Wednesday, June 23, 2010

Second District Concludes That “Doctrine of Continuing Violations” Inapplicable to UCL: Aryeh v. Canon Business Solutions, Inc.

On June 23, 2010, the Second District (Division 8) affirmed a trial court order dismissing plaintiff’s UCL claim at the pleading stage on statute of limitations grounds in Aryeh v. Canon Business Solutions, Inc., __ Cal.App.4th __ (2010). According to the Court, the plaintiff’s UCL action, which involved an alleged reoccurring excessive copying charge, could not avoid the defendant’s statute of limitations defense based on the “doctrine of continuing violations” under the facts of his case:
Appellant does not dispute that the four-year statute of limitations prescribed in section 17208 applies to his action. However, appellant asserts the statutory clock not only starts at the time of the first occurrence -- i.e., the time an allegedly offending act was committed and caused injury -- but rather “re-starts” each time the defendant invades the plaintiff’s rights and causes injury. Specifically, appellant argues that a doctrine of continuing violations should be applied to violations of the UCL. We reject appellant’s contention. His UCL cause of action accrued more than four years before he filed his action, and the continuing violation doctrine does not apply to the circumstances of this case.
Slip Opinion, at 6.

In reaching its decision, the Court found it material that the complaint admitted (1) that plaintiff had known of the charges six years before filing the lawsuit, and (2) and that the complaint was not filed until the underlying copy service agreement had expired. According to the Court, these facts, as well as the nature of the alleged violations at issue, removed plaintiff’s case from the policy justifications underpinning application of the doctrine in employment discrimination context (which is where the continuing violations doctrine is derived):
We find no correlation between appellant’s claim seeking recovery for individual instances in which he purports to have been wrongfully charged for “test” copies and the plaintiffs’ claims in Richards and Alch, which were not based upon specific acts of alleged misconduct, but instead upon on-going, accumulative harassment in the case of Richards or a broad and longstanding corporate policy of employment discrimination in the case of Alch. (Richards, supra, 26 Cal.4th at p. 822; Alch, supra, 122 Cal.App.4th at pp. 375-376.) Here, once appellant was aware he was being “overcharged” for test copies and that his protests to Canon were futile, he could and should have taken diligent action. He could not wait for years until the agreement expired while more “overcharges” accumulated before filing a complaint.
Routinely billing and collecting for “test” copies is not the type of harassing and egregious conduct the continuing violation doctrine is designed to deter. No comparable policy considerations compel applying the continuing violations doctrine to violations of the UCL. (Cortez, supra, 23 Cal.4th at pp. 173.) The UCL is not an “all-purpose substitute” for a tort or contract action. (Ibid.) The Legislature has expressed a goal that the UCL be “a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.” (Id. at pp. 173-174.) A claim for recovery of past damages is not within the contemplation of the UCL.
Slip Opinion, at 11-12.

Putting the unique factual issues aside, the reach of this opinion is nonetheless unclear. As explained in the Dissent, the majority opinion only considered the “continuing violation” doctrine, which the dissent deemed was facially inapplicable insofar as the plaintiff was not pursuing claims dependent on conduct occurring both inside and outside of the statutory period. See Slip Opinion (dissent), at 3-4 (“If appellant were arguing that his pre-January 31, 2004 claims are nevertheless actionable because the continuing violation rule allows them to be joined with his timely claims, then we would have the issue the majority raises: Does the continuing violation rule apply to UCL claims? But that is not appellant’s argument.”). According to the dissent, the fact pattern at issue implicated the “continuous accrual” doctrine – a doctrine which was not considered or encompassed within the holding by the Majority:
A careful parsing of “continuing violation” and “continuous accrual” reveals more than a semantical difference. The former describes what is essentially a fiction: a wrong committed sometime in the past will be deemed to have also been committed later if it is closely connected with more recent misconduct. The original violation will be treated as continuing even if the earlier act is completed. Continuous accrual is different. Rather than extending the impact of prior conduct, it acknowledges the reality that similar acts can continue to occur: one can breach the same contract over and over again in substantially the same manner. Earlier conduct is not extended but repeated. Witkin describes the rule as follows: “In several types of cases it has been held that, where a right or obligation is continuing, successive causes of action to enforce it continuously accrue, and the bar of the statute can only be set up against those causes on which the period has run.” (3 Witkin Cal. Procedure, supra, Actions, § 669, p. 886.)
Slip Opinion (dissent), at 5.

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