Bivens v. Banner Bedding
Plaintiff 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, S 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 (S 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.
Appellant 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. Appellant 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.
Court agree that Bivens lacks standing to pursue this action as pled. Court also find the trial court did not abuse its discretion in denying appellant'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 Court affirm.
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