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Tucker v. Pacific Bell Mobile Services

Court of Appeal of California, First Appellate District, Division Five

August 7, 2012, Opinion Filed



 [**345]  BRUINIERS, J.—Plaintiffs (Plaintiffs) alleged that the defendant wireless telephone companies (collectively, Defendants)1 made material misrepresentations to the consuming public as to the actual number of usable (i.e., conversational) airtime minutes in advertised subscriber rate plans.2 The trial court sustained Defendants' demurrer to the class action allegations of the fifth amended complaint without leave to amend, relying in part on Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 944 [124 Cal. Rptr. 3d 565] (Knapp), involving similar allegations. We reverse as to dismissal of Plaintiffs' equitable claims under the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.),3 and otherwise affirm.

 [**346]  I. Background

Plaintiffs'4 complaint, originally filed in December 2003, challenged Defendants' disclosures of the practice of billing for airtime in full minute increments, with partial minutes of use rounded up.5 Plaintiffs alleged that Defendants' advertisements and other promotional materials misrepresented or inadequately disclosed this rounding up policy, in violation of the UCL and the false advertising law (FAL; § 17500 et seq.). Plaintiffs filed their fifth amended complaint (FAC) in this action in approximately February 2011.  [***3] The  [*209]  first three causes of action of the FAC assert claims under the UCL. The first cause of action claims unlawful business practices, the second cause of action alleges unfair business practices, and the third cause of action sets forth a claim for fraudulent business practices. The fourth cause of action claims fraud by Defendants. The fifth cause of action asserts a claim for the violation of the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.). Plaintiffs sought to represent a class composed of “all consumers who have subscribed to a term contract for wireless telephone service in California from one or more of the Defendants herein, at any time from and after January 1, 1999 until the present time.” Plaintiffs requested damages, restitution, and injunctive relief.

Defendants demurred to the class allegations of the FAC on the ground that there was no reasonable probability Plaintiffs could certify a class following the decision in Knapp, and that Plaintiffs were collaterally estopped from doing so. Defendants requested judicial notice of portions of the papers Plaintiffs had filed in support of their motion for leave to file the FAC, of trial court pleadings filed in Ball, of the then unpublished appellate decision in Knapp, and of the operative trial court pleading at issue in Knapp. Plaintiffs also filed a request seeking judicial notice of prior pleadings  [***5] in the instant case, certain trial court pleadings in Ball, and a declaration filed on behalf of Cingular in the Alameda County Superior Court in coordination proceedings seeking to compel arbitration (Cellphone Termination Fee Cases, JCCP No. 4332).

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208 Cal. App. 4th 201 *; 145 Cal. Rptr. 3d 340 **; 2012 Cal. App. LEXIS 866 ***; 2012 WL 3175619

DIANE TUCKER et al., Plaintiffs and Appellants, v. PACIFIC BELL MOBILE SERVICES et al., Defendants and Respondents.

Subsequent History: Request denied by Tucker v. Pac. Bell Mobile Servs., 2012 Cal. LEXIS 11134 (Cal., Nov. 28, 2012)

Prior History:  [***1] Superior Court of San Mateo County, No. CIV436164, Robert D. Foiles, Judge.

Tucker v. Pacific Bell Mobile Services, 186 Cal. App. 4th 1548, 115 Cal. Rptr. 3d 9, 2010 Cal. App. LEXIS 1255 (Cal. App. 1st Dist., 2010)


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Civil Procedure, Special Proceedings, Class Actions, Appellate Review, Appeals, Standards of Review, De Novo Review, Responses, Defenses, Demurrers & Objections, Demurrers, Certification of Classes, Abuse of Discretion, Pleadings, Amendment of Pleadings, Leave of Court, General Overview, Prerequisites for Class Action, Commonality, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Torts, Fraud & Misrepresentation, Actual Fraud, Elements, False Advertising, Communications Law, Federal Acts, Federal Communications Act, Federal Preemption