Tucker v. Pacific Bell: Court of Appeal Issues Mixed Ruling on Demurrer to Consumer Class Action

In Tucker v. Pacific Bell Mobile Services (8/7/12) --- Cal.App.4th ---, the plaintiffs alleged that the defendants misrepresented the number of usable minutes in their cellular phone plans. The trial court sustained defendants' demurrer to the class allegations without leave to amend, holding that there was "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." Slip op. at 3.

The Court of Appeal reversed as to the plaintiffs' claims under the Unfair Competition Law and otherwise affirmed.

First, the Court reviewed the cases on demurrers to class allegations and held that a trial court may sustain such a demurrer where there is no "reasonable possibility the plaintiffs can plead a prima facie community of interest among class members." Slip op. at 4-10.

Next, the Court took note of an almost identical action, filed in a different county by the same attorneys representing the plaintiffs in this action. The trial court in the prior action had denied certification, finding that common issues did not predominate. The Court of Appeal had affirmed because the defendants made the alleged misrepresentations in a variety of ways, and the putative class members "stand in a myriad of different positions [sic] insofar as the essential allegation in the complaint [the alleged misrepresentations] is concerned." Slip op. at 12-14.  

The Court then turned to whether the plaintiffs had a "reasonable possibility" of showing commonality in this case.  The Court held that the plaintiffs could not proceed with their common law fraud and Consumer Legal Remedies Act claims because they would have to show actual reliance to sustain an award of damages.  Slip op. at 18-22.  

The Court then held that the plaintiffs could proceed with their UCL claims, at least to the extent that they sought injunctive relief.  Distinguishing In re Tobacco II Cases (2009) 46 Cal.4th 298, the Court held that the record did not support a common inference of reliance.  Slip op. at 23-26.  Further, the Court held that the plaintiffs could not seek class-wide restitution.  Slip op. at 26-27.  However, the Court held that they plaintiffs could seek other equitable relief, including an injunction against further alleged misrepresentations. Slip op. at 28-29.  

The opinion is available here.