With the holidays upon us, the topical and interesting news stories have been few and far between. But the drought cannot last forever. Today, the Court of Appeal (Second Appellate District, Division Three) issued an Opinion in which it affirmed the trial court's denial of class certification in the matter of In re Vioxx Class Cases (December 15, 2009). I will need to read this Opinion with some deliberation before writing an extended post about it. However, a few things jumped out immediately and are worth noting now. Tobacco II is mentioned early in the Opinion, and I assumed that the Opinion would join the few recent Opinions that appear to conflict with Tobacco II. That does not appear to be the case here: "Nonetheless, it is clear from Supreme Court authority that recovery in a UCL action is available in the absence of individual proof of deception, reliance, and injury. (Tobacco II, supra, 46 Cal.4th at p. 320.)" (Slip op., at 25 n. 19.) Instead, the Court of Appeal affirmed the trial court's denial of class certification on the basis of damage-related issues: "The trial court’s findings with respect to the measure of damages are sufficient to support its denial of class certification with respect to the UCL and FAL causes of action." (Slip op., at 25, emphasis added.) This damages discussion, and some remarks about typicality, will require more reading and a longer post.
The trial court judge was Victoria Chaney. Associate Justice Victoria Chaney now sits in Division One of the Second Appellate District.