Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 323192
STEIN, Acting P. J.
Scott Turner, an attorney, brought suit against petitioners, three groups of insurance companies, in separate but consolidated actions, alleging violations of California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.). The suit, brought on behalf of the general public, claims petitioners pay insurance brokers an annual sum of money based upon the volume of business the broker has generated for the insurance company, conduct Turner characterizes as an “illegal kickback.” Turner’s complaints do not allege Turner personally suffered actual injury, or loss of property or money, as a result of petitioners’ conduct.
When Turner filed suit, the UCL allowed private parties to bring UCL suits on behalf of the general public. On November 2, 2004, California’s voters approved Proposition 64, which, as relevant, repealed the provision permitting suit on behalf of the general public, replacing it with a provision allowing a private party to bring a UCL action only if the person filing suit “has suffered injury in fact and has lost money or property as a result of such unfair competition.” (Bus. & Prof. Code, § 17204.) In light of the change in the law, petitioners filed a motion in the superior court, seeking judgment on the pleadings on the grounds Turner lacked standing to pursue the claims. The superior court denied the motion. Petitioners seek to overturn that ruling.
On November 30, 2005, we issued an opinion granting the requested relief, commanding the superior court to vacate its order and enter a new order granting the motion for judgment on the pleadings. (Hartford Fire Ins. Co. v. Superior Court (Nov. 30, 2005, A109257.) We modified our opinion on December 30, 2005, so that it also denied Turner’s request to order the trial court to allow him to seek leave to amend his complaint to substitute a new plaintiff to satisfy the requirements of Proposition 64. On February 8, 2006, the Supreme Court granted review and ordered the opinion nonpublished (S140272), but deferred further action pending consideration and disposition of a related issue in cases then before that court. On July 24, 2006, the Supreme Court decided Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223 (Mervyn’s), holding Proposition 64 applies to cases pending when the proposition took effect. (Id. at p. 227.) On the same day, the court decided Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 (Branick), holding Proposition 64 does not affect the ordinary rules governing amendment of complaints and their relation back. (Id. at p. 239.) The court rejected the contention courts may never permit a plaintiff to amend a complaint to satisfy Proposition 64’s standing requirements, and remanded the matter to the superior court so that the plaintiffs, if they chose, might file a motion to amend. The court ruled that if the plaintiffs did in fact file such a motion, the superior court should decide it by applying the established rules governing leave to amend and the relation back of amended complaints. (Ibid., citing Code Civ. Proc., § 473 & Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.)
On March 21, 2007, the Supreme Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Branick, supra, 39 Cal.4th 235 .
Under Mervyn’s, supra, 39 Cal.4th 223, Turner lacked standing to pursue the claims against petitioners. It follows that petitioners were and are entitled to judgment on the pleadings. In a supplemental brief, filed after the matter was remanded to us, petitioners, while acknowledging the decision in Branick, supra, 39 Cal.4th 235, contend it does not govern the present case, asserting it would be improper to remand the matter to the superior court to allow Turner the opportunity to amend the complaint. Petitioners point out the superior court has ruled Turner has no right to restitution. In their opinion, this means that Turner, or any newly substituted plaintiff, would be limited to seeking injunctive relief. As an injunction can affect only prospective conduct, petitioners reason an amendment would not provide the plaintiff or plaintiffs with any opportunity they might not obtain simply by filing a new action. As Code of Civil Procedure section 473 confers authority on the courts to allow the addition of a party to a pleading “in furtherance of justice,” petitioners argue justice would not be furthered by allowing Turner the opportunity to amend. Petitioners distinguish Branick because the plaintiffs there had not been limited to seeking injunctive relief. We agree that the posture of this case makes it unlikely Turner will be able to convince the trial court to allow him to amend the complaint. Nonetheless, we cannot say Turner has no basis whatsoever for seeking an amendment, or that granting one, if the trial court so chooses, necessarily would be reversible error. We hold, therefore, that under Branick, Turner is entitled to attempt to preserve this action by seeking leave to amend his complaint to satisfy Proposition 64’s standing requirements.
DISPOSITION
Our opinion in this case (Hartford Fire Ins. Co. v. Superior Court, supra, A109257), filed November 30, 2005, and amended December 30, 2005, is hereby vacated and replaced with the opinion filed this day. Let a peremptory writ of mandate issue commanding respondent San Francisco County Superior Court to vacate its order denying petitioners’ motion for judgment on the pleadings, to enter a new order granting the motion for judgment on the pleadings and to take such further action as becomes necessary or appropriate in light of the Supreme Court’s decision in Branick, supra, 39 Cal.4th 235 . The stay previously imposed shall remain in effect until the remittitur issues.
We concur: SWAGER, J., MARGULIES, J.