Buckley v. Advanced Critical Care L.A., Inc. CA2/2 ( 2015 )

Filed 7/22/15 Buckley v. Advanced Critical Care L.A., Inc. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TRISTRAM BUCKLEY, B253367
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC479514)
v.
ADVANCED CRITICAL CARE
LOS ANGELES, INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County. Steven J.
Kleifield, Judge. Affirmed.
Tristram Buckley & Associates and Tristram Buckley for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, Timothy R. Windham, and
Shauna Fraser for Defendants and Respondents.
Tristram Buckley (appellant) appeals from an order sustaining a demurrer to the
second cause of action in appellant’s third amended complaint (TAC). The second cause
of action alleged a class action against City of Angels Veterinary Specialty Center, LLC;
Advanced Critical Care & Internal Medicine, Inc.; Advanced Critical Care Los Angeles,
Inc. (ACCLA); Richard Mills, DVM (Dr. Mills); and Siobhan O’Neill, DVM (Dr.
O’Neill) (collectively respondents) under the Consumer Legal Remedies Act (CLRA)
(Civ. Code, § 1750 et seq.)1 Appellant contends that the trial court erred in sustaining the
demurrer without leave to amend because respondents’ conduct falls within the CLRA’s
definition of unlawful conduct and the allegations satisfy the common question
requirements for proceeding as a class action. We affirm the decision of the trial court.2
FACTUAL BACKGROUND
In 2011, appellant’s 17-year-old Pekingese dog, Shelby, began exhibiting
symptoms of illness. She was experiencing lethargy, vomiting, diarrhea, and lack of
appetite. On August 8, 2011, appellant brought Shelby to Dr. Schwartz at the Overland
Veterinary Clinic in West Los Angeles. Dr. Schwartz believed that Shelby had
pancreatitis and referred appellant to respondent ACCLA. ACCLA was a 24-hour
facility which was better equipped to give Shelby the care she needed, such as parenteral
feeding.
Dr. O’Neill was an employee of ACCLA. Dr. Schwartz had already spoken with
Dr. O’Neill at the time that appellant arrived at ACCLA. After Shelby was taken from
him for treatment, appellant sat in the waiting room where he researched respondents and
1 City of Angels Veterinary Specialty Center, LLC and Advanced Critical Care &
Internal Medicine, Inc. are not parties to this appeal.
2 The court’s order is appealable under the death knell doctrine. Under this
doctrine, an order may be appealable when the legal effect of the order “is tantamount to
a dismissal of the action as to all members of the class other than plaintiff. [Citations.]”
(Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 699.) An order sustaining a demurrer to
class action allegations without leave to amend “is appealable to the extent that it
prevents further proceedings as a class action. [Citation.]” (Wilner v. Sunset Life Ins. Co.
(2000) 78 Cal.App.4th 952, 957, fn. 1.)
2
visited their website using Google. He alleges that what he read helped sway him into
retaining respondents’ services: “City of Angels Veterinary Specialty Center is
comprised of six veterinary specialty practices under one roof. This group of veterinary
specialists and their teams of highly trained care providers have chosen to operate from
one location to offer the most efficient and effective medical care possible.” Appellant
further read:
“Supporting local veterinarians with complex cases.
“The majority of patients seen at City of Angels Veterinary Specialty
Center are referred by the primary care veterinarian. The individual
practices at City of Angels act as an extension of the primary veterinarian’s
healthcare team and are here to assist with cases that require the
intervention of specially trained doctors and caregivers, a specific
diagnostic procedure or an overnight emergency when the primary care
clinic may be closed.
“After a patient comes to one of the individual practices at City of Angels,
the primary care veterinarian is contacted and information is shared readily
in order that they remain part of the treatment planning. All cases are sent
back to the primary care veterinarian for follow up or when the medical
expertise of the practices at City of Angels is no longer needed.”
Appellant used Google to research what he believed to be Shelby’s condition
(pancreatitis) and learned that the condition can cause extreme abdominal pain, nausea,
vomiting and diarrhea. Appellant felt that Dr. O’Neill was “unwilling to accept the
pancreatitis diagnosis” because Shelby’s pancreas was not very swollen.
Dr. O’Neill’s assistant returned with an estimate of $1,200 to $2,000 for 1.5 days
of care. Appellant called other facilities to see if these rates were normal or
extraordinary. Upon speaking with an animal hospital in Glendale, he learned that the
same treatment there for two days was just $322.
Appellant raised the issue of the estimate by first asking why ACCLA was
charging $145 for an examination. Dr. O’Neill informed appellant that she is a specialist
and that is what a specialist’s examination costs. When appellant asked Dr. O’Neill why
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her facility was charging over $1,000 per day when other facilities charged just $330 for
two days he was told that this was a facility of specialists and “you get what you pay for.”
Appellant alleges that he later discovered that Dr. O’Neill was not a specialist, had
just finished her residency, and did not have a permanent license to practice in California
as she had only a temporary license. However this information was concealed from
appellant. Appellant did not think it wise to remove Shelby from the facility, and since
he wanted the best for her, he agreed to spend the higher amount of money for her care.
At all times appellant believed that Dr. O’Neill was a board certified specialist in
internal medicine. This belief was based on respondents’ sales and marketing
information as well as representations from Dr. O’Neill. Appellant alleges that these
representations were intentionally false and misleading.
Appellant alleges that Dr. O’Neill at all times was working under the supervision
of Dr. Mills.
Rather than focusing on Shelby’s condition, Dr. O’Neill became concerned about
a growth on Shelby’s stomach, for which Dr. O’Neill sought appellant’s permission to
perform a biopsy. Appellant gave his permission. When appellant later learned that
Shelby had not been given the nutritional support she needed, he angrily complained:
“You are starving my dog to death!” Shelby began receiving nutritional support and care
from respondents three days after being brought to their facility. At that time Shelby
weighed less than she did when she first came to respondents for care.
Shelby was released weighing 15 percent less than her normal body weight.
Appellant had pages of instructions regarding medications and how to feed Shelby
through a tube. Appellant followed the instructions he was given, but Shelby died the
following day.
Appellant alleges that had Dr. O’Neill been honest, and not misrepresented her
qualifications, appellant would never have entrusted respondents with Shelby. Appellant
later discovered there were other complaints against these respondents for incompetence
and false representations of specialist expertise. Appellant discovered that the average
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experience level of the medical staff at ACCLA was low, and that most of the
veterinarians were young and had just finished their residencies.
Appellant further alleges that Dr. Mills sponsored Dr. O’Neill’s temporary license,
and knew that Dr. O’Neill was not board certified in internal medicine. Appellant alleges
that Dr. Mills knew that Dr. O’Neill did not possess the skills, knowledge, experience,
prudence and diligence ordinarily possessed and exercised by specialist veterinarians.
PROCEDURAL HISTORY
On February 23, 2012, appellant commenced this action against ACCLA,
Dr. O’Neill, and Dr. Mills for violations of the CLRA, fraud and deceit, breach of
contract, and veterinary malpractice. After successive demurrers and motions to strike,
on June 11, 2013, appellant filed the TAC.
At issue in this appeal is the second cause of action in the TAC, alleged as a class
action for violations of the CLRA. Appellant alleges that there is an ascertainable class,
believed to be in excess of 200 people, who have been harmed by respondents’ practice
of falsely representing “the services they are providing and the expertise of their service
providers, thereby violating the CLRA,” and “charging rates substantially greater than
regularly charged by even more experienced providers.” Appellant alleges that the class
members can be ascertained from the respondents’ books and records. Appellant further
alleges:
“The members of the readily ascertainable class include consumers
who were victims of the [respondents’] unfair methods of competition and
unfair and deceptive acts and practices, as defined and set forth in Section
1770 of the CLRA in the Civil Code, by the [respondents’] representations,
set forth herein, that their services had sponsorship, approval and
characteristics which they did not have and representations that the
[respondents] themselves had approval, status and affiliations which they
did not have, and the [respondents’] false representations of services to be
of a particular standard and quality when in fact they were not of that
represented standard or quality but were in fact of a distinctly lesser
standard and quality.”
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Appellant alleges that the “questions of law and fact common to the class are
substantially similar and predominate over the questions affecting the individual
members, specifically the false representations made by the [respondents] concerning
their specialist services and the fees charged commensurate with specialist services
. . . which were not provided as advertised and represented by these [respondents].”
On November 4, 2013, the trial court heard respondents’ demurrer to the TAC.
The trial court sustained respondents’ demurrer to the second cause of action without
leave to amend. The trial court held:
“Plaintiff’s allegations do not meet the elements of Civil Code
section 1781(b).[3] In particular, the questions of law or fact common to
the class are not substantially similar and predominate over questions
affecting individual members and the claims or defenses of the
representative plaintiff are not typical of the claims or defenses of the class.
Each class member would be required to make individualized showings
regarding the care their animal received, the misrepresentations made to
them, their reliance on those misrepresentations, and the damages suffered.
Further, if the issues of materiality or reliance are matters that would vary
from consumer to consumer, the issue is not subject to common proof, and
the action is not proper as a class action. . . . The representations made and
reliance would vary from consumer to consumer.”
On December 20, 2013, appellant filed his notice of appeal from the trial court’s
orders sustaining the demurrer to the second cause of action without leave to amend and
dismissing the CLRA class action.
3 Civil Code section 1781, subdivision (b), provides that the court shall permit a suit
to be maintained on behalf of all members of the represented class if all of the following
conditions exist: “(1) It is impracticable to bring all members of the class before the
court. [¶] (2) The questions of law or fact common to the class are substantially similar
and predominate over the questions affecting the individual members. [¶] (3) The claims
or defenses of the representative plaintiffs are typical of the claims or defenses of the
class. [¶] (4) The representative plaintiffs will fairly and adequately protect the interests
of the class.”
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DISCUSSION
I. Standard of review
“‘On review from an order sustaining a demurrer, “we examine the complaint
de novo to determine whether it alleges facts sufficient to state a cause of action under
any legal theory, such facts being assumed true for this purpose. [Citations.]” [Citation.]
We may also consider matters that have been judicially noticed. [Citations.]’ [Citation.]
‘“[W]hen the allegations of the complaint contradict or are inconsistent with such facts,
we accept the latter and reject the former. [Citations.]” [Citation.] We give the same
precedence to facts evident from exhibits attached to the pleading. [Citations.]’
[Citation.]” (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 210
(Tucker).)
“If a demurrer is sustained, we exercise our independent judgment on whether a
cause of action has been stated as a matter of law, regardless of reasons stated by the trial
court. [Citation.] We affirm if the trial court’s decision was correct on any theory.
[Citation.]” (Tucker, supra, 208 Cal.App.4th at pp. 210-211.)
Trial courts are permitted to decide the issue of class certification on demurrer.
(Tucker, supra, 208 Cal.App.4th at p. 212.) A trial court may sustain a demurrer to class
action allegations where “‘it concludes as a matter of law that, assuming the truth of the
factual allegations in the complaint, there is no reasonable possibility that the
requirements for class certification will be satisfied. [Citations.]’ [Citations.]” (Id. at p.
211.)
“When a demurrer is sustained without leave to amend, ‘we decide whether there
is a reasonable possibility that the defect can be cured by amendment: if it can be, the
trial court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff.’ [Citation.] Leave to amend should not be granted where
amendment would be futile. [Citation.]” (Tucker, supra, 208 Cal.App.4th at p. 211.)
“‘The plaintiff “bears the burden of demonstrating that the trial court erroneously
sustained the demurrer as a matter of law” and “must show the complaint alleges facts
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sufficient to establish every element of [the] cause of action.” [Citation.]’ [Citation.]”
(Tucker, supra, 208 Cal.App.4th at p. 211.)
II. Requirements for class certification under the CLRA
Civil Code section 1781, subdivision (b), establishes the criteria for class
certification for suits brought under the CLRA. (Civ. Code, § 1781, subd. (b); Caro v.
Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 654 (Caro).) One requirement of this
provision is that “[t]he questions of law or fact common to the class are substantially
similar and predominate over the questions affecting the individual members.” (Civ.
Code, § 1781, subd. (b)(2).)
The predominance factor thus requires a showing that questions of law or fact
common to the class predominate over individual inquiries. “To determine whether the
questions of fact and law at issue in the litigation are common or individual, it is
necessary to consider the individual causes of action pleaded, and the issues raised
thereby.” (In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 128 (Vioxx).)
The CLRA declares unlawful numerous practices in the sale of goods or services
to consumers. (Civ. Code, § 1770, subd. (a).) Among the practices deemed unlawful is
“[r]epresenting that goods . . . are of a particular standard, quality, or grade . . . if they are
of another.” (Civ. Code, § 1770, subd. (a)(7).) Appellant argues, among other things,
that respondents represented to appellant and the consumer class that they were providing
the services of veterinary “specialists,” that is, services of a particular standard, grade and
quality. On the contrary, appellant argues, respondents provided inexperienced
veterinarians who had just finished their residencies, were working with temporary
licenses and were not board certified specialists. For the purposes of this appeal, we
assume the truth of these allegations and thus assume that respondents were engaging in
unlawful conduct under the CLRA.
Significantly, however, the CLRA only allows recovery if the consumer “suffers
damage as a result of” the unlawful practice. (Civ. Code, § 1780, subd. (a).) “This
provision ‘requires that plaintiffs in a CLRA action show not only that a defendant’s
conduct was deceptive but that the deception caused them harm.’ [Citation.]” (Vioxx,
8
supra, 180 Cal.App.4th 116, 129.) “Causation, on a classwide basis, may be established
by materiality. . . . [A] representation is considered material if it induced the consumer to
alter his position to his detriment. [Citation.]” (Ibid.) “In contrast, however, if the issue
of materiality or reliance is a matter that would vary from consumer to consumer, the
issue is not subject to common proof, and the action is properly not certified as a class
action. [Citation.]” (Ibid.)
III. The demurrer to appellant’s class action allegations under the CLRA was
properly sustained
The trial court determined that appellant’s CLRA class action allegations did not
meet the requirements of Civil Code section 1781, subdivision (b). In particular, it found
that the questions of law or fact common to the class are not substantially similar and do
not predominate over individual inquiries. We find that the facts and the law support the
trial court’s decision.
Appellant may satisfy his burden of showing causation under the CLRA by
showing materiality. (Vioxx, supra, 180 Cal.App.4th at p. 129.) A representation is
considered material if it “induced the consumer to alter his position to his detriment.”
(Ibid.) In contrast, if the issue of materiality or reliance is a matter that would vary from
consumer to consumer, the action is not properly certified as a class action. (Ibid.)
We find that in this case, the class members’ claims would vary, requiring
individual inquiry into each pet owner’s reliance on respondents’ alleged
misrepresentations. Appellant’s own story is instructive. Appellant brought Shelby to
respondents on the recommendation of his veterinarian. At the time that he arrived at
respondents’ care facility, his regular veterinarian had already spoken with Dr. O’Neill
regarding Shelby’s condition. It was not until after Shelby was under the care of
Dr. O’Neill that appellant perused respondents’ alleged false representations of
expertise.4 In addition, after he reviewed the representations, appellant considered taking
4 In his opening brief to this court, appellant asserts that he perused respondents’
website prior to taking Shelby to respondents’ facility. This assertion is not supported by
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Shelby elsewhere in order to obtain more favorable pricing. According to appellant, he
declined to do so because he wanted the best possible care for Shelby and he “didn’t
think it wise to take her from Culver City to Glendale in Los Angeles’ rush hour traffic.”
These allegations create a factual question as to whether respondents’ alleged false
representations were, in fact, material to appellant’s decision to use respondents’ services
for Shelby’s care. Under the facts as alleged, appellant took Shelby to respondents
because of his veterinarian’s recommendation, not because of their advertised specialties.
When appellant was taken aback by respondents’ pricing, he chose to leave Shelby with
respondents based on logistical factors and her delicate state of health, rather than solely
on respondents’ claims of expertise.
a citation to the record, therefore we need not consider it. (City of Lincoln v. Barringer
(2002) 102 Cal.App.4th 1211, 1239.)
At oral argument, appellant again asserted that his allegations were that he perused
ACCLA’s website prior to bringing Shelby there. This is not what the TAC alleges. The
relevant allegations of the TAC are as follows:
“53. Dr. Schwartz stated there was a facility, called ‘Advanced
Critical Care.’ He stated they were a 24 hour facility specializing in
emergency and critical care.
“[¶] . . . [¶]
“55. Dr. Schwartz noted Advanced Critical Care . . . was a 24 hour
specialist facility and thus better equipped to give Shelby the supportive
care she needed. He then stated there was another facility that also
provided 24 hour care.
“56. All else apparently being equal, [appellant] chose the closer of
the two facilities, ACC.
“57. Dr Schwartz then made an appointment for [appellant] to take
Shelby from his facility to ACC at 1:00 p.m. that same Monday afternoon.”
“[¶] . . .[¶]
“59. Dr. Schwartz had already spoken with . . . Dr. O’Neill,
explaining Shelby’s condition and his diagnosis. . . .
“[¶] . . .[¶]
“63. After signing the forms, [appellant] was taken to a waiting
room. Shelby was then taken from [appellant] as he waited in the cold
patient examining room.
“64. During this time, [appellant] Googled the [respondents] and
visited their website.”
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Thus, based on appellant’s allegations, it is not accurate to say that respondents’
alleged false representations were universally material. Each individual consumer
bringing his or her pet to respondents’ facility would have a different story as to why that
consumer ended up there. In addition to respondents’ advertising, such reasons could
include convenience of the location, referrals, condition of the pet, or the type of services
needed. Because the issue of materiality or reliance is a matter that would vary from
consumer to consumer, the issue is not subject to common proof, and the action is
properly not certified as a class action. (Vioxx, supra, 180 Cal.App.4th at p. 129.)
Appellant does not directly address this issue in his briefs to this Court. Instead,
he makes conclusory statements regarding the materiality of the representations. For
example, he states: “the representations relied on were key and material, in fact, the very
basis for selecting the [r]espondents’ services.” Appellant’s unsupported conclusion that
the statements made by respondents as to their expertise provided the basis for each class
member’s selection of respondents’ facility is insufficient. This is particularly true
where, as here, appellant’s own decision to use respondents’ services was based on
several different factors.
Appellant argues that a subset of the class is all consumers who used respondents’
services where the respondents represented the consumer was receiving the services of a
specialist and the respondents billed the consumer for specialist services, yet the treating
veterinarian was not a specialist. Again, we find that a determination of the
representations relied upon by those consumers would require individual inquiries into
the specific facts of each consumer’s experience and a determination of how much each
consumer relied upon the veterinarian’s claim of expertise before agreeing to pay the
high price for services. Again, appellant provides a good example. By the time he
realized that respondents’ prices were higher than other veterinarians, he thought it was
too late in the day to drive to another veterinarian through heavy traffic. He chose to pay
the higher prices rather than risk his pet’s health. Other consumers may have had various
reasons for agreeing to the higher prices, including the condition of their pet and
recommendations from others as to the quality of services that respondents provided.
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The Vioxx case is instructive. Consumers brought a class action under the CLRA
against the manufacturers of a pain relief drug, alleging that they were misled into
thinking that the drug was safer than generic pain relievers when it was actually less safe
and no more effective. The trial court found that the decision to use the drug was an
individual decision made by each physician in reliance on many different factors which
varied from patient to patient, thus the issue of reliance or materiality could not be
resolved on a classwide basis. The Second Appellate District affirmed this decision,
noting that the plaintiffs’ focus on the manufacturer’s alleged misrepresentations was a
“vast oversimplification of the matter.” (Vioxx, supra, 180 Cal.App.4th at p. 133.)
Among other things, the Court of Appeal noted that “all physicians are different and
obtain their information about prescriptions from myriad sources.” (Id. at p. 134.)
Furthermore, “physicians consider many patient-specific factors in determining which
drug to prescribe, including the patient’s history and drug allergies, the condition being
treated, and the potential for adverse reactions with the patient’s other medications -- in
addition to the risks and benefits associated with the drug. When all of these patient-
specific factors are a part of the prescribing decision, the materiality of any statements
made by Merck to any particular prescribing decision cannot be presumed.” (Ibid., fn.
omitted.)
Similarly, here, consumers obtain their information about veterinarians from
different sources. Some may receive referrals from other veterinarians or friends; others
may read online reviews. Some may chose a veterinarian that is close to their home or
workplace. In addition, pet-specific factors may be considered, such as the types of
services a certain veterinarian provides or whether the animal is familiar with the
veterinarian or location. Under the circumstances, the materiality of the statements made
by respondents regarding their specialist services cannot be presumed.
In Brown v. Regents of the University of California (1984) 151 Cal.App.3d 982(Brown), the Court of Appeal reached a similar conclusion regarding plaintiffs’
allegations of factual concealment and misrepresentation regarding the level of coronary
care provided at the University of California, Davis, Medical Center (Medical Center)
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and the Medical Center’s failure to provide adequate coronary care. (Id. at p. 986.)
Among other things, plaintiffs contended that the defendants made oral and written
misrepresentations regarding the “quality of the coronary care received at the Medical
Center: that the most modern equipment was used, that patients benefit from the most
advanced surgical techniques and equipment available, that patients are provided
specially trained physicians and staff, that the hospital stay is made as comfortable and
short as possible, and that appropriate referrals are made as needed.” (Id. at p. 987.)
Plaintiffs alleged that such representations were false.
The Court of Appeal found that individual issues substantially predominated over
common questions. While agreeing that the fact that certain representations were made,
and proof of the falsity of these statements would be common to all members of the class,
the court found that the common questions ended there:
“Beyond these elements, however, we encounter a veritable
quagmire of tough factual questions which can only be resolved by
individual proof. Whether a particular class member relied upon the
representation, for example, will require close scrutiny of what was said
between a class member and his physician. A class member’s particular
medical condition and method of treatment must be examined in order to
determine proximate cause of any claimed damage and the actual extent of
such damage. All of the foregoing involve questions of what is medically
appropriate for a particular patient under his particular circumstances.
Viewed in this context, the complaint raises numerous and substantial
individual questions of fact such that it is not reasonably possible plaintiffs
will be able to establish a sufficient community of interest to warrant class
action.”
(Brown, supra, 151 Cal.App.3d at p. 989.)
Several other cases have agreed that where, as here, proof of reliance will involve
individual inquiries, a class action is inappropriate. (See, e.g., Tucker, supra, 208
Cal.App.4th 201 [misrepresentations regarding rounding up minutes of use inappropriate
for class action because misrepresentations were communicated through various means
and class members’ awareness would necessarily involve individualized inquiries]; Caro,
supra, 18 Cal.App.4th 644 [class action inappropriate for claims of misrepresentations in
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orange juice packaging because consumers may not have looked at the packaging and
may not have been induced to purchase by the representations on the packaging];
Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830 [class action
complaint alleging improper and deceptive sales practices in sale of whole life insurance
policy inappropriate for class action because sales agents were free to use different
methods and materials in their sales presentations and consumers may not have received
and relied upon the same information]; Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th
966 [class action complaint alleging that company had disseminated false advertising to
induce purchase of high definition services inappropriate for class certification because
the class would include subscribers who saw differently-worded advertisements and
others who may have relied on word of mouth rather than advertisements].)
Appellant cites a federal case, Chavez v. Blue Sky Natural Bev. Co. (N.D.Cal.
2010) 268 F.R.D. 365 (Chavez) for the proposition that “reliance on the alleged
misrepresentations may be inferred as to the entire class if the named plaintiff can show
that material misrepresentations were made to class members. [Citation.]” (Id. at p.
376.) The Chavez court did not provide a thorough analysis of why the representations at
issue were material, therefore we decline to find that the case supports appellant’s
position in this matter. In its cursory discussion, the Chavez court relied heavily on
Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145 (Steroid). Steroid involved
the over-the-counter sale of products containing anabolic steroids, which are controlled
substances under California law. In discussing the viability of the plaintiffs’ CLRA class
action claim, the Steroid court noted, “The CLRA claim requires a different analysis than
the UCL claim, because the CLRA requires a showing of actual injury as to each class
member.” (Id. at p. 155.) The court emphasized that “both the named plaintiff and
unnamed class members must have suffered some damage caused by a practice deemed
unlawful under Civil Code section 1770.” (Steroid, at p. 156.) In determining that the
named plaintiff had successfully made such a showing, the Steroid court stated: “[T]he
question that must be answered in this case is whether a reasonable person would find it
important when determining whether to purchase a product that it is unlawful to sell or
14
possess that product. It requires no stretch to conclude that the proper answer is ‘yes’ --
we assume that a reasonable person would not knowingly commit a criminal act.
[Citations.]” (Id. at p. 157.)
In the present matter, the materiality question is far more complex. As discussed
in detail above, numerous significant factual questions go into an individual’s decision
regarding appropriate medical care for his or her pet. There are far too many pet-specific
and owner-specific reasons that individual consumers may have chosen to utilize
respondents’ services to make a generalized finding regarding the materiality of
respondents’ claims of specialization.
Based on the facts and the law discussed above, we find that appellant’s
allegations do not meet the requirements of Civil Code section 1781, subdivision (b).
Questions of fact on the issue of reliance are not substantially similar. Instead, individual
inquiries on this issue will predominate. Thus, a class action is inappropriate and
respondents’ demurrer to the class action cause of action was properly sustained.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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