ARYEH v. CANON BUSINESS SOLUTIONS

Appellant's Reply to Answer to Petition for Review

Cal.September 10, 2010

SUrHEME COURT FILED SEP 10 2010 Case No. $184929 ~Fraderick «K. Oblrich Clerk IN THE Depuly SUPREME COURTOF THE STATE OF CALIFORNIA © JAMSHID ARYEH, Plaintiff and Appellant, VS. CANON BUSINESS SOLUTIONS,INC, Defendant and Respondent. After a Decision By the Court of Appeal, Second Appellate District, Division Eight Case No. B213104 REPLY IN SUPPORT OF PETITION FOR REVIEW R. Duane Westrup, SBN 58610 Linda Guthmann Krieger, SBN 148728 Mark L. Van Buskirk, SBN 190419 Terrence B. Krieger, SBN 162399 Jennifer L. Connor, SBN 241480 KRIEGER & KRIEGER WESTRUP KLICK, LLP | "249 East Ocean Boulevard 444 Ocean Boulevard, Suite 1614 Suite 750 Long Beach, California 90802-4524 Long Beach, California 90802 Telephone No.: (562) 432-2551 Telephone No.: (562) 901-2500 Facsimile No.: (562) 435-4856 Facsimile No.: (562) 901-2522 E-Mail: jconnor@wkalaw.com E-Mail: tkrieger@kriegerlaw.com Attorney for Plaintiff, Appellant, and Petitioner JAMSHID ARYEH Service on the California Attorney General and The Los Angeles County District Attorney Pursuant to Business & Professions Code § 17209 and C.R.C. Rule 8.29 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ...............0 2.20. e eee eee eee ili SUMMARY OF ARGUMENT........... 2.02.00 e eee cee ene eee 1 ARGUMENT... 2.2.0.0... 0 cece eee eee eee ene 3 1. Courts AndLitigants Would Benefit From Review Because The Parties Agree That The Law Governing Application OfThe UCL Statute Of Limitations To Conduct Occurring Within And Outside Of The Limitations Period Is “Sparse” .................0000505 3 2. Plaintiff, The Dissent, And The Ninth Circuit Disagree That The Snapp Case, The Court OfAppeal’s Only Cited Supporting Precedent, Is Controlling ........... 0.0... cece eee ee eee eee 4 A. Snapp \s Factually Inapposite ........ 0.0... eee ee ee eee eee 5 B. Snapp Is Legally Inapposite ...........0.. 20.2 e eee ees 6 3. While The Question Presented For Review Is Encapsulated By The “Continuing Accrual” Doctrine, The Second District’s Outright Rejection Of The “Continuing Violation” Doctrine To The UCL Further Supports Review ..............2-000000- 9 4. The Second District’s Holding Requires Litigant’s To Run To Court In Order To Preserve Their Rights Regarding Possible Future Misconduct That May Or May Not Occur ............. 14 CONCLUSION 2.0.0...occcence neces 15 CERTIFICATE OF WORD COUNT .........0...0. 0.0 eee ee eee 16 il TABLE OF AUTHORITIES Page(s) STATE CASES Alch v. Superior Court (2004) 122 Cal.App.4th 339, 19 Cal.Rptr.3d 29 ..........0.0.00000.. 13 Community Assisting Recovery. Inc. v. Aegis Ins. Co. (2001) 92 Cal.App.4th 488, 99 Cal.Rptr.2d 721 2.2.0... .0.. 0.000.000. 13 In re Tobacco II Cases (2009) 46 Cal4th 298, 305, 93 CalRptr.3d 559 2.0... eee eee 15 Komarovav. National Credit Acceptance,Inc. (2009) 175 Cal.App.4th 324, 95 Cal.Rptr.3d 880 ..........0......... 12 Monastra v. Konica Business Machines, U.S.A.. Inc. (1996) 43 Cal.App.4th 1628, 51 Cal.Rptr.2d 528 .......0..00........ 8 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 111 Cal.Rptr.2d 87 0.0.0.0. 00.0. cee eee 13 Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 117 Cal.Rptr.2d 331 ............. in passim Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal-App.4th 553, 71 Cal.Rptr.2d 731 ........0..00...00005. 3 Yanowitz v. L’Oreal USA,Inc. (2005) 36 Cal.4th 1028, 32 Cal.Rptr.3d 436 .......0.00.0........ 12-13 FEDERAL CASES Betz v. Trainer Wortham & Co.. Inc. (9" Cir. 2007) 236 Fed.Appx. 253 200.0... c cece cece cence neces 5 ill STATUTES & RULES Business and Professions Code, § 17203 ......... 0... c eee ee eee 13 Business and Professions Code, § 17208 ............. 0202 e ee eee eee 8 Civil Code § 3426.6 0.0.0...ccccent ete e ne eeee 7 Civil Code § 3439.01 20...ccceen ene 6 Civil Code § 3439.09 2.00.nnes 8 OTHER 3 Witkin Cal. Procedure, Actions § 669 ............ 0.0 eee eee eee 10 Restatement 2d, Torts § 222A 0.0.0...eeences 6 iv SUMMARY OF ARGUMENT Although PlaintiffJamshid Aryeh (‘Plaintiff’) contends thatthe matter subjudice was wrongly decided, even moresignificant is the concern that the Court of Appeal’s rationale has pervasive adverse ramifications for future UCLlitigants. This Court should review the following rulings made by Court of Appealin its published decision, Aryeh v. Canon Business Solutions, Inc. (June 22, 2010) No. B213104: 1) the UCLstatute of limitations starts only once at the first occurrence of wrongdoing, irrespective of a defendant’s independent and subsequent repeated wrongful acts. As a_ natural consequence, this meansthat after four years since the first occurrence lapses without suit, future repeated misconduct is immunized and the “continuous accrual” doctrine does not apply; 2) a plaintiff's Knowledge of wrongdoing serves to extinguish otherwise actionable claims occurring independently four years after the first occurrence lapses. Here, the use of Plaintiff's knowledge of wrongdoing six years beforehand to bar his UCL claim arising from acts that occurred within the four year period preceding the litigation is an unprecedentedsort ofreverse “delayed discovery”rule; and 3) the “continuing violation” doctrine never applies in a UCLcase.' ' The proclamation by Defendant Canon Business Solutions, Inc. (“Defendant”) that it would win on legal grounds not considered by the Court of Appeal had it considered them, and thus, this case should not be reviewed because it will be eventually dismissed, see, Answer, pp. 24-29,is self-serving and irrelevant. -j- The practical effect of the Court of Appeal’s holding that the UCL statute of limitations accrues only onceat the first occurrence ofwrongdoing is to require litigants to run to the courthouse to preserve their rights against speculative future misconduct and grant immunity indefinitely to violators who “escape” the statutory time frame without suit. Additionally, the Court of Appeal’s application ofPlaintiff’ s knowledge to render a UCL claim untimely and its outright rejection of the “continuing violation” doctrine is unprecedented. The California Attorney General shares the position that the Court ofAppeal’s rulings warrant this Court’s review explaining: The Attorney General respectfully requests that the Court grant the petition to ensure that timely consumerprotection actions are allowedto proceed, and to address the important issues whether the delayed discovery rule and continuing violation doctrine apply to UCL cases. Withoutthis Court’s guidance,both private plaintiffs and public prosecutors will likely face obstacles in litigating against bad actors, in particular those who have been flouting the law for many years and whoare the most effective at concealing their wrongdoing. See, Letter Supporting Petition For Review Or, Alternatively, Supporting Request For Depublication, p. 5, dated August 30, 2010, signed by Deputy Attorney General Michele R. Van Gelderen. For the reasons discussed in the Petition and below, review should be granted. ARGUMENT 1. Courts And Litigants Would Benefit From Review Because The Parties Agree That The Law Governing Application Of The UCL Statute OfLimitations To Conduct Occurring Within And Outside Of The Limitations Period Is “Sparse.” Plaintiff and Defendant agree that the law with respect to whether a UCLclaim based upon conduct occurring within and outside the limitations period is time-barred is “sparse.” See, Petition, at p. 2; Answer, at p. 13. In fact, Defendant suggests: “This is an understatement — there are only two reported decisions by California courts addressing the issue, and theyare(i) the decision in this case, and(ii) the decision principally relied upon by the Court ofAppeal in reaching its determination in this case, Snapp.” Answer, at p. 13. [emphasis added] Plaintiffdisagrees that Snappis controlling for the reasonsdiscussed in his Petition and infra, and accordingly, this is a case of first-impression. Despite the dearth of precedent, the fact scenario of recurring acts of misconductis familiar to the UCL statute that contemplates protecting consumers and competitors from recurring “unlawful, unfair, or fraudulent business practices” as well as single acts of “unlawful, unfair, or fraudulent business” misconduct. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.App.4th 553, 570, 71 Cal.Rptr.2d 731, 742. 2. Plaintiff, The Dissent, And The Ninth Circuit Disagree That The Snapp Case, The Court Of Appeal’s Only Cited Supporting Precedent, Is Controlling. Plaintiff's case involves separate and distinct repeated acts of alleged wrongdoing; while Snapp involves a single act ofwrongdoing. In ruling that the first occurrence of wrongdoing, commenced the running of the statute of limitations and barsclaimsarising from any separate and independent repeated acts occurring within the four-years preceding the lawsuit, the Second District unambiguously states that “Wefind Snapp to be controlling.” Slip Opn..p. 8. But Defendant’s and the Second District’s interpretation that Snapp involves “allegedly wrongful collection of fees on a recurring basis” and characterization as a “multiple violations”case is erroneous. Slip Opn., p. 8; Answer, p. 14, fn. 3. The wrongdoing alleged in Snapp wasthe single act of misappropriation of client accounts by an insurance broker, albeit the broker later collected insurance premiums. Snapp & Associates Ins. Services, Inc.v. Robertson (2002) 96 Cal.App.4th 884, 888-889, 117 Cal.Rptr.2d 331. The confusion arises because the issue of when that single misappropriation occurred washotly-contested by the parties in Snapp with variousdates being proposed- e.g., 1993, 1994, or 1995 - for the purposeofeither salvaging or defeating the statute of limitations. In fact, the Second District’s own observation about Snapp that, “Thetrial court rejected the plaintiffs claim that the statute did not commence running until the defendant purchased the TRG accounts from the salesman in February 1994,” Slip Opn., p. 7 [emphasis added], reflects inquiry about when a single act of misconduct (and misconduct more akin to misappropriation as opposed to collection of fees) occurred. That confusion is further compounded by the fact that the Snapp court in its discussion ofthe applicable statutes oflimitationsis actually addressing two (2) separate statues both with a four-years limitation period, but measureddifferently - the UCL andthe fraudulenttransfer claims. Snapp, supra, 96 Cal.App.4th at 891. Regardless, along with Justice Rubin’s dissent and the Ninth Circuit, Plaintiff posits that Snapp does not discuss “multiple, continuous acts, some ofwhich occurred inside the limitations period”andis silent as to the “continuing violation” and “continuing accrual”doctrines. See, Betz v. Tranier Wortham & Co. (9" Cir. 2007) 236 Fed. Appx. 253, 256; Slip Opn.- Dissent, p. 8. Thus, Snapp is not controlling and cannot support the Court of Appeal’s decision. A. Snapp Is Factually Inapposite. There are persuasive factual and legal reasons to understand Snapp as a single-violation case despite use of the words“initially” and “on-going” in the opinion. Factually, the case arose and was prosecuted as a result of defendant Robertson’s alleged taking of a single set of accounts, the TRG accounts, once belonging to Snapp andthenstolen by former employee, Gwin. While defendant Robertsonmayhave purchasedall offormer Snapp employee Gwin’s “bookofbusiness,” Snapp wasinterested in the wrongful conversion of its TRG accounts. Snapp, supra, 96 Cal.App.4th at 887-889. Snapp sued Robertson who purchased the TRG accounts from former employee, Gwin, for: 1) conversion; 2) misappropriation oftradesecrets in violation ofUniform Trade Secrets Act (Civ. Code § 3426.1); 3) fraudulent transfer in violation of the Uniform Fraudulent Transfer Act (Civ. Code § 3439.01); 4) unfair competition (Bus. & Prof Code, § 17200); 5) interference withcontract; 6) intentional interference with economic advantage; and 7) fraudulent concealment. /d. at 889. These causes ofaction emphasize a wrongful taking or inappropriate acquisition, as opposed to the mere wrongful collection of fees as suggested by Defendant and the Second District. B. Snapp Is Legally Inapposite. Legally, conversion is an intentionaltort that consists ofthe wrongful exercise of dominion or control over personal property, which so seriously interferes with another’s rights to control the property that the converter is required to pay the other the full vale of the property as damages for the conversion. See, Restatement 2d, Torts § 222A. As the Snapp court recognized, a cause of action for conversion requires plaintiff's ownership or right to possession of the property at the time of the alleged conversion. . Snapp, supra, 96 Cal.App.4th at 892, fn. 2. The parties in Snapp disputed when the alleged conversion occurred - e.g., when defendant Robertsonfirst began his brokering activity on the TRG accounts in 1993; when defendant Robertson purchased the TRG accounts from Gwin in 1994; or when the arbitrator adjudged the accounts property of Snapp in 1995? Id. at 891-892. While the Snapp court ultimately concluded it was when defendant Robertson first began his brokering activity on the TRG accounts, as both a factual and legal matter, the conversion of the TRG accounts could only and did only occur once. Also, it is worth noting thatthe statute of limitations for Snapp’s claim for misappropriation of trade secrets (Uniform Trade Secrets Act, Civ. Code § 3426.1) explicitly does not recognize a “continuing misappropriation” theory. Section 3426.6 of the Civil Code states: An action for misappropriation must be brought within three years after the misappropriation is discoveredor by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a@ continuing misappropriation constitutes a single claim. Civil Code § 3426.6. [emphasis added] Even assuming arguendo that defendant Robertson’s misappropriation could be construed as “continuing”or “on-going” conduct, for purposes ofthe statute of limitations, such is treated as a “single claim.” Similar language is -7- noticeably absent from Section 17208 of the Business & Professions Code proscribing the UCL’s four-years limitation period. Finally, to the extent Snapp foundthat plaintiff had notice and “knew ofpotential claims against Robertson for his retention ofcommissions on the TRG accounts more than four years beforeit filed its complaint,” see, Snapp, supra, 96 Cal.App.4th at 891, that discussion is relevant to the four-years statute of limitations on the fraudulent transfer claim (Uniform Fraudulent Transfer Act, Civil Code §3439.01), not the UCL. As the Snapp court noted, the fraudulent transfer claim “must be brought ‘within four years after the transfer was madeor the obligation was incurredor,iflater, within one year after the transfer or obligation was or couldreasonably have been discovered by the claimant.” Id. at 891 (citing Civil Code § 3439.09(a) and Monastrav. Konica Business Machines, U.S.A., Inc. (1996) 43 Cal.App.4th 1628, 1645, [51 Cal.Rptr.2d 528]). [emphasis added, citation added] In other words, the limitations period for fraudulent transfer is four years from when the conduct occurs or one year after the transfer was or could reasonably have been discovered, whicheveris later. Since the UCLalso has a four-yearsstatute of limitations, the Snapp court’s observation that the UCL accruesirrespective of whetherplaintiff knows ofits accrual or not, can be understood as being distinguished from the fraudulent transfer claim discussed immediately preceding it. Thus, because of the inclusion of the fraudulent transfer cause of action, the Snapp court was required to analyze when Snapp could have discoveredits claims notwithstandingthat a plaintiff’s discovery is irrelevant tothe UCL. Considered in connection with the factual conversion ofaccounts, along with the non-UCLclaimsalleged, Snapp is a single violation case, rather than a case of multiple, repeated violations occurring within and without the statutory period. In contrast to Snapp, the UCL is the only claim alleged in Plaintiffs case. Asa result, the Second District’s ruling that the UCL statute of limitations starts only once at the first occurrence and that Plaintiff's knowledge bars independent wrongful acts occurring within the four-year statutory period is contrary to the rules governing accrual andis erroneous. Accordingly, Snapp is not analogous, should not dictate the result in the matter subjudice, and renders the question presented for this Court’s review one of first impression. 3. While The Question Presented For Review Is Encapsulated By The “Continuous Accrual” Doctrine, The Second District’s Outright Rejection Of The “Continuing Violation” Doctrine To The UCL Further Supports Review. Through his Petition, Plaintiff asks whether the UCL statute of limitations begins to run on the first-occurrence of actionable wrong or runs anew with each subsequent time a defendant invades a plaintiff's rights and -9. causesinjury? See, Petition, pp. 1-2. The notion that the statutory clock runs anew with eachviolation is encompassedby the “continuous accrual” doctrine - whichis distinct from the “continuing violation” doctrine. Justice Rubin, writing his dissent, describes the distinction as follows: A careful parsing of “continuing violation” and “continuous accrual” reveals more than a semantical difference. The former describes what is essentially a fiction: a wrong committed sometime in the past will be deemed to have also been committed later if it is closely connected with more recent misconduct. Theoriginal violation will be treated as continuing even if the earlier act is completed. Continuous accrual is different. Rather than extending the impact ofprior conduct,it acknowledgesthereality that similar acts can continueto occur: one can breach the same contract over and over again in substantially the same manner. Earlier conduct is not extended but repeated. Witkin describes the rule as follows: “In several types of casesit has been held that, where a right or obligation is continuing, successive causes of action to enforce it continuously accrue, and the bar ofthe statute can only be set up against those causes on which the period has run.” (3 Witkin Cal. Procedure, supra, Actions § 669, p. 886) See, Slip Opn.- Dissent, p. 5. [emphasis in original] Here,Plaintiffexpressly stated, and the Second District acknowledged, that he seeks recovery for only the thirteen (13) charges occurring within the four years precedingthefiling of the suit - not the entire seventeen (17) instances of charges beginning six years earlier. Slip Opn., p. 4. Plaintiff has never sought recovery for any charges outside the four-year statutory period. See, Appellant’s Appendix Of Documents On Appeal (“App.”) p. 127 (Second Amended Complaint (“SAC”) 4 15. Further, Plaintiffconsistently arguedthat -10- his UCL claim “does not require reliance on any acts outside ofthe statutory time frame because each violation within the limitations period is independently actionable andstarts its own limitations clock.” App., p. 209- 210 (Opposition To Demurrer To SAC,p. 11-12). Significantly, the Court of Appealunderstood Plaintiff's contention and consideredit: However, appellant asserts the statutory clock not only starts at the time of the first occurrence — i.c., the time an allegedly offending act was committed and caused injury —butrather “re- starts” each time the defendant invades the plaintiff’s rights and causes injury. Slip Opn., p. 6. [emphasis added] Byholdingthat “whenthe allegations regarding a defendant’s conduct covers aperiod oftime, the cause ofaction accruesat the timeoftheinitial conduct,” see, Slip Opn., p. 6, the Second District considered and rejected Plaintiffs contention and by implication rejected, while not in name,at least in principal, the “continuing accrual” doctrine. To be clear, Plaintiff requests review of whether the UCL statute of limitations runs only on the first-occurrence of an actionable wrong or runs anew with each subsequent free-standing violation - a question encapsulated by the “continuous accrual” doctrine. Nonetheless, the Second District’s outright rejection of the “continuing violation” doctrine to the UCL is problematic forfuture litigants with different fact scenarios who might, except for the Second District’s opinion, seek to avail themselvesofthe “continuing -l1- violation” doctrine. For example, as acknowledged by the SecondDistrict, in Komarovav. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345, 95 Cal.Rptr.3d 880, the court permitted recovery for acts outside the statutory period for unlawful debt collection practices pursuant to the “continuing violation” doctrine. The rationale wasthat because“the harassing phone calls were a continuing course of conduct that extended into the limitations period, plaintiff could recover under the continuing violations doctrine for all of the violations that occurred during those calls.” Komarova, supra, 175 Cal.App.4th at 345. [emphasis added] In rejecting application of the “continuing violation” doctrine to the UCL,the Second District commentedthat, [R]outinely billing and collecting for ‘test’ copies is not the type of harassing and egregious conduct the continuing violation doctrine is designed to deter. No comparable policy considerations compel applying the continuing violations doctrine to violations ofthe UCL.” Slip Opn., p. 12. [emphasis added] But there is simply no authority to support the SecondDistrict’s limiting ofthe “continuing violation” doctrine to “harassing and egregious” conduct and the Second District’s outright refusal to apply it to the UCL is unjustified. On the contrary,it is quite conceivable that a UCL claim mightbe plead byplaintiffs in cases like Komarova or employment cases such as those where the “continuing violation” doctrine is recognized. See, e.g., Yanowitz v. L’Oreal -12- USA,Inc. (2005) 36 Cal.4th 1028, 32 Cal.Rptr.3d 436; Richards v. CH2MHill, Inc. (2001) 26 Cal.4th 798, 111 Cal.Rptr.2d 87; Alch v. Superior Court (2004) 122 Cal.App.4th 339, 19 Cal-Rptr.3d 29. The Second District’s suggestion that application of the continuing violation doctrine to the UCL is only warranted if a heightened degree of egregious conduct is involved is inconsistent with the UCL’sliberal consumerprotections. See, Community Assisting Recovery, Inc. v. Aegis Ins. Co. (2001) 92 Cal.App.4th 488, 494, 99 Cal.Rptr.2d 721, 725 (recognizing that “the statute [section 17200] imposes strict liability. It is not necessary to show that the defendantintendedto injury anyone.”) Moreover, the Court of Appeal’s statement that- The Legislature has expressed a goal that the UCL be a ‘streamlined procedure for the prevention of ongoing or threatened acts of the unfair competition.’ [citation omitted] A claim for recovery of past damages is not within the contemplation of the UCL, see, Slip Opn., p. 12 [emphasis in original] - ignores the plain language of the 1992 Amendmentthat expressly states that the UCL reaches past conduct. Bus. & Prof. Code § 17203 (providing that “any person who engages, has engaged, or proposes to engage in unfair competition maybe enjoinedin any court ofcompetentjurisdiction”). Beyond the confines of this case, the Second District’s rejection of the “continuing violation” doctrine negatively impacts UCL litigants by unconditionally barring recovery for prior conduct outside, but closely related to conduct -13- occurring within the statutory period that would be recoverable pursuant to the continuing violation doctrine except that a UCL claim is implicated. 4. The Second District’s Holding Requires Litigants To Run To Court In Order To Preserve Their Rights Regarding Possible Future Misconduct That May Or May Not Occur. The practical effect of the Second District’s holding is to require litigants to run to court at the first instance ofmisconductin order to preserve their rights for fear that failing to do so will result in waiver should the same conduct ever repeat itselfover four years into the future. For those individuals whoallow four years to lapse after being subjected to misconduct without filing suit, they have apparently given their consent to such an invasionoftheir rights by that actor indefinitely. In the employmentcontext, for example, a non-exempt employee who worksin excessofeight (8) hours a day and/or forty (40) hours a week without receiving proper overtime compensation pursuant to California’s wage laws would be required to make a choice: eitherfile a lawsuit against his current employer immediately in order to protect his rights against the possibility of future transgressions; or waive the ability to use the UCL to vindicate his rights if his employer violates those overtime statutes again some time four years into the future. These are not attractive options for an employee whose livelihood depends on wages and is counterintuitive to the broad protections -14- afforded by the UCL’s prohibition against “unlawful, unfair, or fraudulent” business acts or practices.” If contrary to the Court of Appeal’s decision, however, the UCL’s statutory clock runs anew each time a defendant invadesa plaintiff's rights and causes separate injury, then the rights of a plaintiffto remedy and hold a defendant accountable each time it acts are balanced with the rights of a defendant to not have to defend against stale claims. Plaintiff's interpretation ofthe UCL’sstatute oflimitations as applied to multiple, distinct, and repeated acts, is consistent with the “continuous accrual”doctrine, specifically, and the rules governing accrual of causes of action, generally. CONCLUSION Forthe reasons set forth herein and in the Petition, this Court should grant review. Date: September 9, 2010 Respectfully submitted, WESTRUP KLICK LLP By: aCe Jenfiifer L. Connor Attomeys for Plaintiff, Appellant, and Petitioner Jamshid Aryeh ? Additionally, consumercases like this Court’s examination of In re Tobacco II Cases (2009) regarding standing in the UCL post-Proposition 64 would have dubious validity in light ofthe Second District’s opinion,at least whenthe at-issue conductis a long-standing practice. 46 Cal.4th 298, 305, 93 Cal.Rptr.3d 559 (alleging “decades- long campaign of deceptive advertising and misleading statements” about nicotine, tobacco use, and disease.) -15- CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.504(d)(1)) I, Jennifer L. Connor, an attorney at law duly admitted to practice beforeall the courts of the State of California and an associate attorney ofthe law offices of Westrup Klick, LLP, attorneys of record herein for plaintiff, appellant, and petitioner Jamshid Aryeh, hereby certify that this Reply In Support Of Petition For Review document (including the memorandum of points and authorities, headings, footnotes, and quotations, but excluding the tables of contents and authorities, and this certification) complies with the limitations of Rule of Court 8.504(d)(1) in that it is set in a proportionally- spaced 13-point typeface and contains 3,641 words as counted by the Corel Word Perfect version 10 word-processing program used to generate this document. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed September9, 2010 in Long Beach, California. LO /sennifer L. Connor -16- o O O N O O o n f F WO W D N = N D N O R O RP O P R K R D P N O N O —= — S e AB A SB S 2 B O B S B S S B | [o o a s © ) © ) - © * © o > © © © ? © ) ~ > ) ) PROOF OF SERVICE At the time of service | was over 18 years of age and not a party to this action. My business addressis 444 West Ocean Boulevard, Suite 1614, Long Beach, California 90802- 4524. On September 9, 2010, | served the following documents described as REPLY IN SUPPORTOF PETITION FOR REVIEW. | served the documents onall interested parties, as follows: Kent Schmidt Linda Guthmann Krieger Dorsey & Witney LLP KRIEGER & KRIEGER 38 Technology Drive, Suite 100 249 E. Ocean Boulevard, Suite 750 Irvine, CA 92618-5310 Long Beach,California 90802 Attorneyfor Canon Business Solutions Co-Counselfor Jamshid Aryeh Richard H. Silberberg Appellate Coordinator Robert G. Manson Office of the Attorney General DORSEY & WHITNEY LLP ConsumerLaw Section 250 Park Avenue 300 S. Spring Street New York, New York 10177 . Los Angeles, CA 90013-1230 Attorney for Canon Business Solutions ConsumerProtection Division Clerk of the Court of Appeal Los Angeles District Attorney's Office Second Appellate District, Division 8 201 North Figueroa St., Suite 1600 300 South Spring Street, Second Floor Los Angeles, CA 90012 Los Angeles, California 90013 Clerk, Los Angeles Superior Court 111 North Hill Street, Dept. 24 Los Angeles, California 90012 The documents were served by the following means (specify): a. By United States Mail. | enclosed the documents in a sealed envelope or package addressed to the personsat the addresseslisted above. | placed the envelope for collection and mailing, following our ordinary business practice. | am readily familiar with this business's practice for collecting and processing correspondencefor mailing. On the same day that correspondence is placed for collection and mailing, it ts deposited in the ordinary course of businesswith the United States Postal Service, in a sealed envelope with postage fully prepaid. | am employed in the county were the mailing occurred. The envelope or package wasplaced in the mail at Long Beach, California. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: September 9, 2010 “)L iY ! ARMES VELOFL