Bivens v. Banner Bedding

Filed 2/15/07  Bivens v. Banner Bedding CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment and orders of the Superior Court of San Diego County, Joan M. Lewis, Judge.  Affirmed.

            Plaintiff Webster Bivens appeals the judgment and related posttrial orders that were entered after the dismissal of his complaint for declaratory and equitable relief, which had alleged causes of action for false advertising and unfair business practices under the Unfair Competition Law (Bus. & Prof. Code, §  17200 et seq., the UCL; all statutory references are to the Bus. & Prof. Code unless otherwise specified.)  The trial court ruled that he lacked standing as an unaffected plaintiff to sue under the provisions of the UCL and the False Advertising Act (§  17500 et seq.), and had failed to timely amend his complaint to substitute a new plaintiff.  Additionally, the trial court denied his new trial motion and entered judgment finding him liable for costs of suit, as well as an order denying him attorney fees.

            Bivens acknowledges that under recent Supreme Court case law interpreting Proposition 64 (Prop. 64), he cannot maintain this action under the UCL and the False Advertising Act.  (Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 232-233 (CDR); Branick v. Downey Savings and Loan Association (2006) 39 Cal.4th 235, 239 (Branick).)  However, he contends the trial court abused its discretion in denying him leave to amend his complaint to meet the new standing requirements, and that the award of costs against him amounts to an unconstitutional bill of attainder.  He also objects that the statutes implementing Prop. 64 contain an unconstitutionally vague reference to Code of Civil Procedure section 382, referring to compliance with class action procedures.

            We agree that Bivens lacks standing to pursue this action as pled.  We also find the trial court did not abuse its discretion in denying Bivens's request to amend his complaint to try to satisfy the requirements of Prop. 64, because he did not show the necessary diligence for establishing a right to discovery during the relevant time periods.  Additionally, his motions for reconsideration and for new trial were not well taken.  The judgment of dismissal and the posttrial orders awarding costs are well supported in the record and we affirm.

FACTUAL AND PROCEDURAL HISTORY

A

Complaint

            We will only briefly describe the pleadings, as the issues on appeal regarding dismissal and costs pertain chiefly to issues that arose after the demurrers were sustained with leave to amend.  Bivens's complaint, filed before Prop. 64 became effective, describes him as a senior citizen residing in San Diego, entitled to calendar preference, who is " unaffected by [defendant's] conduct" and who is bringing this action under the UCL " on behalf of the general public pursuant to . . . §§  17204 and 17535."  

            Bivens (or plaintiff) based his unfair competition and false advertising claims on advertising by Banner for mattresses that listed the prices of the larger sizes of mattresses for a set (mattress and box spring), but gave only a single piece price for the smaller sizes of mattresses.  In smaller print, the advertisements also stated, " Twin and full sold in sets only."   Bivens accordingly alleged that Banner's failure to display the price of the minimum multiple unit in which the goods were offered, as prominently as the unit price, was likely to mislead consumers, and he attached copies of the advertisements to the complaint as exhibits.  Further, he alleged Banner " refused to sell to their retail customers any single mattresses referred to herein at the unit prices stated in the advertising wherein special prices were offered for a mattress set."

            Bivens sought declaratory and injunctive relief to prevent such use of unlawful advertising techniques, which could provide Banner with an unfair competitive advantage over law-abiding competitors.  Bivens also sought an accounting of amounts received due to unlawful advertising and restitution to any identifiable customers who had paid more than " the advertised prices for less than a complete mattress set."   (§§  17504, 17500, 17200.)  Further, attorney fees under the " substantial benefit doctrine" and costs were requested.  (Code Civ. Proc., §  1021.5.)  The complaint does not contain any class action allegations.

Motions and Rulings

            Banner's original demurrer to Bivens's complaint was overruled, but a second demurrer was allowed to be filed based on the recent passage of Prop. 64.  At the February 18, 2005 hearing, the court took the matter under submission.  On March 8, 2005, an order was issued to sustain the demurrer with 30 days' leave to amend to substitute a new plaintiff who had standing to preserve the claims of the represented group, and the scheduled case management conference was continued.  This order was served on the parties by the court clerk the next day.

            After the expiration of the time allowed to amend, on April 18, 2005, Bivens sought a court order shortening time to serve discovery on Banner, seeking customer lists and other confidential information to assist him in identifying a new plaintiff.  After an ex parte hearing, the matter was continued for briefing on whether the proper notice had been given by the court clerk or defense counsel of the order sustaining the demurrer with leave to amend.  The court ruled that it would determine this issue, i.e., whether the 30-day period for amendment had expired before the discovery requests were made, at the planned May 20, 2005 order to show cause hearing, that was scheduled to resolve whether the case should be dismissed for lack of amendment.

            On May 20, 2005, the court conducted the order to show cause hearing and ruled that due to the confusion in the service of the notice of ruling on the demurrer, defendant should serve a new notice of ruling, which it did that day, and a 30-day amendment period would begin to run.  (Code Civ. Proc., §§  472b, 664.5, subd. (d).)  The case management conference was continued until July 22, 2005.  The court also ruled that plaintiff could not pursue any discovery until his complaint was amended, in order to provide an operative complaint and a proper plaintiff.

            Bivens brought a motion for reconsideration, arguing that he should be entitled to conduct precertification discovery, since the dismissal had not yet been finalized.  He claimed a right to obtain customer information from Banner in order to find a proper class representative, who had made a consumer complaint to defendant.  Banner opposed the motion, asserting privacy rights of Banner and its customers, and objecting that the claims as pled were not currently viable.  On July 15, 2005, the court denied the motion for lack of new facts or law, and for lack of an existing properly named class representative who had standing to prosecute the claims asserted in the complaint.

            Banner then sought dismissal of the complaint ex parte.  Dismissal was granted July 28, 2005.  Plaintiff filed a new trial motion, arguing that awarding costs against him in connection with this dismissal would be impermissible, as amounting to a bill of attainder that took his property punitively without trial.  He also contended that the judgment for costs represented a denial of due process, and Prop. 64 was unconstitutionally vague insofar as it incorporated the provisions of Code of Civil Procedure section  382.

            After continuing the new trial hearing once, the court denied the motion on September 23, 2005 ruling that Prop. 64 did not constitute a bill of attainder, nor did its application violate due process rights or create unconstitutional vagueness.  Notice was given and Bivens appealed.  Banner filed its cost bill, seeking $2,888.11.

            Bivens brought a motion to tax costs and sought an award of attorney fees on the grounds that he had provided some benefit to the public, because Banner had changed some of its advertising.  (Code Civ. Proc., §  1021.5.)  The trial court granted the motion to tax in part, reducing the costs award to $442.40, but denied the motion for attorney fees.  Bivens appeals that order as well.

DISCUSSION

I

ISSUES PRESENTED

            In CDR, supra, 39 Cal.4th 223, 232-233, the Supreme Court held that the effect of Prop. 64 was to establish that an individual who brings an action under the UCL must meet the revised standing requirements of section 17204, that is, an individual must have " suffered injury in fact and [have] lost money or property as a result of such unfair competition."   Prop. 64 also imposed a requirement that such a plaintiff must comply with the class action requirements of Code of Civil Procedure section 382.  (§  17203 [" Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, .  .  .  or city prosecutor in this state." ].)  These changes in standing rules also apply to the false advertising law, §  17500 et seq.  (CDR, supra, 39 Cal.4th at p. 229, fn. 2; §  17535.)

            In reaching its conclusions in the CDR case, the court read this amended section 17203 as withdrawing " the standing of persons who have not been harmed to represent those who have."   (CDR, supra, 39 Cal.4th at p. 232.)  The court explained, " For a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed.  '[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.'  [Citation.]"   (Id. at pp. 232-233.)  The Supreme Court did not utilize the statutory repeal rule in reaching its conclusions.  (Ibid., fn. 3; see, e.g., Younger v. Superior Court (1978) 21 Cal.3d 102, 109 [" an action wholly dependent on statute abates if the statute is repealed without a saving clause before the judgment is final" ].)

            In Branick, supra, 39 Cal.4th 235, 239-244, the court decided that under Prop. 64, " the ordinary rules governing the amendment of complaints and their relation back" should still apply, such that in a proper case, a trial court may permit a plaintiff to amend a complaint to satisfy Prop. 64's changed standing requirements.  The court could not decide that question in that case because the record did not contain any pending or decided motion for leave to amend, that would have identified any person who might be named as a plaintiff, or would have described the claims such a person might assert.  The court said, " On remand, should plaintiffs in fact file a motion to amend, the superior court should decide the motion by applying the established rules governing leave to amend (Code Civ. Proc., §  473) and the relation back of amended complaints [citation.]"   (Branick, supra, at p. 239.)

            Due to this recent Supreme Court authority resolving the Prop. 64 retroactivity issues, our review of the judgment of dismissal and the posttrial orders will focus only on the issues that arose during the hearings after the underlying demurrer rulings that led to the dismissal, and not the merits of the demurrers regarding retroactivity.  (CDR, supra, 39 Cal.4th 223; Branick, supra, 39 Cal.4th 235.)  We note that in Bivens's reply brief, he seems to concede that the issues now properly framed deal only with the potential vagueness of Prop. 64, its potential effect as a bill of attainder that might impose costs in the nature of punishment, and the questions surrounding the trial court's exercise of discretion in denying leave to amend to substitute a new plaintiff.  However, he nevertheless seems to pursue arguments about the validity of his original complaint, regardless of the now-resolved standing issues, by claiming the trial court's initial demurrer ruling previously acknowledged he had stated causes of action under sections 17504, 17500 and 17200, based on the advertisements attached as exhibits to the complaint.  In light of the procedural development of this case and the relevant case law, we conclude those arguments on the merits of these pleadings are not properly before this court, because other trial court rulings superseded the earlier rulings, and the judgment does not depend on the demurrer rulings.  Instead, we address the amendment issues, including his preclass certification discovery requests and the effect of class action requirements, and then the propriety of the costs order and judgment.

II

PROPER PARTIES/PRECLASS CERTIFICATION DISCOVERY REQUESTS

A

General and Specific Contentions

            Bivens makes several related claims attacking the dismissal that the court granted due to his lack of standing as a proper plaintiff.  He first contends that Prop. 64 contains unconstitutionally vague language to the extent that it requires compliance with the class action procedures of Code of Civil Procedure section 382.  He next contends the trial court abused its discretion in not allowing him further opportunities to seek to amend the complaint, by pursuing discovery to identify a substitute plaintiff.

            As a threshold matter, we briefly address Bivens's general contention that the class certification requirements of Code of Civil Procedure section 382, as incorporated into the standing requirement of the UCL and false advertising law, create unconstitutional vagueness.  Several factors lead us to conclude no such defect exists.  First, the Supreme Court in CDR, supra, 39 Cal.4th 223 and Branick, supra, 39 Cal.4th 235, referred to this requirement specifically in the context of its standing discussion, without detecting any serious uncertainties in applying it.  The change in the law that Prop. 64 represents was foreshadowed in Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1290, footnote 3, in which the court described the difference between a representative action under section 17204 and a class action as follows:  "   '[A] representative action under the UCL is different from a class action.  In a representative action under Business and Professions Code section 17204, a private plaintiff is permitted to pursue the injunctive and restitution relief provided by the UCL on behalf of the public without showing that he was directly harmed by the defendant's business practices.  [Citation.]  In a class action a plaintiff sues on his own behalf as well as on behalf of members of the class and the class must be certified under the provisions of Code of Civil Procedure section 382.  [Citation.]'  "   The distinction outlined above no longer exists and the terms of Prop. 64 specifically and logically incorporated the Code of Civil Procedure section 382 requirements into this closely related body of law.  (§§  17203, 17535.)

            Code of Civil Procedure section 382 authorizes class suits in California " when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . ."  This class action statute is a procedural device for collectively litigating substantive claims.  (Corbett v. Superior Court (2002) 101 Cal.App.4th 649, 670.)  However, " class action status does not alter the parties' underlying substantive rights.  [Citations.]  If a specific form of relief is foreclosed to claimants as individuals, it remains unavailable to them even if they congregate into a class."  (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1018.)

            Currently, the complaint does not contain any allegations necessary under Code of Civil Procedure section 382 for Bivens to represent a class of plaintiffs, which is consistent with his admission in the complaint that he is an unaffected plaintiff.  (See §§  17203, 17535.)  Bivens claims he possibly could have discovered an appropriate class representative and submitted proposed amendments to the pleadings if he had been allowed to pursue discovery, as will be discussed below.  In the abstract, however, he also argues that the mention of Code of Civil Procedure section 382 in section 17203 is not enough to put litigants on notice of the proper procedures they must follow to comply with these standards for establishing the standing of representative plaintiffs.  He is incorrect, because extensive and well-developed procedures exist for ascertaining if a representative plaintiff has the appropriate standing to support a class action.  "   'The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.'  "  (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104.)  " The 'community of interest' requirement embodies three factors:  (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class."  (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).)

            Bivens cannot demonstrate any lack of awareness of such well-established procedures that would give him any right to relief.  He has raised no justification for setting aside the judgment in this case based on any such alleged vagueness in the UCL that would preclude the application of Code of Civil Procedure section 382 requirements in this factual and procedural context.

Plaintiff's Individual Efforts to Amend the Complaint and Pursue Discovery

            In Branick, supra, 39 Cal.4th 235, 242, the following guidelines were provided for addressing the propriety of amendments to correct standing defects.  " Having thus concluded that Proposition 64 does not expressly or implicitly forbid the amendment of complaints to substitute new plaintiffs, the question remains whether plaintiffs in this case may amend.  Code of Civil Procedure section 473 states the governing rule:  'The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party  . . . .'  [Citation.]  'Leave to amend a complaint is thus entrusted to the sound discretion of the trial court.'  " . . . The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.  More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court.  Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court's order will yet not be reversed unless, as a matter of law, it is not supported by the record."   '  [Citation.]"  (Branick, supra, 39 Cal.4th at p. 242.)

            The applicable rules require that " the plaintiff proposed to be substituted may not 'state facts which give rise to a wholly distinct and different legal obligation against the defendant.'  [Citation.]  . . .  [T]he defendant [may] not be required to answer a wholly different legal liability or obligation from that originally stated."  (Branick, supra, 39 Cal.4that pp. 243-244.)  Appropriate considerations on amendment thus include " the identity of any person plaintiffs might attempt to substitute and the nature of the claims any substituted plaintiff might assert."   (Id. at pp. 242-243.)  This can be a complex issue, both factually and legally.  (Id. at pp. 243-244.)

            Discovery on class action issues will normally be allowed when a class action certification question is before the court, to determine if the necessary community of interest is present.  (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 232-233.)  Due process considerations require that the parties have an opportunity to brief the issues and present evidence on whether an action may proceed as a class action.  (Ibid.)  The plaintiffs must demonstrate the necessary community of interest, including:  " (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class."  (Sav-On, supra, 34 Cal.4th 319, 326.)

            Ordinarily, class certification issues are litigated at special pretrial proceedings created for that purpose, and are not usually resolved in the discovery context.  (Union Mutual Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 12.)  For example, an unqualified plaintiff may pursue discovery to obtain information to allow it to amend its complaint to reestablish standing by ascertaining a suitable class representative.  (Ibid.; Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 797, 798; see Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436, fn. 3.)

            In general, First Amendment free speech protections apply to a party's precertification communications with potential class members.  (Parris v. Superior Court (2003) 109 Cal.App.4th 285, 292-300.)  In Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772, 779, the court outlined the parameters for review of such discovery efforts:  "   '[A]ppellate review of discovery rulings is governed by the abuse of discretion standard.  [Citation.]'  [Citation.]  . . .  '[S]hould the trial court conclude that plaintiff cannot suitably represent the class, it should afford [him] " the opportunity to amend [his] complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative."  [Citation.]'  [Citation.]  . . .  [¶] To exercise its discretion, 'the trial court must . . . expressly identify any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh the danger of such abuses against the rights of the parties under the circumstances.'  [Citation.]"   (Ibid.)

            An example of a case in which precertification discovery was allowed to identify substitute plaintiffs is Foundation for Taxpayer and Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 134 (Nextel).  There, a plaintiff in a UCL action lost standing through the operation of Prop. 64, and sought leave to amend in order to add plaintiffs " who meet the newly imposed standing requirements of [the UCL]."  (Ibid.)  In preparation for that request, the plaintiff had deposed such a person, determined that he met the new standing requirements, and had filed an ex parte application for leave to file an amended complaint to add that person as a plaintiff.  When the trial court denied such leave, that order was set aside on appeal, since the principles set forth in Branick, supra, 39 Cal.4th 235 supported allowing amendment in that procedural context.  (Nextel, supra, at p. 134.)  Specifically, that party had made an adequate showing based on evidence that the new plaintiff could establish standing under the modified UCL, and the existing complaint already sufficiently set forth the major elements and nature of a class action, " e.g., the existence of predominant common issues of law or fact."   (Id. at p. 137.)

            Guided by these considerations, we turn to the record to assess the trial court's exercise of discretion in dismissing this case.  Bivens had two major problems throughout these proceedings:  an inability to demonstrate a potential for amending his substantive allegations under the UCL, and an inability to identify a substitute plaintiff.  At the February  18, 2005 demurrer hearing, the matter was taken under submission.  As of March 8, 2005, when the order was issued to sustain the demurrer with 30 days' leave to amend to substitute a new plaintiff with standing to preserve the claims of the represented group, Bivens was on notice that he had the responsibility to identify such a person within a given time period.  After that hearing and until April 18, nothing apparently happened until Bivens sought an order shortening time to obtain discovery responses to seek confidential customer information.  Banner opposed this as interfering with its business good will.  Some confusion arose about whether the notice of ruling had been properly given of the March 8 demurrer ruling, but there is no dispute that plaintiff had actual notice of it, since he was present at the February  18 hearing.  The case management conference was continued until July 22, 2005, but plaintiff was told he could not pursue any such discovery until the complaint was amended, such that there would be an operative complaint and a proper plaintiff.

            At the July 15, 2005 hearing on his motion for reconsideration, Bivens continued to argue that he should be entitled to conduct preclass certification discovery, since the dismissal had not yet been finalized, but he did not explain why he had not investigated further or how he would add the class certification allegations to the existing complaint, in order to bring himself within that procedural context.  (Code Civ. Proc., §  382.)  In fact, during none of these events did Bivens ever show any outside efforts, such as advertising or investigation, that would have allowed him to find a proper class representative, without obtaining confidential customer information from Banner.  Even if he had done so, he would still have had to resolve in a timely manner whether the necessary community of interest was present among his fellow customers, such that they would have had claims or defenses typical of the class and/or would have been interested in representing the class.  Even after the court was presented with and denied the reconsideration motion, plaintiff still brought forth no showing of diligence about how he proposed to amend the complaint or whether he was clearly unable to find a replacement plaintiff without the assistance of defendant. 

            Moreover, it is an unresolved issue whether every member of a proposed class must have suffered injury in fact, or whether the class representative alone may show enough injury in fact to satisfy standing requirements.  The Supreme Court currently has this issue on review, in both In re Tobacco II Cases (2006) 142 Cal.App.4th 891, review granted November 1, 2006, S147345, and Pfizer Inc. v. Superior Court (2006) 141 Cal.App.4th 290, review granted November 1, 2006, S145775.  Also, the Supreme Court will be considering whether every member of the class must have actually relied on any misrepresentations of a product made by the manufacturer, in order to recover in a class action.  (Ibid.)  Bivens has not addressed whether he can meet such pleading standards, in terms of finding a suitable class representative through investigation.

            After dismissal was granted July 28, 2005, Bivens turned his focus to reducing his costs obligation and seeking an award of attorney fees.  In conclusion, Bivens has never shown any effort toward making significant attempts to solve his own problem, rather than relying on defendant to do it for him, which it was not required to do.  We are unable to find the trial court abused its discretion by dismissing the complaint, since no realistic attempts were ever made by plaintiff over many months to locate and then substitute in a new real party in interest, who had sufficient injury in fact to satisfy the new standing requirements.

III

COSTS/BILL OF ATTAINDER ARGUMENTS

            Bivens contends that the judgment awarding costs against him, following the implementation of Prop. 64, amounted to a bill of attainder that took his property without adequate trial proceedings.  He claims that the legislative history of the initiative process demonstrates that consumer plaintiffs' attorneys and uninjured plaintiffs were classes singled out for particularly harsh treatment and potential deprivation of property in this manner.

            " A bill of attainder is a legislative act that inflicts punishment without a judicial trial.  Both Constitutions prohibit this kind of statute.  (U.S. Const., art. I, §  9, cl. 3, art. I, §  10; Cal. Const., art. I, §9 [citations].)"   (7 Witkin, Summary of Cal. Law (10th ed. 2005) § 205, p. 343.)  In Legislature v. Eu (1991) 54 Cal.3d 492, 526 (Eu), a case upholding legislative term limits imposed by initiative, the court applied a three-part test for examining arguments based on the bill of attainder prohibition, as explained in Nixon v. Administrator of General Services (1977)433 U.S. 425, 475-478 (Nixon):

" First, an 'historical' test has been used to determine whether the subject legislation imposes a kind of punishment traditionally deemed prohibited by the federal Constitution.  [Citation.]  Second, the courts have used a 'functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.  [Citations.]'  [Citation.]  Finally, the courts have used a 'motivational' test, 'inquiring whether the legislative record evinces a congressional intent to punish.  [Citations.]'  [Citation.]"   (Eu, supra, 54 Cal.3d at pp. 525-527.)

            To examine the first portion of this test, clearly, reimbursement of litigation costs to a prevailing party, from a losing one, does not amount to the kind of confiscation of property that would be considered punishment under the federal Constitution.  In Nixon, supra, 433 U.S. 425, 473-474, examples are given of historical punishments constituting bills of attainder, that were directed toward named individuals, imprisoning or banishing them, or preventing designated individuals or groups from participating in certain vocations.  Under that test, liability for statutory litigation costs of a reasonable nature does not amount to a punitive confiscation of property.

            With regard to the second portion of the test, Witkin points out that " statutory penalties imposed for a proper public purpose" are not objectionable under this theory.  (7  Witkin, Summary of Cal. Law, supra, § 207, at p. 345.)  Arguably, costs bill enforcement is similar to a statutory penalty that reflects the normal prevailing party rules that apply in this, as well as other kinds of litigation.  (Code Civ. Proc., §  1032.)  Such costs are not imposed without a judicial resolution of the subject claims.  This statutory procedure does not impose undue or unforeseen burdens on a losing party, and " can be said to further nonpunitive legislative purposes" in a reasonable manner.  (Eu, supra, 54 Cal.3d at pp. 525-527.)

            With regard to the third test, motivational, we disagree with plaintiff that his type of litigant and/or plaintiffs' consumer attorneys were unfairly singled out for particular punishment in Prop. 64.  In the term limits case, Eu, supra, even though the particular ballot pamphlet arguments of the measure's proponents described certain legislators in unflattering terms (in support of term limits), the Supreme Court ruled that those ballot arguments, properly read, " contain no indication of an intent to punish those individuals for any particular past misconduct.  Broad reform measures are frequently prompted by particular acts or circumstances involving specific individuals, but in our view such measures would not constitute improper bills of attainder unless an intent to punish such individuals clearly appears from their face, or from the circumstances surrounding their passage."   (Eu, supra, 54 Cal.3d 492, 526-527.)

            Here too, the potential imposition of litigation costs on an unsuccessful consumer plaintiff, who was deprived of standing by Prop. 64, does not fall within the category of impermissible punishment imposed by a bill of attainder.  Instead, the measure constituted a reform by the voters that restricted the availability of a particular remedy under the UCL, a statutory scheme that was always subject to revision with respect to its allowable scope.  This fact of life was presumably known to Bivens and his attorney at the relevant times, but they nevertheless continued with this litigation, and are properly exposed to costs liability.  Consistent with the approach in CDR, supra, 39 Cal.4th 223, 229, footnote 2, we need not rely on the statutory repeal rule to reach this conclusion. 

            Bivens does not appear to challenge the denial of his request for attorney fees.  However, we find reinforcement in our application of these principles in CDR, in which the Supreme Court addressed a parallel issue regarding the availability of attorney fees.  The court discussed whether Prop. 64 may, as applied " to cases in which uninjured persons have volunteered to act as private attorneys general, defeat such persons' hope of recovering attorneys' fees under Code of Civil Procedure section 1021.5."   (CDR, supra, 39 Cal.4th at p. 233.)  The court reasoned that since an interest in suing on another person's behalf is not a property right beyond statutory control, this initiative measure restricting proper plaintiffs to those who can show individual standing and injury could be applied in that manner, even if its effect was to restrict the availability of awards of attorney fees to successful plaintiffs.  The court noted, " In any event, section 1021.5 confers no right to fees until a plaintiff has, among other things, been 'successful . . . in [an] action which has resulted in the enforcement of an important right affecting the public interest,' conferred 'a significant benefit . . . on the general public or a large class of persons,' and persuaded a court to exercise its discretion to award fees. "  (CDR, supra, at p. 233.)  Such plaintiffs' rights to a fees award were not interfered with to an unacceptable degree.

            By the same token, we are wholly unpersuaded by Bivens's constitutional arguments against the availability of a costs judgment against him, a party who did not prevail in the litigation that he started and continued, without success or even reasonable diligence, during the relevant time periods.  The trial court did not err in entering the judgment for costs.

DISPOSITION

            The judgment of dismissal and related orders are affirmed.  Banner is entitled to its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

                                       HALLER, J.

                                            IRION, J.

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