Cal. Medical Assn. v. Aetna Health of Cal., Inc.Cal. Medical Assn. v. Aetna Health of Cal., Inc.
The California Medical Association, a professional association representing California physicians, has sued a health insurance company, alleging the company violated the unfair competition law (UCL;
The issue arises here because, under the UCL as it was amended in 2004 by Proposition 64, a membership organization such as the California Medical Association may not base standing to sue on injuries to its members, but only on those to the organization itself. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003–1004 (Amalgamated Transit).) And, while an organization would clearly have standing under the UCL if it were, for example, fraudulently induced to buy a product from a deceptive seller (see
We hold that the UCL‘s standing requirements are satisfied when an organization, in furtherance of a bona fide, preexisting mission, incurs costs to respond to perceived unfair competition that threatens that mission, so long as those expenditures are independent of costs incurred in UCL litigation or preparations for such litigation. When an organization has incurred such expenditures, it has “suffered injury in fact” and “lost money or property as a result of the unfair competition.” (
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Aetna Health of California Inc. (Aetna) provides health insurance. For its preferred provider plans, Aetna contracts with a network of physicians and other medical providers who offer care to insured individuals at an agreed rate. Member patients can also see providers outside the network on referral from in-network physicians, but may bear a greater share of the cost. Effective in 2009, Aetna adopted a “Network Intervention Policy” designed, according to its terms, to “reduce the number of non par [i.e., nonparticipating, or out-of-network] referrals by par providers and if necessary take further action against participating providers who refuse, after warning and education to comply with the terms of their contract.” (See California Medical Assn. v. Aetna Health of California Inc. (2021) 63 Cal.App.5th 660, 662–664 (California Medical).)2
The California Medical Association (CMA) is a nonprofit professional organization, founded in 1856, that advocates on behalf of California physicians. By CMA‘s count, it has more than 37,000 physician members. CMA‘s established mission, which it carries out through “legislative, legal, regulatory, economic, and social advocacy” (California Medical, supra, 63 Cal.App.5th at p. 664), includes “the protection of the public health and the betterment of the medical profession.” According to its vice-president and general counsel, CMA “has been especially active in advocacy and education on issues involving health insurance companies’ interference with the sound medical judgment of physicians providing care to enrollees.”
In 2010, at least two years before it filed suit, CMA learned of Aetna‘s Network Intervention Policy from its members and became concerned that in threatening termination or actually terminating participating physicians for their referrals to out-of-network providers, the policy‘s implementation interfered with physicians’ exercise of their sound medical judgment. Aetna
CMA‘s general counsel estimated that the organization diverted 200–250 hours of staff time to respond to the policy. That time was spent on activities including: (i) “investigat[ion]” for the purpose of “advis[ing] physicians and the public regarding how to address Aetna‘s . . . interference with the physician-patient relationship in an effort to avoid litigation over this issue“; (ii) “prepar[ing] a 3-page document entitled the ‘Aetna Termination Resource Guide,’ which [CMA] publicized, advising . . . members about Aetna‘s new policy . . ., including ways to proactively address and counteract Aetna‘s policies“; (iii) engaging with physicians affected by Aetna‘s policy and interacting with Aetna on physicians’ behalf; and (iv) “prepar[ing] a letter to California‘s Department of Insurance and California‘s Department of Managed Health Care requesting that they take action to address” Aetna‘s change in policy. According to the general counsel, at least some of this diverted time “would otherwise have been devoted to serving [CMA‘s] membership” in other respects.
In July 2012, CMA sued Aetna, alleging Aetna‘s implementation of the Network Intervention Policy violated the UCL both because it was unfairly oppressive and injurious and because it violated specified sections of the Insurance Code, Business and Professions Code, and Health and Safety Code. CMA sought to enjoin Aetna from enforcing the policy. Aetna moved for summary judgment. It argued that CMA lacked UCL standing because CMA had not lost money or property as a result of the policy. Aetna emphasized that the policy applied to individual physicians - not to CMA. CMA countered that it had diverted resources in response to the policy.
The trial court granted Aetna‘s motion for summary judgment on standing grounds. Relying on Amalgamated Transit, supra, 46 Cal.4th 993, the court concluded that an organization‘s diversion of resources is not “sufficient to establish standing under the UCL.” CMA appealed.
The Court of Appeal affirmed. (California Medical, supra, 63 Cal.App.5th 660.) First, the court held that CMA could seek an injunction against Aetna only if CMA had individually suffered injury in fact and lost money or property; injury to CMA‘s members did not suffice. That conclusion is not disputed here. Second, the court addressed whether CMA‘s evidence that it diverted substantial resources to investigate and oppose Aetna‘s actions
We granted CMA‘s petition for review.
II. DISCUSSION
Sections 17200 to 17210 of the Business and Professions Code contain what we now refer to as the unfair competition law. (Stop Youth Addiction, Inc., v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558, fn. 2 (Stop Youth Addiction); see id. at pp. 569–570 [history of UCL].) The law‘s ” ‘purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ ” (McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 954 (McGill).) To that end, the UCL takes aim at “unfair competition,” a term it defines to “include any unlawful, unfair or fraudulent business act or practice.” (
The UCL‘s broad reach contrasts with the somewhat limited scope of the remedies that the statutory scheme creates. The UCL affords private plaintiffs the ability to seek injunctive relief and restitution in response to unfair conduct. (
This case concerns the circumstances in which a private organization may seek injunctive relief under the UCL. In the past, “any person acting for the interests of itself, its members or the general public” could bring a UCL action - even if that person had not been injured by the business act or practice at issue. (Former
Proposition 64 limited the set of eligible private UCL plaintiffs to those persons who have “suffered injury in fact” and “lost money or property as a result of” the business act or practice at issue. (Voter Information Guide, Gen. Elec., supra, text of Prop. 64, § 3, p. 109;
Whether CMA has standing to bring a claim under the UCL requires us to answer two questions of statutory interpretation.3 The first is whether diversion of staff time can qualify as an “injury in fact” and loss of “money or property” within the meaning of section 17204. The second is whether an organization that chose to divert staff time to counteract the defendant‘s business practice can be said to have lost that staff time “as a result of” (ibid.) that practice. We review these
interpretive questions de novo, beginning by
Whether the trial court erred by granting Aetna‘s motion for summary judgment is likewise subject to de novo review, and like the trial court ruling on the motion, we must view the evidence in the light most favorable to CMA and draw all reasonable inferences in CMA‘s favor. (Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864; Samara v. Matar (2018) 5 Cal.5th 322, 338.)
A. Economic Injury
A private plaintiff has UCL standing only if that plaintiff “has suffered injury in fact and has lost money or property.” (
The phrase “injury in fact” is borrowed from, and was intended to incorporate aspects of, the federal constitutional law of standing. (See Voter Information Guide, Gen. Elec., supra, text of Prop. 64, § 1, subd. (e), p. 109 [declaring intent to limit standing to plaintiffs who have been “injured in fact under the standing requirements of the United States Constitution“].) To establish a case or controversy within the scope of the federal judicial power (
Beyond this limitation to economic injuries, section 17204‘s reference to “money or property” does not otherwise define or limit the injury-in-fact inquiry. (Kwikset, supra, 51 Cal.4th at pp. 323–325.) A showing of economic injury requires only that the plaintiff allege or prove “a personal, individualized loss of money or property in any nontrivial amount.” (Id. at p. 325.) Moreover, because the issue is one of standing, rather than the amount of restitution due, “a specific measure of the amount of this loss is not required. It suffices that a plaintiff can allege an ’ “identifiable trifle” ’ [citation] of economic injury.” (Id. at p. 330, fn. 15.)
As we explained in Kwikset, “[t]here are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary. [Citation.] Neither the text of Proposition 64 nor the ballot arguments in support of it purport to define or limit the concept of ‘lost money or property,’ nor can or need we supply an exhaustive list of the ways in which unfair competition may cause economic harm.” (Kwikset, supra, 51 Cal.4th at p. 323.)
CMA contends it suffered an economic injury through the diversion of personnel and other resources to respond to Aetna‘s Network Intervention Policy, resources that would otherwise have been deployed to assist CMA‘s members in other ways. Consistent with our observation in Kwikset that Proposition 64 did not “purport to define or limit” what constitutes lost money
or property (Kwikset, supra, 51 Cal.4th at p. 323), we conclude that diversion of salaried staff time and other office resources can constitute the loss of “money or property” within the meaning of section 17204. Every organization, including CMA, has finite resources to devote to its mission. If the organization uses staff time for a particular project, for example, it must either pull those hours from a different project or augment its staff. Even if,
While the exact question of UCL standing presented here is one of first impression in this court, it has been addressed by other courts applying California law, and closely analogous questions of federal standing have been addressed by the federal courts. Before turning to those decisions, though, we observe that CMA‘s theory of economic injury is consistent with how we have understood this element of UCL standing. In Kwikset, we held that consumers who purchased locksets in reliance on an allegedly false “Made in U.S.A.” label (Kwikset, supra, 51
Cal.4th at p. 316) “ha[d] ‘lost money or property’ within the meaning of Proposition 64” (id. at p. 317), even though the products were not objectively defective and the plaintiffs, “while they had spent money, [had] ‘received locksets in return’ ” (id. at p. 331). Consumers deceived in this manner, we explained, suffered economic injuries when they purchased products they would not have bought, at least at that price, had the products been accurately labeled. (Id. at pp. 329–330.) Kwikset relied in part on our earlier decision in Clayworth, supra, 49 Cal.4th at pages 788–789, where we held that the plaintiff pharmacies’ ability to pass drug manufacturers’ allegedly illegal overcharges on to consumers did not defeat their standing under the UCL, because they suffered an economic injury when they paid the manufacturers’ inflated prices. (Kwikset, at p. 334.)
Our cases thus teach that economic injury for purposes of UCL standing, even after Proposition 64, is not limited to out-of-pocket expenditures for which no value has been received, or to objectively determined overpayments. In that respect, the facts here can be seen as loosely analogous to those in Kwikset and Clayworth. CMA may not have incurred additional out-of-pocket costs in responding to Aetna‘s allegedly illegal practices; its employees were salaried and would have been paid regardless. But the economic value CMA received from their labor was reduced. CMA “lost money or property” (
allegedly unfair business practices. (Kwikset, supra, 51 Cal.4th at p. 323.) That injury suffices for standing purposes.
On facts closer to those shown here, courts have agreed that UCL standing can be based on an organization‘s diversion of resources in response to a threat to its mission. In Animal Legal Defense Fund v. LT Napa Partners LLC (2015) 234 Cal.App.4th 1270 (Animal Legal Defense), the plaintiff organization had advocated for a California ban on the sale of foie gras and was active in informing the public about the law once enacted. (Id. at p. 1280.) On discovering that the defendant‘s restaurant was continuing to serve foie gras, the organization diverted staff time and resources from other projects to complete an investigation of the restaurant, share its findings with local law enforcement authorities, and try to persuade those authorities to enforce the ban against the defendant. (Ibid.) The Court of Appeal concluded the plaintiff‘s diversion of resources constituted economic injury as Kwikset had explained that UCL standing requirement: in response to the defendant‘s allegedly illegal sales, the organization had ” ‘enter[ed] into a transaction, costing money or property, that would otherwise have been unnecessary.’ ” (Animal Legal Defense, at p. 1280, quoting Kwikset, supra, 51 Cal.4th at p. 323.)5
Similarly, in Southern California Housing Rights Center v. Los Feliz Towers Homeowners Ass‘n (C.D.Cal. 2005) 426 F.Supp.2d 1061 (Southern California Housing), a condominium owner and a housing rights organization sued a homeowners’ association for failing to provide the owner with an accessible parking space as a reasonable accommodation for her disability. (Id. at p. 1063.) In a brief analysis, the federal district court concluded the organization had standing under the UCL, even after Proposition 64, because it had presented “evidence of actual injury based on loss of financial resources in investigating this claim and diversion of staff time from other cases to investigate the allegations here.” (Id. at p. 1069; accord, In re WellPoint, Inc. Out-of-Network UCR Rates Litigation (C.D.Cal. 2012) 903 F.Supp.2d 880, 900 [relying on Southern California Housing in declining to dismiss plaintiff associations’ claims of organizational injury].)
A California appellate court later cited Southern California Housing as one of several examples of how “expend[ing] money due to the defendant‘s acts of unfair competition” could establish economic injury, describing the federal
While Kwikset did not specifically endorse the decision in Southern California Housing, our approving citation of Hall‘s catalogue, which included the citation to Southern California Housing and described its diversion-of-resources reasoning, indicates at the least that the diversion theory of standing is not facially inconsistent with Kwikset‘s understanding of the UCL after Proposition 64.
The Court of Appeal below considered Animal Legal Defense distinguishable on the ground that the plaintiff organization in that case, unlike CMA here, “was not advocating on behalf of or providing services to help its members deal with their loss of money or property.” (California Medical, supra, 63 Cal.App.5th at p. 668.) Because CMA‘s expenditures benefited its physician members who were threatened by Aetna‘s policy, the lower court reasoned, CMA‘s suit is in reality a representative one. (Ibid.) Aetna makes the same argument.
We find the lower court‘s reasoning unpersuasive for at least two reasons. First and most fundamentally, the court‘s opinion appears to conflate CMA‘s own claimed injury, its expenditure of resources responding to Aetna‘s policy, with the injuries to the member physicians affected by that policy. The two injuries are conceptually distinct, even if CMA acted in part to prevent further injury to its members. Relatedly, the Court of Appeal appears to have confused associational standing, under which an association “may bring an action on behalf of its members when the association itself would not otherwise have standing” (Amalgamated Transit, supra, 46 Cal.4th at p. 1004), with organizational standing, in which the organization asserts its own claims based on its own injuries.
For the same reason, we are not persuaded that, as Aetna maintains, CMA‘s standing theory is foreclosed by our decision in Amalgamated Transit. The plaintiff unions in that case, unlike CMA, made no claim to injuries distinct from those to their members, instead seeking standing only as assignees and representatives of the injured union members. (Amalgamated Transit, supra, 46 Cal.4th at pp. 998–999.) Here, in contrast, CMA‘s standing theory - organizational rather than associational standing - is based on its own claim of economic injury.
Second, the perceived threat to CMA‘s mission went beyond injury to physician members of CMA. By imposing unwarranted restrictions on network physicians’ medical referrals, in CMA‘s view, Aetna‘s policy impaired
The Court of Appeal‘s discussion of this point is also unclear as to its bearing on the standing question. Proposition 64‘s amendments to the UCL did not eliminate representative actions. In section 17204, the measure requires that all private plaintiffs have suffered an economic injury; in section 17203, it mandates that private plaintiffs bringing representative actions comply with class actions procedures and requirements developed under
organization could still claim standing based on its own economic injury.6
Both Animal Legal Defense and Southern California Housing relied on a line of federal decisions, beginning with Havens Realty Corp. v. Coleman (1982) 455 U.S. 363 (Havens),
holding that an organization may establish injury in fact by showing that it diverted resources in response to a threat to its mission. (See Animal Legal Defense, supra, 234 Cal.App.4th at pp. 1281–1282; Southern California Housing, supra, 426 F.Supp.2d at p. 1069.) CMA, as well, relies on Havens and its progeny for its standing theory here, while Aetna maintains that the narrower
In Havens, a nonprofit corporation devoted to increasing equal housing opportunities in the Richmond, Virginia area joined individuals who had allegedly suffered from a building owner‘s racial steering practices in suing the owner under the federal Fair Housing Act of 1968 (Havens, supra, 455 U.S. at pp. 366–368), alleging the defendant‘s practices had frustrated the organization‘s mission and caused it “to devote significant resources to identify and counteract the defendant‘s [sic] racially discriminatory steering practices.” (Id. at p. 379.) The high court held the organization‘s allegations satisfied the federal Constitution‘s injury-in-fact requirement, reasoning that “[i]f, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME‘s ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization‘s activities - with the consequent drain on the organization‘s resources - constitutes far more than simply a setback to the organization‘s abstract social interests . . . .” (Ibid.) In a footnote, the court added: “That the alleged injury
results from the organization‘s noneconomic interest in encouraging open housing does not affect the nature of the injury suffered [citation], and accordingly does not deprive the organization of standing.” (Id. at p. 379, fn. 20.)
Federal courts have applied the reasoning of Havens in numerous cases, finding that organizations with a variety of missions have suffered injury in fact through the diversion of their resources. (See, e.g., Nnebe v. Daus (2d Cir. 2011) 644 F.3d 147, 156-157 [taxi drivers’ alliance may base standing to sue regulatory agency on expenditure of resources in counseling and assisting drivers threatened with summary suspension]; Heights Community Congress v. Hilltop Realty, Inc. (6th Cir. 1985) 774 F.2d 135, 139 & fn. 2 [fair housing organization had standing to sue over racial steering]; Crawford v. Marion County Election Bd. (7th Cir. 2007) 472 F.3d 949, 951 [Democratic Party has standing to challenge voter identification law because the law causes the party “to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”]; Fair Housing Council of San Fernando Valley v. Roommate.com, LLC (9th Cir. 2012) 666 F.3d 1216, 1219 [fair housing organizations had standing to sue over allegedly illegal roommate referral practices because the defendant‘s conduct “caused [them] to divert resources independent of litigation costs and frustrated their central mission”]; El Rescate Legal Services, Inc. v. Executive Office of Immigration Review (9th Cir. 1991) 959 F.2d 742, 748 [organizations assisting immigrant refugees established standing by alleging that federal agency‘s translation policy “frustrates [their] goals and requires the
The Havens court did not characterize the alleged injury it found sufficient for organizational standing as economic or noneconomic; unlike UCL standing, federal constitutional standing does not turn on that distinction. Indeed, the high court‘s opinion left it somewhat uncertain whether the injury that mattered was the “impair[ment to] HOME‘s ability to provide counseling and referral services for low- and moderate-income homeseekers,” the “consequent drain on the organization‘s resources,” or both. (Havens, supra, 455 U.S. at p. 379.) The footnoted statement that the alleged injury “results from the organization‘s noneconomic interest in encouraging open housing” (id. at p. 379, fn. 20) does not imply that the injury itself is noneconomic: both the “impair[ment]” of the organization‘s activities (id. at p. 379), seemingly a noneconomic harm, and the “consequent drain on the organization‘s resources” (ibid.), seemingly an economic one, could be said to result from the organization‘s interest in promoting equal housing opportunities.
Some of Havens‘s progeny, however, have more clearly identified the injury that establishes standing under the diversion-of-resources theory as an economic one. In Fair Housing of Marin v. Combs (9th Cir. 2002) 285 F.3d 899, 905, for example, the court held a fair housing organization suing a property owner for racial discrimination “has direct standing to sue because it showed a drain on its resources from both a diversion of its resources and frustration of its mission.” The appellate court noted that the district court had, in fact, awarded more than $16,000 in diversion-of-resources damages to compensate the organization for its “’economic losses’ in staff pay and other ‘funds expended.’” (Ibid.; see also Heights Community Congress v. Hilltop Realty, Inc., supra, 774 F.2d at p. 139, fn. 2 [characterizing housing organization‘s expenditures for monitoring real estate practices as an “economic injury”]. ) In Nnebe v. Daus, supra, 644 F.3d at page 157, the court recognized that the taxi drivers’ alliance had incurred an “opportunity cost” when its resources were diverted to counseling drivers on the city‘s suspension policy and held that this showing of “economic effect” sufficed to
Like the courts in Animal Legal Defense and Southern California Housing, therefore, we find the Havens line of federal decisions persuasive authority for a rule that an organization‘s diversion of resources can establish “injury in fact” and “lost money or property” for purposes of
Relying on the rule that a party opposing summary judgment cannot create an issue of fact by a declaration that contradicts the party‘s prior discovery responses (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12), Aetna argues that the declaration by CMA‘s general counsel estimating that the organization diverted 200-250 hours of staff time to respond to Aetna‘s policy must be disregarded because it contradicts prior discovery responses, and that without that declaration there is no evidence to show economic injury even under the diversion-of-resources theory. The cited depositions, however, show only that one CMA employee (testifying on this point only in his individual capacity) was unaware of databases tracking expenses “for responding to specific member inquiries” and that, according to another employee (whom CMA had designated as most qualified to answer), CMA “is working on trying to identify the cost for resources expended to address the Aetna illegal terminations. . . . [B]ut we don‘t have that available today.” (Aetna also cites its own response to one of CMA‘s filings in opposition to summary judgment, but that contains no admissions by CMA.) The cited deposition testimony does not contradict the general counsel‘s later
B. Causation
A private plaintiff has UCL standing only if the plaintiff lost money or property “as a result of” the practice at issue. (
Aetna argues that
There are reasons to doubt that
Ultimately, however, we need not resolve the question here. In any event, we agree with CMA‘s alternative argument: CMA‘s decision to devote resources to responding to Aetna‘s Network Intervention Policy was not a supervening or superseding cause under the law of proximate causation if it were to apply.
In a decision both parties cite, this court explained that a supervening or superseding cause, one that breaks the chain of proximate causation, is a “later cause of independent origin” that was neither “foreseeable by the defendant” nor “caused injury of a type which was foreseeable.” (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199; accord, Ballard v. Uribe (1986) 41 Cal.3d 564, 587; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56.) “‘[F]or an intervening act properly to be considered a superseding cause, the act must have produced harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017.)
The facts here do not involve any such independent and unforeseeable conduct by CMA or any third party. Aetna implemented its Network Intervention Policy by communications with physicians in its preferred provider networks, in some cases threatening to terminate their network participation. That some of those physicians would alert CMA, the state‘s most prominent physician association, was highly foreseeable. That CMA would come to their assistance by working to reverse or alter Aetna‘s policy, attempting to prevent its implementation in ways that impinged on its members’ medical practices, was equally foreseeable. CMA‘s response to Aetna‘s policy, while voluntary, thus derived foreseeably from Aetna‘s conduct. It was not the type of independent, unforeseeable action that would preclude a finding of proximate cause in a tort context. Even if
Aetna compares this case to Two Jinn, Inc. v. Government Payment Service, Inc. (2015) 233 Cal.App.4th 1321, 1326 (Two Jinn), in which a licensed bail agency sued an unlicensed company for providing bail services in violation of the UCL. As part of its argument for standing, the
Similarly in this case, Aetna argues, its Network Intervention Policy did not affect CMA‘s operations, since the policy applied only to physicians. CMA should not be able to rely on its expenditures opposing that policy for UCL standing, any more than the bail agency in Two Jinn, which was not directly injured by the defendant‘s allegedly illegal conduct, could rely on its investigative costs to establish an economic injury for standing.
CMA does not take issue with the propositions, reflected in Two Jinn‘s reasoning, that the diversion-of-resources theory requires a threat to the plaintiff organization‘s mission and that expenditures made for UCL litigation itself cannot support UCL standing. But, CMA argues, both requirements were met here. Aetna‘s policy, at least in the view of CMA, threatened physicians’ medical independence and consequently the public health, both objects of CMA‘s protective mission. In response, CMA undertook efforts to assist its members in dealing with Aetna‘s policy, to persuade Aetna to stop enforcing the policy, and to spur regulatory action against the policy. These efforts were independent of this litigation, which was commenced approximately two years after CMA began responding to Aetna‘s policy.
We agree with this analysis. As the Animal Legal Defense court explained, in assessing causation under the diversion-of-resources theory, “the proper focus is on whether the plaintiff ‘undertook the expenditures in response to, and to counteract, the effects of the defendants’ alleged [misconduct] rather than in anticipation of litigation.’” (Animal Legal Defense, supra, 234 Cal.App.4th at pp. 1283–1284.) Thus the plaintiff must show that the defendant‘s actions have posed a threat to the plaintiff organization‘s mission, causing it to devote resources to allay the threat. (East Bay Sanctuary Covenant v. Biden (9th Cir. 2021) 993 F.3d 640, 663; Rodriguez v. City of San Jose (2019) 930 F.3d 1123, 1134 [“The organization cannot, however, ‘manufacture the injury by . . . simply choosing to spend money fixing a problem that otherwise would not affect the organization at all’”].)9
Moreover, expenditures an organization makes in the course of UCL litigation, or to prepare for such litigation, do not serve, for purposes of UCL standing, to establish an injury in fact resulting from the allegedly unfair competition. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 815.) That parallels the rule adopted in several federal decisions applying Havens: “An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation.” (Spann v. Colonial Village, Inc., supra, 899 F.2d at p. 27; accord, La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest (9th Cir. 2010) 624 F.3d 1083, 1088; Fair Housing of Marin v. Combs, supra, 285 F.3d at p. 90.)
As CMA argues, however, it has met both standing requirements. The evidence submitted on summary judgment sufficiently showed (that is, it was sufficient to create a triable issue) that CMA‘s expenditures in diverted resources were undertaken in response to a perceived threat to CMA‘s ability to perform its preexisting mission, which according to its general counsel includes “advocacy and education on issues involving health insurance companies’ interference with the sound medical judgment of physicians.”
This is not a case of an organization attempting to manufacture standing and insert itself into a dispute in which it had no natural stake. While voluntary in one sense — CMA, like many other organizations, is free to set its own budgetary priorities — its decision to expend resources on working to counter the perceived threat in Aetna‘s policy followed from that policy in a sufficiently direct and uninterrupted causal chain.10
For the above reasons, Aetna was not entitled to summary judgment on causation grounds.
C. Evasion of Proposition 64‘s Purposes
Beyond their textual arguments focused on economic injury and causation, Aetna and its allied amici curiae contend that recognizing a diversion-of-resources theory of standing in this case would flout the intent of the voters who passed Proposition 64 in order to restrict UCL standing. To assess these claims, we look beyond the operational text in
In its introductory findings and declarations, Proposition 64 identified certain assertedly objectionable practices in UCL litigation, including the law‘s “misuse[] by some private attorneys who . . . [¶] . . . [¶] (3) [f]ile
Aetna‘s argument reads too much into Kwikset‘s allusion to Proposition 64‘s purposes. In Kwikset, there was no dispute that the plaintiffs had dealt with the defendant, whose allegedly false labeling had led the plaintiffs to purchase the defendant‘s product. (Kwikset, supra, 51 Cal.4th at p. 319.) Nowhere in Kwikset did we suggest that section 1 of Proposition 64, which set out the initiative measure‘s findings and statement of purpose, holds legal force independent of the actual statutory language added by the measure. With regard to standing, that operational language is contained in
Section 1 of Proposition 64 explained to voters why limits on standing to sue were viewed as necessary but did not itself add any such limits to the law. The section‘s reference to plaintiffs who have had no business dealings with the defendant formed part of that explanation; it did not add or amend any statutory provisions of the UCL. (See Allergan, Inc. v. Athena Cosmetics, Inc. (Fed.Cir. 2011) 640 F.3d 1377, 1383 [“Proposition 64 did not add a ‘business dealings requirement’ to standing under
Though it was neither a competitor of Aetna nor a consumer of that company‘s services, CMA was affected in its mission by Aetna‘s policy.
More broadly, Aetna argues that the diversion-of-resources theory subverts the limiting intent of Proposition 64 by allowing an organization to “create standing for [itself] by choosing to advocate against any practice the organization disagrees with.” Aetna raises the hypothetical case of an organization with a generally stated mission, for example “Californians for Fair Competition,” that after “a brief stint of advocacy” could have standing for “wide swaths of potential UCL litigation,” thus reinstituting the kind of “‘shakedown suits’” by uninjured plaintiffs Proposition 64 was intended to foreclose. Amicus curiae the United States Chamber of Commerce makes a similar argument, hypothesizing that “an attorney who wishes to sue travel agencies who fail to include their agents’ licenses on their websites,” for example, could form an organization with a stated mission of promoting transparency in the travel industry, hire a staff member and, “after a few weeks, ‘divert’ that staff member‘s time to writing letters to travel agencies who have not publicly posted their agents’ licenses.”
We are not persuaded that recognizing a diversion-of-resources theory in this case will open the door to abuses of the sort suggested by Aetna and the amicus curiae. CMA is an organization with a bona fide mission of promoting the medical profession and the public health, not one formed for the purpose of UCL litigation. Its pursuit of these goals substantially predates the events that gave rise to this litigation, rather than being adopted as a pretext to create UCL standing. Aetna‘s Network Intervention Policy, in CMA‘s view, threatened CMA‘s ability to pursue its mission, and it responded by taking several steps to oppose the policy and alleviate its effects on CMA‘s members, independent of any existing or planned UCL litigation. These steps required reallocation of staff time and other resources from other ongoing projects, giving rise to the economic injury that supports standing here. CMA presented sufficient evidence to, at the least, create triable issues of fact on these points.
In contrast, the organizations in Aetna‘s and the amicus curiae‘s hypotheticals might well have difficulty establishing that they were sincerely pursuing missions separate from planned UCL litigation and that their efforts on a given issue were not undertaken simply to establish standing for such litigation. Without an articulable mission focused enough to make sense
III. CONCLUSION
Viewing the evidence submitted on Aetna‘s motion for summary judgment in the light most favorable to CMA and drawing all reasonable inferences in CMA‘s favor, as we must (Weiss v. People ex rel. Department of Transportation, supra, 9 Cal.5th at p. 864), we conclude the evidence established a triable issue of fact as to standing to sue under the UCL. The Court of Appeal erred in affirming the trial court‘s grant of summary judgment for the defense on the ground that CMA lacked such standing.
IV. DISPOSITION
The judgment of the Court of Appeal is reversed.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
Notes
In its brief, CMA maintains that it seeks injunctive relief that would primarily benefit the public rather than CMA‘s membership and that the action therefore should not be deemed representative for purposes of
We need not resolve this dispute, nor need we address the underlying premise that