Fear Not Law Articles: Bivens v. Sanford

Bivens v

Bivens v. Sanford

Filed 1/10/07 Bivens v. Sanford CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WEBSTER BIVENS,

Plaintiff and Appellant,

SANFORD L.P. et al.,

Defendants and Respondents.

B184864

(Los Angeles County

Super. Ct. No. SC 075348)

APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J. Goodman, Judge. Reversed.

The McMillan Law Firm, Scott A. McMillan and Bryan C. Rho, for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Gregory A. Long, Amy Harrell and Chad J. Levy for Defendants and Respondents Sanford L.P., Newell Operating Company, and Costco Wholesale Corporation.

_______________________________

Plaintiff Webster Bivens (Bivens) appeals the judgment and cost award in his action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200) and the False Advertising Law (FAL) (Bus. & Prof. Code, § 17500).[1] The trial court granted defendants' motion for judgment on the pleadings because the passage of Proposition 64 on November 2, 2004, while the case was pending, deprived plaintiff of standing to bring an action based upon alleged deceptive packaging of Sharpie pens. On appeal, plaintiff contends that the trial court abused its discretion in refusing to permit amendment to substitute a plaintiff with standing, and that in light of the retroactive application of Proposition 64's changes, any award of costs was a violation of due process and constituted a bill of attainder. We reverse, finding the trial court erred in refusing to permit amendment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 8, 2003, Bivens commenced this action for declaratory and equitable relief under the UCL, the FAL, and the Fair Labeling Act (Bus. & Prof. Code, § 12601). Bivens alleged that he was bringing the action on behalf of the general public pursuant to sections 17204 and 17535. Plaintiff's operative pleading, the Third Amended Complaint filed July 22, 2004, alleged two causes of action under the UCL and FAL, contending that that packages of â€

Description	Plaintiff (Bivens) appeals the judgment and cost award in his action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, S 17200) and the False Advertising Law (FAL) (Bus. & Prof. Code, S 17500). The trial court granted defendants' motion for judgment on the pleadings because the passage of Proposition 64 on November 2, 2004, while the case was pending, deprived plaintiff of standing to bring an action based upon alleged deceptive packaging of Sharpie pens. On appeal, plaintiff contends that the trial court abused its discretion in refusing to permit amendment to substitute a plaintiff with standing, and that in light of the retroactive application of Proposition 64's changes, any award of costs was a violation of due process and constituted a bill of attainder. Court reverse, finding the trial court erred in refusing to permit amendment.
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