holding that “[t]hrough the UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices in order to protect the public and restore to the parties in interest money or property taken by means of unfair competition”
How later courts described this case
- holding that “[t]hrough the UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices in order to protect the public and restore to the parties in interest money or property taken by means of unfair competition”
- defining the term “representative action” as “a UCL action that is not certified as a class action [but is one] in which a private person is the plaintiff and seeks disgorgement and/or restitution on behalf of persons other than or in addition to the plaintiff’
- reasoning that a plaintiff would be entitled to restitution for unpaid earned wages, but that restitution would not be proper if a plaintiff had a mere “expectancy” in future profits
- limiting the “including, but not limited to” phrase when the legislature “offer[s] as examples peculiar things or classes of things”
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Arias v. Superior Court
23 Cal.4th 116, 123 , superseded by statute on other grounds as stated in Arias v. Superior Court (2009) 46 Cal.4th 969
Distinguished
Distinguished by Korea Supply Co. v. Lockheed Martin Corp., 109 Cal. Rptr. 2d 417 (2001)
[4] We reject respondents' attempt to characterize disgorgement under the facts of this case as a fluid recovery remedy, which the Kraus Court held to be improper in a representative action in which no class has been certified.
The opinion
KENNARD, J.—I
I concur in the majority opinion except for the following dictum discussing restitution by á defendant to nonparties in an action under Business and Professions Code section 17200 et seq., the unfair competition law (UCL): “If the possibility of future suits exists, it may be appropriate for the court to condition payment of restitution to [nonparty] beneficiaries of a representative UCL action on execution of acknowledgment that the payment is in full settlement of claims against the defendant, thereby avoiding any potential for repetitive suits on behalf of the same persons or dual liability to them.” (Maj. opn., ante, at pp. 138-139.)
The majority’s statement is dictum because, as the majority elsewhere recognizes (maj. opn., ante, at p. 138), there is no realistic possibility of repetitive suits by nonparties in this case. Its statement is imprudent because such details of case management are best left to the trial court and the parties in the first instance, rather than to an appellate court with its limited ability to foresee the course of future litigation and to create remedies in the abstract for potential problems that might or might not arise. Most importantly, the majority’s proposal that a nonparty must give up whatever other non-UCL claims it may have in order to receive restitution for its UCL claims is on its merits dubious and unnecessary. No question of dual liability would arise from permitting a nonparty to receive UCL restitution in the first action and to bring a subsequent action on its non-UCL claims: to the extent UCL restitution already paid overlaps with damages suffered as a result of the non-UCL claims, the defendant would be entitled to credit in the subsequent action for the restitution already paid, just as it would be entitled to credit if the UCL and non-UCL claims were brought in a single action. Moreover, if a nonparty were required to bring a separate action on both its UCL and non-UCL claims to preserve its non-UCL claims, the nonparty could in the separate action prevent the defendant from contesting the merits of the UCL claim by invoking collateral estoppel, making the defendant’s liability a foregone conclusion and the relitigation of the UCL claim a wasteful and pointless exercise.