California’s Unfair Competition law is codified at Cal. Bus. & Prof. Code, §§ 17200 et seq.; see also California False Advertising Law, Bus. & Prof. Code, §§ 17500 et seq., and California Consumer Legal Remedies Act, Civ. Code, §§ 1750, et seq. Section 17200’s prohibitions are stated in the disjunctive: “it prohibits practices that are ‘unfair,’ ‘unlawful’ or ‘fraudulent.’” Countrywide Financial Corp. v. Bundy, 187 Cal. App. 4th 234, 256 (2010).
“In order to bring a claim for violation of Section 17200, ‘a plaintiff must show either an (1) “unlawful, unfair, or fraudulent business act or practice,” or (2) “unfair, deceptive, untrue or misleading advertising.”’” Makreas v. First National Bank of N. Cal., 856 F. Supp. 2d 1097, 1101 (N.D. Cal. 2012).
“In order to state a claim for a violation of the unfair competition law (UCL) (Bus. & Prof. Code, § 17200), a plaintiff must allege that the defendant committed a business act that is either fraudulent, unlawful, or unfair.” Levine v. Blue Shield of California, 189 Cal. App. 4th 1117, 1136 (2010).
In 2004 “[t]he UCL was amended to confine standing to those actually injured by a defendant’s business practices.” Schwartz v. Provident Life & Accident Ins. Co., 216 Cal. App. 4th 607, 611 (2013).
The specific elements vary with the type of claim:
1. “A UCL claim based on the fraudulent prong can be based on representations that deceive because they are untrue, but ‘“‘also those which may be accurate on some level, but will nonetheless tend to mislead or deceive. . . . A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable under’” the UCL.’” Morgan v. AT&T Wireless Services, Inc., 177 Cal. App. 4th 1235, 1255 (2009).
2. “‘In order to state a cause of action under the fraud prong of the UCL a plaintiff need not show that he or others were actually deceived or confused by the conduct or business practice in question. “The ‘fraud’ prong of [the UCL] is unlike common law fraud or deception. A violation can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived.”’” Buller v. Sutter Health, 160 Cal. App. 4th 981, 986 (2008). “[A]llegations that the fraudulent deception was ‘actually false, known to be false by the perpetrator and reasonably relied upon by a victim who incurs damages’ are not necessary.” In re Google Android Consumer Privacy Litig., No. 11-MD-02264 JSW, 2013 U.S. Dist. LEXIS 42724, at *28 (N.D. Cal. Mar. 26, 2013) (citing In re Tobacco II Cases, 46 Cal. 4th 298, 312 (2009)).
3. “‘When a plaintiff who claims to have suffered injury from a direct competitor’s “unfair” act or practice invokes section 17200, the word “unfair” in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.’” Buller v. Sutter Health, 160 Cal. App. 4th 981, 990-91 (2008). In addition, a line of cases holds that the claim “‘requires the allegedly unfair business practice be “tethered” to a legislatively declared policy or has some actual or threatened impact on competition.’” Id. at 991.
4. “Under the UCL, ‘[a]n unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.’ . . . Virtually any law can serve as the predicate for a Business and Professions Code section 17200 action; it may be ‘“‘civil or criminal, federal, state or municipal, statutory, regulatory, or court-made. . . It is not necessary that the predicate law provide for private civil enforcement. . . . [Business and Professions Code s]ection 17200 “borrows” violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.’” . . . ‘“an ‘unfair’ business practice occurs when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”. . .’” Gafcon, Inc. v. Ponsor & Associates, 98 Cal. App. 4th 1388, 1425 n.15 (2002).
5. “To prevail on a claim for false advertising, a plaintiff must show that the defendant, with the intent to perform professional or other services, made a statement concerning those services that is untrue or misleading. . . . A statement is untrue or misleading if members of the public are likely to be deceived. . . . What is more, ‘any violation of Section 17500 necessarily violates Section 17200. . . .Thus, a misleading statement is an unfair business practice.’” iYogi Holding Pvt. Ltd. v. Secure Remote Support, Inc., No. C-11-0592 CW, 2011 U.S. Dist. LEXIS 144425, at *42 (N.D. Cal. Oct. 25, 2011).
6. “To prove a violation of section 17043 [prohibiting sales below cost], the cases have declared that a plaintiff must allege and prove two elements: (1) below-cost sales undertaken for the purpose of injuring competitors or destroying competition that (2) have resulted in a competitive injury.” Bay Guardian Co. v. New Times Media LLC, 187 Cal. App. 4th 438, 454 (2010); see Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180-81 (1999).
CALIFORNIA STATE COURTS
Supreme Court of California: Zhang v. Superior Court, 57 Cal. 4th 364, 370-71, 377 (2013); Rose v. Bank of America, N.A., 57 Cal. 4th 390, 394 (2013); Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180-81 (1999).
California 1st District: Schwartz v. Provident Life & Accident Ins. Co., 216 Cal. App. 4th 607, 611 (2013); Jolley v. Chase Home Finance, LLC, 213 Cal. App. 4th 872, 906-07 (2013).
California 2d District: Chapman v. Skype Inc., 220 Cal. App. 4th 217, 226 (2013); Countrywide Financial Corp. v. Bundy, 187 Cal. App. 4th 234, 256 (2010).
California 3d District: Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 258 (2011); McAdams v. Monier, Inc., 182 Cal. App. 4th 174, 187-88 (2010).
California 4th District: Aspiras v. Wells Fargo Bank, N.A., 219 Cal. App. 4th 948, 960-61, 962 (2013); Levine v. Blue Shield of California, 189 Cal. App. 4th 1117, 1136-37 (2010).
California 5th District: People v. Persolve, LLC, 218 Cal. App. 4th 1267, 1272-73 (2013).
California 6th District: K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc., 171 Cal. App. 4th 939, 961 (2009); Linear Technology Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 133-34 (2007).
CALIFORNIA FEDERAL COURTS
United States Court of Appeal for the 9th Circuit: Hinojos v. Kohl's Corp., 718 F.3d 1098, 1103-04 (9th Cir. 2013).
Central District: Rodriguez v. Old Dominion Freight Line, No. 13-891 DSF (RZx), 2013 U.S. Dist. LEXIS 171328, at *19-20 (C.D. Cal. Nov. 27, 2013); Hibu Inc. v. Lawrence, No. SACV 13-0333-DOC (JPRx), 2013 U.S. Dist. LEXIS 173324, at *12-16 (C.D. Cal. Nov. 25, 2013).
Eastern District: Sears v. Bank of Am., N.A., No. 2:13-cv-01664-KJM-AC, 2013 U.S. Dist. LEXIS 169507, at *12-13 (E.D. Cal. Nov. 27, 2013); Rios v. Bank of America, No. 2:12-CV-02439-KJM-AC, 2013 U.S. Dist. LEXIS 169486, at *17-18 (E.D. Cal. Nov. 27, 2013).
Northern District: FlatWorld Interactives LLC v. Apple Inc., No. 12-cv-01956-WHO, 2013 U.S. Dist. LEXIS 172453, at *27-28 (N.D. Cal. Dec. 6, 2013); O'Connor v. Uber Techs., Inc., No. C-13-3826 EMC, 2013 U.S. Dist. LEXIS 171813, at *54-58 (N.D. Cal. Dec. 5, 2013); Makreas v. First National Bank of N. Cal., 856 F. Supp. 2d 1097, 1101 (N.D. Cal. 2012).
Southern District: French v. JP Morgan Chase Bank, N.A., No. 13-cv-969-BEN (BLM), 2013 U.S. Dist. LEXIS 168309, at *15-17 (S.D. Cal. Nov. 25, 2013); Reade v. CitiMortgage, Inc., No. 13cv404 L (WVG), 2013 U.S. Dist. LEXIS 160681, at *20-23 (S.D. Cal. Nov. 7, 2013); Ware v. Bayview Loan Servicing, LLC, No. 13-CV-1310 JLS (NLS), 2013 U.S. Dist. LEXIS 163346, at *17-23 (S.D. Cal. Oct. 29, 2013).