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The California Supreme Court didn’t seem inclined Tuesday to let plaintiffs who file private attorney general class actions use the state’s unfair competition law to avoid arbitration. Specifically, several of the justices expressed concern that doing so would invite abuse of the law, Business and Professions Code § 17200, by encouraging plaintiffs to assert it in all cases seeking injunctive relief from a business. “What’s to prevent the plaintiff in virtually every case [of this type] from seeking injunctive relief under § 17200, and that’s the end of the story?” Justice Marvin Baxter asked plaintiffs lawyer Michael Lehmann of San Francisco. Also on Tuesday, the high court seemed ready to rule — in a case involving the release of an alleged child molester — that the erroneous dismissal of a juror during trial doesn’t create double jeopardy. Courts around the state have been wrestling with the issue for at least two years. In the 17200 case, Jose Cruz filed a private attorney general action against Pacificare Health Systems Inc., claiming that the company had falsely advertised quality health care plans, while actively working behind the scenes to limit the coverage it actually would provide. Cruz sought class certification for the purposes of injunctive relief, restitution and disgorgement of profits. The company, however, sought arbitration based on a clause in its health plan agreements, and argued that the Federal Arbitration Act pre-empts any state statutes to the contrary. Cruz responded by saying the California Supreme Court ruled in 1999′s Broughton v. Cigna Healthplans, 21 Cal.4th 1066, that arbitration is not suitable where someone sues as a private attorney general to enjoin future deceptive practices on behalf of the general public. Pacificare contends, though, that Broughton was abrogated by the U.S. Supreme Court in two subsequent cases — Circuit City Stores v. Adams, 532 U.S. 105 and Green Tree Financial Corp. v. Randolph, 531 U.S. 79. San Francisco Superior Court Judge David Garcia denied Pacificare’s motion for summary judgment, and the First District Court of Appeal agreed last year, reasoning that arbitration isn’t appropriate when the main purpose of the suit is to protect the public. The California Supreme Court seemed to disagree, expressing sentiments that the federal law held supreme even in circumstances in which someone is suing for the public good. “Is it your argument,” Justice Janice Rogers Brown asked plaintiffs lawyer Lehmann, “that even though there is this federal standard, which the Supreme Court has interpreted broadly, that the state can make up exemptions at will?” Earlier Justice Ming Chin and Chief Justice Ronald George had asked defense lawyer William Grauer, of San Diego, why he felt Braughton had been abrogated by the U.S. Supreme Court’s rulings in Circuit City and Green Tree. “Is it just a suggestion?” George asked. “Or do you think there’s no way to reconcile this court’s decision with those two cases?” Grauer said that the high court had made clear in those cases and others that Congress, through the Federal Arbitration Act, had withdrawn the states’ rights to require a judicial forum for any case. “The U.S. Supreme Court has said that categorically,” he said. The case is Cruz v. Pacificare Health Systems, S101003. In the double jeopardy case, the justices were confronted with a situation in which the Second District Court of Appeal set free a man who molested his young daughter for five years. The Second District ruled last year that Los Angeles Superior Court Judge Mark Arnold had erred by having no good cause to dismiss a juror who had expressed concern about the prosecutor’s tone and possible bias by the judge. Arnold’s action, which was not proper, the Second District held, put defendant Manuel Hernandez at risk of being tried improperly for the same offense by a second jury. From the get-go on Tuesday, however, the Supreme Court justices seemed to think there should have been no problem because the juror who was dismissed was replaced by an alternate from the same voir dire panel. “I think there are two cases on point — one from Idaho and one from Arkansas,” Justice Joyce Kennard advised defense lawyer Nancy King of San Diego. Both found there was no double jeopardy problem, Kennard noted, even where a juror was released for no good cause. King tried to argue that the prosecution would have gotten an unfair advantage at trial if double jeopardy hadn’t been declared. But Chief Justice George asked whether her argument wasn’t premised on her hope that the dismissed juror might have either hung the jury or swayed it to her view. “We all have our favorite jury movie,” King responded, as the justices chuckled at the comparisons to the classic “12 Angry Men.” “Juror No. 8 could have been my Henry Fonda.” The court’s ultimate decision was left somewhat in doubt, though, by some of the justices’ questions about whether the dismissed juror was truly unbiased and ready to render a fair decision. King had indicated that the juror expressed sympathy for the defense position, in light of perceived slights by the prosecutor and trial judge. “What I’m saying,” Justice Baxter said, “is that your argument about losing a favorable juror validates what the judge did in this case.” The state was represented by Los Angeles Deputy Attorney General Richard Breen. The case is People v. Hernandez, S105271. Decisions in both cases are expected within 90 days.

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