August 16, 2012
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 15, 2012. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
People v. E*Poly Star, Inc., S203477— Review Granted and Held—August 15, 2012
This is an action by county attorneys seeking injunctive relief and civil penalties against a corporation that manufactured and distributed polyethylene and paper products to state and local government entities. The counties alleged violations of the Unfair Competition Law, Business & Professions Code section 17200, et seq. (UCL) after discovering that the company had misrepresented the length, width, thickness, and count of its products. The questions presented are: (1) whether it is improper for a court to take judicial notice of a notice of violation issued by a county because the act of a county department is not the act of the State under Evidence Code section 452, subdivision (c); and (2) whether the discovery of violations of the UCL by one county governmental entity serves to provide the accrual date for related misconduct as to all other government entities since the misconduct was ongoing.
The Court of Appeal, Second District, Division Seven, held in a published opinion People v. E*Poly Star, Inc. (2012) 205 Cal.App.4th 1316, that: (1) if the court could not properly take judicial notice of the county’s notice of violation under Evidence Code Section 452, subdivision (c), it still could take such notice under subdivision (h) because the county’s notice was a verifiable fact, not reasonably subject to dispute, and capable of immediate and accurate determination; and (2) the discovery of misconduct by one governmental entity was irrelevant to the determination of the accrual date for UCL claims by the other governmental entities since “each set of transactions with a different governmental entity, even if not each individual sale, was a separate and distinct violation of the UCL with its own accrual date.”
Review is held pending the Supreme Court’s consideration and disposition of Aryeh v. Canon Business Solutions, Inc., S184929. The questions presented in Aryeh are: (1) whether, in an action under the UCL, the continuing violation doctrine, under which a defendant may be held liable for actions that take place outside the limitations period if those actions are sufficiently linked to unlawful conduct within the limitations period, may be asserted; (2) whether the continuous accrual doctrine—under which each violation of a periodic obligation or duty is deemed to give rise to a separate cause of action that accrues at the time of the individual wrong—may be asserted; and (3) whether the delayed discovery rule— under which a cause of action does not accrue until a reasonable person in the plaintiff’s position has actual or constructive knowledge of facts giving rise to a claim—may be asserted.
Review Denied (with dissenting justices)
UPDATE: Also check out this post from the UCL Practitioner regarding the grant and hold in E*Poly Star.