Unfair Business Practices

CLRA Claims — Foreign Language Translations

By on October 5, 2015 - Comments off


Lopez v. Asbury Fresno Imports, LLC (5th Dist., February 6, 2015) 234 Cal.App.4th 71, 183 Cal.Rptr.3d 696.

A husband and wife who owned a Mercedes Benz filed an action against the dealership where they purchased the car, asserting violations of various consumer protection statutes, including the Consumers Legal Remedies Act (Civ.Code, § 1750 et seq.)  The plaintiffs alleged that they were born in Mexico and had lived in the United States since 1988, and because they did not speak or read English well, their 16-year old son had acted as an interpreter when negotiating the purchase.  The plaintiffs further alleged that the dealership should have provided them with a Spanish translation of their purchase contract, as required by § 1632, because the contract was primarily negotiated between the plaintiffs and the defendant in Spanish.

The trial court ruled in favor of defendant, finding that because the plaintiffs’ son was the primary negotiator on behalf of the plaintiffs, and he negotiated with the English-speaking representatives of the defendant in English, 1632 was not applicable, as the transaction was not negotiated primarily in Spanish. The court of appeal affirmed, holding that the contract was not one negotiated primarily in Spanish and therefore was not governed by section 1632: Read the rest »


Anti-Spam Law: Sender Not Readily Traceable

By on May 2, 2012 - Comments off

Balsam v. Trancos, Inc., (First District, February 24, 2012) 203 Cal.App.4th 1083, 138 Cal.Rptr.3d 108, 12 Cal. Daily Op. Serv. 2303, 2012 Daily Journal D.A.R. 2555

A recipient of a number of unsolicited commercial e-mails filed suit against an internet advertising business, asserting violations of the Anti-spam Law (Business and Professions Code § 17529.5) which makes it unlawful to send e-mail advertisements containing falsified, misrepresented or forged header information, and provides for actual or liquidated damages of $1,000 for each unsolicited commercial e-mail. The plaintiff alleged that the defendant, which charged advertisers for sending out large numbers of promotional e-mails to recipients on various lists, utilized multiple nonsensical “fancifully named domain names” privately registered to the defendant, in order to prevent recipients from readily tracing the senders’ identity.

Following a court trial and judgment for the plaintiff, the defendant appealed, contending that the sending of commercial e-mails from multiple domain names which it owned did not violate the law, in that there was no affirmative misrepresentation or false statement of fact. The court of appeal affirmed, distinguishing the facts from Kleffman Holdings Corp. (2010) 49 Cal.4th 334, 110 Cal. Rptr. 628, and holding that header information in a commercial e-mail is unlawful when it uses a sender domain name that neither identifies the actual sender on its face nor is readily traceable to the sender using a publically available online database:

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RCRSD Partner Receive 2010 California Lawyer Attorney of The Year Awards

By on April 16, 2010 - Comments off

Robinson Calcagnie Robinson Shapiro Davis, Inc. (RCRSD) partners Mark P. Robinson, Jr. and Kevin Calcagnie were recently honored as recipients of the 2010 California Lawyer Attorney of the Year Awards. The CLAY awards are presented annually by California Lawyer Magazine to attorneys in various areas of legal practice whose achievements have made a profound impact on the law. Mr. Robinson and Mr. Calcagnie received the awards in the category of Appellate Law, for their work in connection with the California Supreme Court ruling In re Tobacco II Cases (2009) 46 Cal.4th 298, 311, 93 Cal.Rptr.3d 559, 207 P.3d 20.

(CLAY) Awards Kevin & Mark

According to California Lawyer, “the 4-3 holding breathed new life into Unfair Competition Law class actions in which consumers allege they relied on misleading statements and advertising. Under Proposition 64, passed in 2004 to curb such litigation, plaintiffs must show they lost money or property as a result of the unfair competition. Some courts had interpreted this to mean that each class member—not just the lead plaintiff—would need to show he or she suffered an injury.”

“But in Tobacco II, the state Supreme Court held that so long as the representative plaintiff meets the standing requirements of an injury, the claims of the entire class may survive. The ruling allows that some individuals may be members of a class even if they do not have standing to file suit on their own. Previously, a number of courts had denied class certification without a showing that all class members relied on the false claims.”

RCRSD attorney Karen L. Karavatos was also a member of the team that worked on the appeal, along with Sharon Arkin of the Arkin Law Firm and and Tom Haklar of Dougherty, Hildre & Haklar.


Fair Debt Collection Practice: Litigation Privilege

By on October 11, 2009 - Comments off

Komarova v. National Credit Acceptance, Inc., (First District, June 25, 2009) 175 Cal.App.4th 324, 95 Cal.Rptr.3d 880, 09 Cal. Daily Op. Serv. 8174, 2009 Daily Journal D.A.R. 9455

A woman filed an action against a debt collection agency, alleging that the defendant had engaged in abuses in violation of the Robbins-Rosenthal Fair Debt Collection Practices Act (Civil Code section 1788 et seq.). Asserting causes of action for statutory violations as well as intentional infliction of emotional distress, the plaintiff alleged that the defendant had not only mistakenly pursued the wrong individual, but had engaged in debt collection abuses such as harassing phone calls, calling without disclosure of identity, unreasonably frequent harassing communications and judicial proceedings without service of process.

Appealing from a jury verdict in favor of the plaintiff, the defendant contended that the plaintiff’s claims were barred by the litigation privilege of Civil Code section 47, which affords litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions. The court of appeal affirmed in part and reversed in part, holding that the litigation privilege did not apply to the cause of action under the Rosenthal Act, but did apply to the cause of action for emotional distress: Read the rest »