws based on a non-disclosure, the plaintiff must show the defendant owed a duty of disclosure and the nondisclosure was material, affecting the product’s central function. Read More
Internet service providers must produce, in response to a subpoena, any material that a social media user has configured to be public, but not material configured for view by specific individuals, even though those persons might further disclose the materials. Read More
Defendant was sufficiently engaged in collection efforts to qualify as a debt collection agency and hence did not run afoul of the Fair Debt Collection Practices Act’s prohibition on creating the false belief in a consumer that a person other than the creditor is participating in the collection of the debt. Read More
