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Filed 9/28/09 Certified for publication 10/28/09 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT PHILIP KENT COHEN, Plaintiff and Appellant, v. DIRECTV, INC., Defendant and Respondent. B204986 (Los Angeles County Super. Ct. No. BC324940) APPEAL from an order of the Superior Court of Los Angeles County, Peter D. Lichtman, Judge. Affirmed. King & Ferlauto, William T. King and Thomas M. Ferlauto for Plaintiff and Appellant. Kirkland
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    Filed 9/28/09 Certified for publication 10/28/09 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICTDIVISION EIGHTPHILIP KENT COHEN,Plaintiff and Appellant,v.DIRECTV, INC.,Defendant and Respondent.B204986(Los Angeles CountySuper. Ct. No. BC324940)APPEAL from an order of the Superior Court of Los Angeles County,Peter D. Lichtman, Judge. Affirmed.King & Ferlauto, William T. King and Thomas M. Ferlauto for Plaintiff andAppellant.Kirkland & Ellis, Melissa D. Ingalls, Becca Wahlquist and Shaun Paisley forDefendant and Respondent.   2A subscriber to services delivered by a satellite television company filed a classaction complaint alleging the company had disseminated false advertising to induce him and other subscribers to purchase more expensive “high definition” or “HD” services. On a prior appeal, we affirmed the trial court ‟s order denying the company‟s motion tocompel arbitration of the subscribers‟ class action claims. (See Cohen v. DIRECTV, Inc .(2006) 142 Cal.App.4th 1442 ( Cohen I  ).) In the appeal before us today, the subscribers challenge the trial court‟s subsequent order denying their motion for class certification. We affirm the trial court‟s order. FACTS DIRECTV, Inc., operates a satellite system that transmits television programmingto subscribers for a monthly fee. In February 1997, Phillip Kent Cohen began subscribing to DIRECTV‟s basic service. In July 2003, Cohen upgraded to DIRECTV‟s“HD Package,” which, according to the company‟s advertising, delivers higher quality television images than its basic service. 1   Subscribers to the HD Package pay anadditional monthly fee, and must buy equipment costing, in some instances, more than$1,000. (See Cohen I  , supra , 142 Cal.App.4th at p. 1445.)In November 2004, Cohen filed a class action complaint against DIRECTV on  behalf of himself and “similarly situated consumers” and “the general public.” Cohen‟s operative complaint alleges two causes of action: (1) violation of the Consumer Legal Remedies Act or “CLRA” (see Civ. Code, § 1750 et seq.), and (2) violation of the Unfair Competition Law or “UCL” (see Bus. & Prof. Code, § 17200). Broadly summarized, Cohen‟s complaint rests on the following foundational claim: “Starting in September of  2004, DIRECTV started tinkering with the HDTV channels making up the HD Package in an effort to preserve bandwidth.” More s pecifically, Cohen alleges that DIRECTV reduced the bandwidth of transmission from “19.4 Mbps” or millions of bits per secondor megabits per second, to “an astonishing 6.6 Mbps,” and also reduced the “horizontaland interlaced vertical lines” on certain channels. In more colloquial terms, Cohen‟s 1   According to Cohen, he subscribes to DIRECTV‟s HD service because he likes watching the company‟s exclusive NFL Sunday Ticket programming in HD.   3 complaint alleges that DIRECTV switched its HDTV channels to a lower “resolution,” reducing the quality of the television images it transmits to its subscribers. Cohen‟s complaint does not allege that DIRECTV i s systematically breaching its subscribers‟ contracts for satellite television services by transmitting a lower resolution television image than it is contract-bound to deliver. Instead, Cohen alleges a species of fraud in the inducement, alleging that su  bscribers to DIRECTV‟s HD services purchasedthose services in reliance on the company‟s false advertising. In that vein, Cohen allegesthat he and the other class members “subscribed to DIRECTV‟s HD Package based uponDIRECTV‟s national advertising and marketing of the HD Package;” and that DIRECTVhas “represented that channels in its HD Package are broadcasted in the . . . 1920x1080i standard and at 19.4 Mbps, which they are not,” and that DIRECTV has “advertised the sale of its HD Package without the intent to provide the customers with broadcasts inthe . . . 1920x1080i standard and at 19.4 Mbps.” In May 2005, DIRECTV filed a motion to compel arbitration. Cohen opposed the motion, arguing the arbitration clause found in the parties‟ customer agreem ent was not enforceable because (1) DIRECTV‟s unilateral addition of an arbitration clause did not result in a binding agreement to arbitrate, and (2) the ban on class litigation of claims in arbitration was unconscionable. The trial court denied DIRECTV‟ s motion, concluding the arbitration clause was “   „procedurally and substantively unconscionable, against public policy and unenforceable.‟   ” ( Cohen I  , supra , 142 Cal.App.4th at p. 1446.) In September 2006, we affirmed the trial court‟s decision to deny the motion to compelarbitration. 2 (  Id. at p. 1442.) 2 DIRECTV‟s motion included a demurrer to Cohen‟s complaint or, in the alternative, a motion to compel arbitration. The trial court overruled the demurrer at thehearing on the motion to compel arbitration, and, shortly after we issued ourSeptember 2006 opinion in Cohen I  , supra , 142 Cal.App.4th 1442, DIRECTV filed its answer to Cohen‟s complaint.   4In October 2007, Cohen filed a motion for class certification and appointment of  class counsel. Cohen‟s motion to certify the class was supported in significant part withevidence showing DIRECTV‟s print advertising and promotional materials for its HDPackage, and requested the trial court to certify a class defined as follows: “Residents of the United States of America who subscribed toDIRECTV‟s High Definition Programming Package”DIRECTV‟s op position to the motion for class certification was supported in large  part by a number of declarations from subscribers to the company‟s HD Package, each of  whom explained that their individual decisions to buy the upgraded service had not beenprecipitated by any printed advertising or other promotional materials disseminated byDIRECTV. 3   3   A sampling of the declarations submitted by DIRECTV includes the following.Dan Kraus declared : “I decided to subscribe to HD Programming because I bought an HDTV, and [DIRECTV was] finally offering enough high def programming for me to sign up.” He   did not recall any details of DIRECTV‟s advertising. Thomas Barbour:“I decided to subscribe to HD Programming because I wanted to see the Bears games inHD and other sports . . . .” He didn‟t remember “anything in that advertising about pixelsor bandwidth.” Scott Greenwood: “I decided to subscribe . . . because of the better  quality channels ava ilable.” He didn‟t recall seeing any advertising regardingDIRECTV‟s HD services before subscribing. Katherine Kelso: “I decided to subscribeto HD Programming because my husband wanted it.” Gordon Sparks: “I decided tosubscribe to HD Programming because I bought two new LCD Sony televisions and couldn‟t see HD programming without HD receivers.” He did not recall any advertisingabout pixels or bandwidth. Terry Scott: “I decided to subscribe to HD Programming because I bought a new HD television and wanted to get the programming to match. [¶]. . . Before I subscribed, I personally saw DIRECTV‟s HD programming at a friend‟shouse and thought the pictures were really clear.” Lisa Bowman: “I decided to subscribe to HD Programming because when we got the HDTV, I was a Dish Network subscriberat the time, and I was unhappy. I switched to DIRECTV for a lower price. [¶] . . . Before I subscribed, I personally saw DIRECTV‟s HD Programming at my parents‟house. I thought it looked great.” She did not recall any details of DIRECTV‟s advertising.
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