McCONNELL, P. J. —
This action under the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.)
On appeal, plaintiffs do not challenge the court's finding that they received value from Marlboro Lights or its rejection of their evidence on consumer losses. Rather, they contend the court erred as a matter of law by determining the only measure of restitution in a UCL products action is the measure set forth in Vioxx. Plaintiffs assert value is immaterial, and they were not required to show any loss attributable to the deceptive advertising, because as an alternative measure the court had discretion to order Philip Morris to make a full refund of consumer expenditures, or its profits thereon, exclusively for the purpose of deterrence.
We conclude all of plaintiffs' points lack merit, and thus we affirm the judgment. Plaintiffs ignore well-established law on each point, and opt instead to rely on broad language from inapposite opinions. "Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered." (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].)
Philip Morris has filed a protective cross-appeal, challenging the propriety of class treatment. Philip Morris agrees the appeal should be dismissed if we affirm the judgment.
This action has a tortuous procedural history, but given the issues on appeal only a brief summary is required. The original complaint was filed in 1997 against several tobacco companies, but eventually Philip Morris was the only remaining defendant. The action was coordinated with several other actions under the caption In re Tobacco Cases II and assigned to Judge Ronald Prager.
In 2001, a seventh amended complaint was filed, which alleged that Philip Morris violated the UCL (§ 17200 et seq.) and the FAL (§ 17500 et seq.) through, among other things, its advertising of Marlboro Lights.
In November 2004, the voters approved Proposition 64, an initiative measure to amend the standing requirements for UCL actions. Under the new section 17204, a private UCL claim may be pursued "by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition." The court decertified the class on the ground the question of "whether class members could satisfy the standing requirements of Proposition 64 required individual inquiries." Before Proposition 64, a UCL action could be brought by "any person acting for the interests of itself, its members or the general public." (Former § 17204.)
In 2009, the California Supreme Court reversed the decertification order. (Tobacco II, supra, 46 Cal.4th at p. 329.) Tobacco II holds that section 17204's standing requirements apply only to the class representative, and "that Proposition 64 was not intended to, and does not, impose section 17204's standing requirements on absent class members in a UCL class action where class requirements have otherwise been found to exist." (Tobacco II, at p. 324.) On remand, the trial court reinstated the Marlboro Lights claim in response to the United States Supreme Court's opinion in Altria Group, Inc. v. Good (2008) 555 U.S. 70 [172 L.Ed.2d 398, 129 S.Ct. 538].
In 2011, plaintiffs filed the operative 11th amended complaint (complaint), with five named plaintiffs. One of them withdrew, and in 2012 the court ruled that only one of the remaining four, Trina Watton, had standing to represent the class with respect to the Marlboro Lights claim. The court "redefined the class objective as: `All people who, at the time they were residents of California, smoked in California between January 1, 1998, and April 23, 2001, one or more Marlboro Lights cigarettes manufactured by Philip Morris..., and who were exposed to defendant's marketing and advertising activities in California.'"
In 2013, a bench trial was held over approximately 10 weeks. The court determined Philip Morris's advertising of Marlboro Lights was deceptive within the meaning of the UCL. The court found that the descriptors "Lights" and "lowered tar and nicotine" indicated Marlboro Lights delivered less tar and nicotine to smokers, and were thus less harmful than full-flavored cigarettes such as Marlboro Reds. However, Philip Morris's own research
The court, however, denied plaintiffs' prayer for restitution for lack of competent evidence of any loss attributable to the deceptive advertising. The court, relying on Vioxx, determined that since plaintiffs received value from Marlboro Lights apart from the deceptive advertising, the proper measure of restitution was the difference between the price paid and the actual value received. (Vioxx, supra, 180 Cal.App.4th at p. 131.)
The court rejected Watton's claim she purchased Marlboro Lights based exclusively on the advertising, because she admitted in cross-examination that she continued to purchase them for six years after learning they were no less harmful than Marlboro Reds or other full-flavored cigarettes.
The court noted that in an effort to calculate a price/value differential, plaintiffs relied exclusively on an online "conjoint survey" designed and conducted by Joel Steckel, Ph.D. Dr. Steckel asked 652 participants to choose between hypothetical cigarette products based on four features: taste, price, health risks, and pack type. He used "off-the-shelf Sawtooth software to generate 10,000 draws, or estimated choices, based on each [participant's] selections. Using the computer output from these simulated choices Dr. Steckel compared the utility that survey [participants] purportedly placed on the health risks of Marlboro Lights to Marlboro Reds to their utility for various price levels. [¶] For example, if [a participant] received the same utility from the health risks of Marlboro Lights relative to Marlboro Reds from a 50 percent discount of the price of Marlboro Lights, Dr. Steckel would conclude these [participants] would be willing to pay 50 percent of the price of Marlboro Lights to obtain the lesser health risks of Marlboro Lights to Marlboro Reds. Dr. Steckel calculated a statistical average of all [participants] of these utilities to conclude that 40.8 percent of the money class members spent on light cigarettes was based on the reduced health risks of light cigarettes."
The court rejected the conjoint survey for a variety of reasons. The survey did not measure the difference between the price paid for Marlboro Lights and the actual value received, but rather measured "benefit of the bargain" damages not available in a UCL action; conjoint surveys have not been accepted in the relevant scientific community for litigation purposes; the method of selecting participants was flawed, and many participants were not class members; the fictional cigarettes excluded attributes that many class members testified were more important than the included attributes, and certain class members testified that in purchasing Marlboro Lights they did not even consider health risks; the survey instructions were difficult to understand, the questions were repetitive and complex, and sometimes participants gave different responses to the same question; plaintiffs' economist expert, Robert Pindyck, Ph.D., conceded there was a substantial error in the methodology, which reduced the value of the supposed health benefits of Marlboro Lights from 40.8 percent to 22.8 percent; the survey was not based on "real world spending behavior involving giving up one's own money"; and the survey produced nonsensical results. On the latter point, the court noted that more than 28 percent of participants "showed a preference for health risks `greater than Marlboro Reds and Marlboro Lights,'" the most
The court also denied injunctive relief on the ground of mootness, as "the evidence established that the descriptors on which the [p]laintiffs base their case have been removed and, because of changes in the law, these descriptors can never be used again." Further, the court determined "the public health community widely disseminated the information that lights are not healthier than regular cigarettes"; the Federal Cigarette Labeling and Advertising Act (15 U.S.C. § 1331 et seq.) preempts any mandatory labeling changes or disclosures on labels; and in Tobacco Cases I, the plaintiffs waived any right to further injunctive relief or corrective advertising.
Plaintiffs unsuccessfully moved for a new trial. Philip Morris moved for costs under Code of Civil Procedure section 1032, and plaintiffs moved to strike, or alternatively, to tax costs. The court determined Philip Morris was the prevailing party, and awarded it $764,552.73 in costs from class representative Watton. The court denied plaintiffs' request for discovery sanctions under Code of Civil Procedure section 2033.420.
"[A] practice may violate the UCL even if it is not prohibited by another statute. Unfair and fraudulent practices are alternate grounds for relief. [Citation.] False advertising is included in the `fraudulent' category of prohibited practices." (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370 [159 Cal.Rptr.3d 672, 304 P.3d 163] (Zhang).) "To state a cause of action for violation of the UCL under the `fraudulent' prong, a plaintiff must show that members of the public are likely to be deceived." (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1416 [150 Cal.Rptr.3d 618].)
"To achieve its goal of deterring unfair business practices in an expeditious manner, the Legislature limited the scope of the remedies available under the UCL. `A UCL action is equitable in nature; damages cannot be recovered.'" (Tobacco II, supra, 46 Cal.4th at p. 312.) "Injunctions are `the primary form of relief available under the UCL to protect consumers from unfair business practices,' while restitution is a type of `ancillary relief.'" (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337 [120 Cal.Rptr.3d 741, 246 P.3d 877] (Kwikset).) Restitution is available "to restore to any person in interest any money or property ... which may have been acquired by means of such unfair competition." (§ 17203.)
"[T]he equitable remedies of the UCL are subject to the broad discretion of the trial court. [Citation.] The UCL does not require `restitutionary or injunctive relief when an unfair business practice has been shown. Rather, [section 17203] provides that the court "may make such orders or judgments... as may be necessary to prevent the use or employment ... of any practice which constitutes unfair competition ... or as may be necessary to restore ... money or property."'" (Zhang, supra, 57 Cal.4th at p. 371.)
Under an abuse of discretion standard of review, the "trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579], fns. omitted.) A "court abuses its discretion `"where no reasonable basis for the action is shown. [Citation.]"'" (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1367 [179 Cal.Rptr.3d 523].)
Plaintiffs do not challenge the sufficiency of the evidence to support the court's findings that they received value from Marlboro Lights apart from the deceptive advertising, and they did not submit competent evidence to establish the difference between the price they paid for Marlboro Lights and the actual value they received, the measure of restitution utilized in Vioxx, supra, 180 Cal.App.4th at page 131. Plaintiffs contend that as a matter of law, the court erred by determining Vioxx sets forth the exclusive measure of restitution for a UCL products case. They assert value is immaterial, and they were not required to prove any consumer losses attributable to the deceptive advertising, because as an alternative measure the court had discretion to order Philip Morris to make a full refund of their expenditures on Marlboro Lights, or its profits thereon, solely for the purpose of deterrence.
Vioxx affirmed the trial court's denial of class certification in a UCL action. (Vioxx, supra, 180 Cal.App.4th at p. 127.) In Vioxx, the plaintiffs alleged a pharmaceutical company "misled consumers into paying more for Vioxx by misrepresenting it as safer than generic naproxen," and as restitution they "sought the difference between the price paid for Vioxx and the price which would have been paid for generic naproxen." (Id. at p. 122.)
Vioxx concluded that since the "evidence indicates that Vioxx was worth more than naproxen to a majority of class members, it is more than sufficient
Vioxx cited Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163 [96 Cal.Rptr.2d 518, 999 P.2d 706] (Cortez), in which the California Supreme Court held that orders for the payment of unpaid wages were a restitutionary remedy authorized by section 17203, over the defendant's objection they were damages unavailable in a UCL action. (Cortez, at p. 178.) Cortez explained: "`Damages,' as that term is used to describe monetary awards, may include a restitutionary element, but when the concepts overlap, the latter is easily identifiable. Damages for fraud are an example. In a fraud action the court may award as damages money fraudulently taken from the plaintiff. Civil Code section 3343, subdivision (a), provides: `One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction....' Thus, while the award of damages may be greater than the sum fraudulently acquired from the plaintiff, the award includes an element of restitution — the return of the excess of what the plaintiff gave the defendant over the value of what the plaintiff received. To that extent the award of damages literally includes restitution." (Id. at p. 174, italics added.)
Plaintiffs point out that Vioxx stated the difference between the price paid and actual value received is a measure of restitution, not the exclusive measure. (Vioxx, supra, 180 Cal.App.4th at p. 131.) Plaintiffs cite Johns v. Bayer Corp. (S.D.Cal., Apr. 30, 2012, No. 09-cv-1935-AJB (DHB)) 2012 WL 1520030, which observes that neither Vioxx nor Cortez "suggest[s] that the difference in price paid and value received is the only proper measure of restitution." (Bayer, at p. *5, italics added.)
Plaintiffs submitted evidence that consumers spent $2.548 billion on Marlboro Lights during the class period, and Philip Morris received $1.333 billion of that amount after the deduction of franchise excise taxes. The figures were presented by plaintiffs' economics expert, Dr. Pindyck, but he did not suggest restitution in either of those amounts would be proper. Rather, he testified that based on the conjoint survey, the appropriate measure of restitution from an economics standpoint was $1.039 billion, which is 40.8 percent of the $2.548 billion in class expenditures, because that amount would "make the consumer whole." He explained the 40.8 percent "goes to the [health] attribute that [consumers] thought they were getting." Dr. Pindyck alternatively calculated restitution of $544 million, based on 40.8 percent of Philip Morris's revenue of $1.333 billion.
Further, during trial plaintiffs' counsel adopted the Vioxx measure of restitution. During his questioning of Dr. Steckel, the following exchange took place:
"Q: And basically you understand that in California ... under our restitution rules, we're only allowed to get the price paid minus the value that related to say the alleged deceit. Do you understand that?
"A. I do understand that.
"Q. Okay. So basically — maybe I said that wrong. It's price paid versus what the value that you actually received, right?
"A. Yes.
"Q. So the difference would be the ... 40.8 percent?
"A. Yes."
In the portion of closing argument devoted to restitution, plaintiffs' counsel focused exclusively on the conjoint survey.
In rebuttal, after Philip Morris's counsel pointed out the flaws in the survey, plaintiffs' counsel stated: "I think the [c]ourt has the authority, even
Plaintiffs' counsel, however, then backpedaled. The court asked him, "Is it all the money [Philip Morris] got, or just the money [it] got that's attributable to the health claims?" Counsel responded: "Well, I think ... it's the difference, Your Honor, yes. I think it's the difference between — as to what [Philip Morris] got in the health claims, I do think that, yes." (Italics added.) The court then asked, "How do I know what the health claims are worth?" Plaintiffs' counsel returned to the conjoint survey, arguing it established the difference between the price paid and the actual value received.
Given this scenario, plaintiffs cannot reasonably fault the court for applying the Vioxx measure of restitution. As the court noted during a hearing on its statement of decision, "I think [plaintiffs' counsel] conceded that during the trial. Even some of [plaintiffs'] witnesses did." Plaintiffs are less than forthcoming when they assert they "continued to argue for a broader measure of restitution based upon sales and profits, right up through [posttrial] motions." "An appellant has the duty to summarize the facts fairly in light of the judgment, and such duty `"grows with the complexity of the record."'" (Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607 [66 Cal.Rptr.3d 872].)
Section 17203 "operates only to return to a person those measureable amounts which are wrongfully taken by means of an unfair business practice. The intent of the section is to make whole, equitably, the victim of an unfair practice. While it may be that an order of restitution will also serve to deter future improper conduct, in the absence of a measurable loss the section does not allow the imposition of a monetary sanction merely to achieve this deterrent effect. Nor is the section intended as a punitive provision, though it may fortuitously have that sting when properly applied to restore a victim to wholeness." (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 339 [74 Cal.Rptr.2d 55], third & fourth italics added.)
In Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983 [112 Cal.Rptr.3d 607], this court reversed a restitution order that was unrelated to the amount of consumer losses. In Nelson, a car dealer added insurance premiums to the price of vehicles, which resulted in class members paying sales tax on the premiums. The sales tax charged on the premium increased the cost of the class representative's car by about $30, but "the trial court awarded the members of the ... class all the money they had paid for their vehicles as of the date of the judgment." (Id. at p. 1018.) We held "[t]his is not appropriate restitutionary relief under the UCL as it does not accomplish the statutory objective of restoring to the victims sums acquired through Pearson Ford's unfair practices." (Ibid., citing Korea Supply, supra, 29 Cal.4th at p. 1149.)
A full refund may be available in a UCL case when the plaintiffs prove the product had no value to them. For instance, in Ortega v. Natural Balance, Inc. (C.D.Cal. 2014) 300 F.R.D. 422, 430, the court certified a class action where the plaintiffs sought a full refund for a dietary supplement on the ground it falsely advertised aphrodisiac qualities and had no value apart from that
Several cases, relying on Vioxx, have indicated a full refund is unavailable under the UCL when the product had value to consumers notwithstanding the alleged deceptive advertising. For instance, In re POM Wonderful LLC (C.D.Cal., Mar. 25, 2014, No. ML 10-2199 DDP (RZx)) 2014 WL 1225184, p. *3, states: "Plaintiffs do not cite, nor is the court aware of, any authority for the proposition that a plaintiff seeking restitution may retain some unexpected boon, yet obtain the windfall of a full refund and profit from a restitutionary award. Nor can [p]laintiffs plausibly contend that they did not receive any value at all from [d]efendant's [juice] products. Because the Full Refund model makes no attempt to account for benefits conferred upon [p]laintiffs, it cannot accurately measure classwide damages."
In asserting a "trial court may award as restitution a full refund of the price paid, regardless of value received" (capitalization & boldface omitted), plaintiffs quote this broad language from Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442 [153 Cal.Rptr. 28, 591 P.2d 51] (Fletcher): "`To permit the [retention of even] a portion of the illicit profits, would impair the full impact of the deterrent force that is essential if adequate enforcement [of the law] is to be achieved.'" (Id. at p. 451, italics added.)
In Fletcher, a bank calculated "`per annum'" interest on consumer loans on the basis of a 360-day year, "resulting in a small increase in the annual percentage rate." (Fletcher, supra, 23 Cal.3d at p. 447.) The plaintiff commenced a purported class action, alleging the bank's practice was an unfair trade practice under section 17500, and he had no advance knowledge of the bank's practice. The action sought "restitution of the sums obtained through the use of this unfair business practice." (Fletcher, at p. 446.) The trial court granted the defendant's motion to dismiss the suit as a class action on the ground "`the knowledge of each borrower ... must be determined separately for each loan....'" (Ibid.) Our high court reversed, explaining the trial court's ruling was based on the erroneous ground that it lacked discretion to order restitution without individualized proof of lack of knowledge of absent class members. (Id. at pp. 449-450.)
While a full refund may have been available in Fletcher, the overcharging of interest did not confer any benefit on consumers. Fletcher confirms that "the trial court may order restitution to the plaintiff class in order to foreclose defendant's retention of any wrongful gains." (Fletcher, supra, 23 Cal.3d at p. 452, italics added.)
Plaintiffs also rely on Tobacco II, which cites Fletcher in support of its conclusion that the court erred in the instant action by decertifying the class on the ground Proposition 64 required each class member to show injury in fact and causation. (Tobacco II, supra, 46 Cal.4th at p. 320.) Tobacco II held that under the plain language of the amendments to the UCL (§§ 17203, 17204), and pursuant to voters' intent, Proposition 64's standing requirements apply only to the class representative, and not to absent class members. (Tobacco II, at pp. 314-320.)
Tobacco II emphasized the language in section 17203 that parties are entitled to restitution "`to restore to any person in interest any money or property, real or personal, which may have been acquired' (italics added) by means of the unfair practice...." (Tobacco II, supra, 46 Cal.4th at p. 320.)
Plaintiffs also cite this broad language from Kwikset, supra, 51 Cal.4th at page 328: "Simply stated: labels matter. The marketing industry is based on the premise that labels matter — that consumers will choose one product over another similar product based on its label and various tangible and intangible qualities they may come to associate with a particular source."
Kwikset, however, is another standing case. It does not suggest restitution is available for the sole purpose of deterrence. In Kwikset, the plaintiff filed a representative action under the UCL against the manufacturer of locksets labeled "`Made in U.S.A.'" to "challenge the labels' veracity." (Kwikset, supra, 51 Cal.4th at p. 316.) The trial court granted injunctive relief, but denied restitution because an award "`would likely be very expensive to administer, and the balance of equities weighs heavily against such a program' where the violations had ceased and `the misrepresentations, even to those for whom the "Made in USA" designation is an extremely important consideration, were not so deceptive or false as to warrant a return and/or refund program or other restitutionary relief to those who have been using their locksets without other complaint.'" (Id. at p. 318, fn. omitted.)
Kwikset held that "plaintiffs who can truthfully allege they were deceived by a product's label into spending money to purchase the product, and would not have purchased it otherwise, have `lost money or property' within the meaning of Proposition 64 and have standing to sue." (Kwikset, supra, 51 Cal.4th at p. 317.) Kwikset explained "the standards for establishing standing under section 17204 and eligibility for restitution under section 17203 are wholly distinct.... That a party may ultimately be unable to prove a right to damages (or, here, restitution) does not demonstrate that it lacks standing to argue for its entitlement to them." (Id. at pp. 335-336, citation omitted.)
Plaintiffs' reliance on People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508 [128 Cal.Rptr.2d 463] is similarly misplaced. Fremont rejected the argument that "across-the-board restitution may not be ordered without proof that all consumers were deprived of money or property as a result of an unfair business practice." (Id. at p. 531, italics added.) Fremont merely recognized that individualized proof of harm is not required. It does not indicate restitution may be ordered absent proof that any consumer was harmed. There must, of course, be some evidence of loss to raise an inference of classwide harm. (Id. at pp. 531-532.) Fremont acknowledged that the "trial court may order restitution of money `which may have been acquired by means' that are violative of the UCL." (Id. at p. 532, italics added; see Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 633 [105 Cal.Rptr.3d 795] [class certification improper when "with respect to ... a majority of class members, there is no doubt Pfizer did not obtain any money by means of the alleged UCL violation"].)
We also reject plaintiffs' assertion restitution may be ordered solely for the purpose of deterrence, because in a certified class action a court may order the "disgorgement" of profits into a fluid recovery fund.
"The California Supreme Court has held that, while restitutionary disgorgement may be an available remedy under the UCL, nonrestitutionary disgorgement is not available in a UCL individual action or in a UCL representative action...." (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 460 [30 Cal.Rptr.3d 210] (Madrid), citing Cortez, supra, 23 Cal.4th at pp. 168-172; Korea Supply, supra, 29 Cal.4th at pp. 1145, 1152.) Korea Supply clarified that "[t]his court has never approved of nonrestitutionay disgorgement of profits as a remedy under the UCL," and "[w]hile prior cases discussing the UCL may have characterized some of the relief available as `disgorgement,' we were referring to the restitutionary form of disgorgement, and not to the nonrestitutionary type sought here by plaintiff." (Korea Supply, at p. 1148.)
Madrid held that nonrestitutionary disgorgement is unavailable in a certified class action under the UCL, explaining: "`[T]he UCL is a substantive statute and the class action statute is a procedural device for collectively litigating substantive claims.' [Citation.] `Fluid recovery in class actions ... is merely a method of paying out damages after they have been awarded.' [Citation.] Thus, the use of the class action vehicle to litigate a UCL claim does not expand the substantive remedies available, and the availability of fluid recovery in a UCL class action (which we presume for purposes of this appeal) says nothing about the availability of nonrestitutionary disgorgement of profits." (Madrid, supra, 130 Cal.App.4th at p. 461; see Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997 [36 Cal.Rptr.3d 592] (Feitelberg) [court has no statutory or inherent authority to order nonrestitutionary disgorgement in certified class action under UCL].)
Plaintiffs submit that Madrid and Feitelberg are distinguishable because the plaintiffs there "never had any interest in the money they sought to
Plaintiffs' reliance on this court's opinion in Juarez v. Arcadia Financial, Ltd. (2007) 152 Cal.App.4th 889 [61 Cal.Rptr.3d 382] (Juarez) is also misplaced. Juarez was a class action that alleged the defendant violated the UCL by violating the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.). (Jurarez, at p. 894.) We reversed a summary judgment for the defendant, concluding it did not give sufficient notice to defaulting buyers of their rights to reinstate their contracts. (Id. at pp. 901, 912.)
We also held the court abused its discretion by denying the plaintiffs' motion to compel the defendant "to provide information about any profits it made from use of the money it received from plaintiffs for `invalid deficiency claims.'" (Juarez, supra, 152 Cal.App.4th at p. 912.) Juarez clarified: "We do not intend to suggest that the plaintiff class ultimately will be able to establish the existence of a vested interest in any profits Arcadia may have received as a result of collecting money pursuant to an unlawful business practice. Rather, we merely recognize that in the context of this discovery dispute, it is not clear that the plaintiffs will not be able to establish that the disgorgement of certain profits made as a result of its unlawful practice falls under the rubric of `restitutionary disgorgement.'" (Id. at p. 917, fn. 16, second italics added.) Plaintiffs seize on broad language in Juarez, such as "the concept of restitution is broader than simply the return of money that was once in the possession of the person from whom it was taken," and "`[o]rdinarily, the measure of restitution is the amount of [unjust] enrichment received'" (id. at p. 915), but it is unhelpful when considered in context.
We conclude that as a matter of law, restitution is not available here for the exclusive purpose of deterrence. Under plaintiffs' theory, a full refund would
While a full refund may be proper when a product confers no benefit on consumers, such is not the scenario here. Plaintiffs do not dispute the court's finding that they obtained value from Marlboro Lights apart from the deceptive advertising. Indeed, it appears inherently implausible to show a class of smokers received no value from a particular type of cigarette. Under the circumstances, the Vioxx, supra, 180 Cal.App.4th at page 131, measure of restitution was proper, and as plaintiffs did not establish any price/value differential the court lacked discretion to award restitution.
In Philip Morris I, Judge Kessler permanently enjoined Philip Morris and other tobacco companies from "conveying any express or implied health message or health descriptor for any cigarette brand either in the brand name or on any packaging, advertising or other promotional, informational or other material." (Philip Morris I, supra, 449 F.Supp.2d at p. 938.) Judge Kessler specified that "[f]orbidden health descriptors include the words `low tar,' `light,' `ultra light,' `mild,' `natural,' and any other words which reasonably could be expected to result in a consumer believing that smoking the cigarette brand using that descriptor may result in a lower risk of disease or be less hazardous to health than smoking other brands of cigarettes." (Ibid.) Congress has essentially codified the injunction in title 21 United States Code section 387k(b)(2)(A)(i) and (ii), effective June 22, 2009. When federal law compels a defendant in a state court action "to stop the offending conduct," there is no entitlement to injunctive relief. (Feitelberg, supra, 134 Cal.App.4th at p. 1022.)
Plaintiffs contend the offending conduct "continues to this day," since Philip Morris still sells the same cigarettes, now named Marlboro Gold, in "lightly colored packaging," which ostensibly misleads consumers into believing they are less dangerous than Marlboro Reds or other cigarettes in dark-colored packs.
The operative complaint, however, does not allege any pack color issue as a violation of the UCL. Further, the court made no such finding, and plaintiffs assign no error in that regard. We cannot say the court exceeded the bounds of reason by not enjoining a practice it did not find deceptive.
Further, plaintiffs do not fairly portray the evidence on the matter. Plaintiffs cite the opinion of their expert on "[consumer] perceptions," Michael Cummings, Ph.D., that "consumers, based on the research we've done, still perceive just by the colors alone the product's being lower tar and nicotine." He relied on a 2009 survey of shoppers at a mall in Buffalo, New York, and a 2008 Internet survey. He conceded, however, that beginning in 2011 "and continuing to today," all Marlboro Gold packs contain a "tear tape" that warns, "Nothing about this cigarette packaging or color should be interpreted to mean safer." (Italics added.) He also conceded he had no evidence on consumer perceptions pertaining to pack color after the tear tapes were
The court determined plaintiffs' request for declaratory relief was untimely. The operative complaint prayed for restitution and injunctive relief, but not declaratory relief. Plaintiffs point out that a "complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties" (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947 [148 Cal.Rptr. 379, 582 P.2d 970]), but the issue here does not pertain to the adequacy of the pleading. Plaintiffs do not dispute Philip Morris's representation that they did not request declaratory relief during trial and first raised the issue in their written objections to the court's statement of decision. "Because the argument was not litigated at trial, ... the trial court was under no obligation to address it." (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 751 [115 Cal.Rptr.3d 611].) The court had no sua sponte duty to raise declaratory relief on plaintiffs' behalf.
Plaintiffs sought a judicial declaration that Philip Morris's "conduct and advertising pertaining to Marlboro Lights, because of the `Lights' and `Lowered Tar and Nicotine' descriptors, was false, misleading, deceptive and violative of the UCL." The use of those descriptors was a completed wrong, and there is no likelihood of future violations. The parties need no judicial guidance to conform their conduct to the law or avoid future litigation.
Further, Philip Morris's denial at trial that it engaged in deceptive advertising does not create an actual, present controversy for purposes of declaratory relief. "The requirement that plaintiffs seeking declaratory relief allege `the existence of an actual, present controversy' [citation] would be illusory if a plaintiff could meet it simply by pointing to the very lawsuit in which he or she seeks that relief. Obviously, the requirement cannot be met in such a bootstrapping manner; `a request for declaratory relief will not create a cause of action that otherwise does not exist.'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [124 Cal.Rptr.2d 519, 52 P.3d 695].) As a matter of law, the court's ruling is correct.
Additionally, plaintiffs challenge the court's award of $764,552.73 in costs to Philip Morris from class representative Watton. Plaintiffs do not dispute the amount, but contend Philip Morris was not the prevailing party.
"Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., § 1032, subd. (b).) "`Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the `prevailing party' shall be as
In plaintiffs' view, however, this is a "`situation other than as specified'" within the meaning of Code of Civil Procedure section 1032, subdivision (a)(4), because the court determined Philip Morris was guilty of deceptive advertising under the UCL. They cite Pirkig v. Dennis (1989) 215 Cal.App.3d 1560, 1566 [264 Cal.Rptr. 494] (Pirkig), disapproved on another point in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1330 [104 Cal.Rptr.3d 219, 223 P.3d 77], for the proposition that "[p]revailing on the issue of liability may be deemed sufficient in itself to determine a prevailing party under the broad definition of [Code of Civil Procedure] section 1032."
The prevailing party in Pirkig did not fall within one of the four situations enumerated in Code of Civil Procedure section 1032, subdivision (a)(4). The issue there was whether the trial court had discretion to award costs to a plaintiff who did not obtain a net monetary recovery. (Pirkig, supra, 215 Cal.App.3d at p. 1566.)
Plaintiffs also cite Hsu v. Abbara (1995) 9 Cal.4th 863, 877 [39 Cal.Rptr.2d 824, 891 P.2d 804] for the notion that "in determining litigation success, courts should respect substance rather than form, and to this extent should be guided by `equitable considerations.'" Hsu, however, concerned Civil Code section 1717, which applies to contractual attorney fees. (Hsu, at p. 877.)
Additionally, plaintiffs provide this quote from Miller v. American Honda Motor Co. (1986) 184 Cal.App.3d 1014 [229 Cal.Rptr. 523]: "An award of costs in an equitable action is beyond the pale of subdivisions (a) and (b) of [Code of Civil Procedure] section 1032." (Id. at p. 1019.) Plaintiffs ignore that Miller refers to a former version of Code of Civil Procedure section 1032, under which "[c]osts in equitable actions [were] instead governed by the discretionary provisions of subdivision (c)." (Miller, at pp. 1019-1020.)
Lastly, plaintiffs contend the court abused its discretion by denying their motion for expenses in establishing matters Philip Morris failed to admit in responding to requests for admissions. "If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (Code Civ. Proc., § 2033.420, subd. (a).)
The court denied discovery sanctions on the ground plaintiffs "failed to provide any specific accounting of costs or fees incurred" as a result of Philip Morris's failure to make admissions. Instead, plaintiffs requested "sanctions equal to the amount of costs that it contends [Philip Morris] may be entitled to." The court cited Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 737 [34 Cal.Rptr.2d 283], which reversed a sanctions award for the failure to make admissions when counsel "failed to set out either his hourly fee or any accounting of time spent on the case." The court also noted plaintiffs "will have a difficult time parsing out what evidence presented at trial could only
Plaintiffs ignore their failure to provide an accounting. They make no effort to show any compliance with Code of Civil Procedure section 2033.420. Thus, they have waived appellate review of the matter. "In civil appeals, the appellate courts are not required to perform an unassisted study of the record or a review of the law relevant to a party's contentions on appeal. [Citations.] Instead, a party's failure to perform its duty to provide argument, citations to the record, and legal authority in support of a contention may be treated as a waiver of the issue." (Bank of New York Mellon v. Preciado (2013) 224 Cal.App.4th Supp. 1, 6 [169 Cal.Rptr.3d 653]; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [124 Cal.Rptr.3d 78].)
Phillip Morris has filed a protective cross-appeal on issues of class certification. It agrees that if we affirm the judgment, its appeal should be dismissed as moot.
The judgment is affirmed. Philip Morris's cross-appeal is dismissed. Philip Morris is entitled to costs on appeal.
McDonald, J., and O'Rourke, J., concurred.