I respectfully dissent. I believe the majority’s opinion is wrong for a variety of reasons.
I. Irrespective of the Compatibility of Class Actions and UCL Actions, This Petition Should Be Denied
A. This Is an Inappropriate Case for Writ Relief
When the present petition first came before us, I dissented from the issuance of the order to show cause and took the somewhat unusual step (in this court anyway) of stating why. I said: “[I] would not have granted the order to show cause because, in [my] opinion, the trial court’s December 24, 2001, order denying, on several different grounds, petitioner’s motion for class certification of all remaining causes of action (including a portion of the fifth cause of action) renders the present petition substantially if not entirely moot.”
Some procedural background of this case may help explain my prior—and continued—concern. The initial complaint (minus any cause of action under the unfair competition law (hereafter UCL)) was filed in April 2000. Almost 17 months later, petitioner’s motion for class certification was denied1 but, in the same order, he was granted leave to file a third amended complaint. Three days later, he filed such a complaint, the one before us *674here. It added a fifth cause of action under Business and Professions Code section 17200.2
On September 19, 2001, one of the defendants, Hayward Dodge, Inc., filed a motion to strike certain specific words and phrases from one paragraph of that fifth cause of action and one paragraph of the complaint’s prayer for relief on the ground, inter alia, that neither forms of relief prayed for (disgorgement and restitution) are permitted under the UCL. On November 8, 2001, the trial court issued its order partially granting and partially denying the motion to strike (November 8 order). It granted the motion as it related to the relief of disgorgement but denied it regarding restitutionary relief. Specifically, it struck from paragraph 71 of the fifth cause of action eight words relating to disgorgement relief and nine similar words from paragraph 5 of the complaint’s prayer for relief, a total of 17 words. That, and only that, was the sum total of the relief granted by the November 8 order, the only order being challenged by the petition before us.
The trial court offered two separate and distinct justifications for its order. The first was, inter alia, that under Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 [96 Cal.Rptr.2d 485, 999 P.2d 718] (Kraus), disgorgement relief is not permitted. Then, in a separate paragraph, the court set forth a second and clearly separate basis for its ruling, the basis to which the majority opinion is addressed, i.e., that a representative UCL action cannot be maintained as a class action.
The trial court’s first rationale for its order was expressly conceded by petitioner in his opposition to Hayward Dodge’s motion to strike. In that pleading—not referenced by the majority—petitioner’s counsel stated: “[P]laintiffs do not disagree with defendant Hayward Dodge’s analysis with respect to the effect of the California Supreme Court’s decision in Kraus on their claims for disgorgement of funds. After Kraus, California courts are no longer able to issue orders for disgorgement of ill-gotten gains or unlawful profits through their equitable powers pursuant to a strictly representative, non-class action claim under Section 17200.”
Just a couple of weeks after the issuance of the November 8 order, petitioner filed a motion for class certification of his other four causes of *675action.3 This motion was denied on December 24, 2001 (December 24 order).4 The court’s reasons for its denial were several: (1) “the class as defined is overbroad,” (2) petitioner had made an inadequate showing of common questions of fact, and (3) plaintiff was not “typical” because, according to his own testimony, he never read the financing contract and did not recall the transaction. The trial court concluded by declining to grant leave to substitute in a “typical plaintiff or plaintiffs . . . because the claims at issue could not be certified for class treatment even if a ‘typical’ plaintiff could be located.”
This was so, according to the December 24 order, for two reasons: (1) the motion only sought “to certify a class to prosecute the first, second, third and fourth causes of action in the third amended complaint” and (2) it had previously held, via its November 8 order, that petitioner “cannot certify a class to pursue the fifth cause of action under Business and Professions Code [section] 17200.” The order’s denial of class certification was expressly “without prejudice to Plaintiff making a further application for class certification,” although the language of the order seems to suggest that, in order to achieve class certification via a future motion, petitioner will have the substantial burden of discovering and then presenting evidence of the requisite common questions of law and fact.
A few weeks later, on January 18, 2002, petitioner filed this petition. In it, he attacks only the November 8 order granting the motion to strike. Indeed, he did not even bring the December 24 order to our attention. That important document was supplied to us by respondent Bank of America, N.A. in exhibits filed with its opposition to the petition.
Let me then summarize the procedural posture in which the majority elects to opine on the availability of class action procedures and relief under the UCL: (1) Hayward Dodge’s motion was only to strike a very few specific phrases from a single paragraph in the fifth cause of action and another paragraph in the prayer for relief; (2) that motion was granted only as to the words pertaining to disgorgement relief and denied as to those *676implicating restitutionary relief; (3) in his pleadings to the trial court, petitioner conceded that striking the disgorgement-related words was justified under Kraus; (4) the trial court’s “no class action under section 17200” rationale was only one of two offered to justify its ruling; (5) even if, contrary to that rationale, class certification is appropriate for UCL causes of action, on the record before it the trial court would almost certainly have come to the same conclusion regarding the inappropriateness of class certification for the fifth cause of action because of the absence of common questions of law and fact and the non-typicality of petitioner; (6) the order partially granting the motion to strike was filed before any motion for class certification relating to any aspect of the operative complaint was filed; (7) when such a motion was filed, it did not implicate the UCL cause of action; (8) the UCL cause of action survives in all respects except for eight disgorgement-related words; (9) petitioner is expressly free to move again for class certification, but clearly will have to do so on the basis of as-yet-undisclosed evidence of common questions of law and fact plus, in all likelihood, a plaintiff or plaintiffs more “typical” than this petitioner.
In light of this background, I find this case a singularly inappropriate one for the grant of a writ. “It is well known that writ relief is deemed ‘extraordinary.’ We deny the vast majority of petitions we see and we rarely explain why. In reality, perhaps the most fundamental reason for denying writ relief is the case is still with the trial court and there is a good likelihood purported error will be either mooted or cured by the time of judgment.” (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100 [46 Cal.Rptr.2d 332].)
Another leading case concerning the propriety of writ relief states: “The large number of rejections of writ petitions demonstrates that courts will not use their scarce resources to second-guess every ruling and order of the trial court, particularly when to do so would save neither time nor aid in the resolution of a lawsuit. [Citation.] [¶] Writ relief, if it were granted at the drop of a hat, would interfere with an orderly administration of justice at the trial and appellate levels. Reviewing courts have been cautioned to guard against the tendency to take ‘ “. . . too lax a view of the ‘extraordinary’ nature of prerogative writs . . .” ’ [citation] lest they run the risk of fostering the delay of trials, vexing litigants and trial courts with multiple proceedings, and adding to the delay of judgment appeals pending in the appellate court. [Citations.] [¶] ‘If the rule were otherwise, in every ordinary action a defendant whenever he chose could halt the proceeding in the trial court by applying for a writ of prohibition to stop the ordinary progress of the action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen. If such were the rule, reviewing courts would in *677innumerable cases be converted from appellate courts to nisi prius tribunals.’ [Citation.]” (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272 [258 Cal.Rptr. 66].)
In the present case, there was never even a motion for class certification regarding the relevant cause of action, only a motion to strike a few words regarding one part of the prayed-for relief. And that motion was granted only in part. The trial court’s later ruling denying class certification for petitioner’s other four causes of action suggested rather clearly that such would also be the fate of the UCL cause of action given the present state of the record. However, that motion was also denied without prejudice and petitioner was expressly allowed to attempt to discover evidence of common questions of law and fact.
The admittedly interesting question of whether, after Kraus and Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163 [96 Cal.Rptr.2d 518, 999 P.2d 706] (Cortez), there is any possible overlap between class actions under Code of Civil Procedure section 382 and representative actions under section 17204 should, I believe, await a case in which that issue is explicitly presented to the trial court by a motion for class certification and in which the trial court’s ruling on such a motion is not likely (or, as in the present case, almost inevitably) to be mooted by future events.
B. The Trial Court’s Order Is Entirely Justifiable Under Its First Rationale
The majority’s opinion inexplicably confuses the order of the court under review with one of the two reasons the court gave for the entry of that order. In so doing, it misses the point that, even assuming the incorrectness of the trial court’s second rationale for that order, its first is clearly—and conceded by the petitioner to be—correct.
A basic principle of appellate jurisprudence, but one overlooked by the majority, is that an “appealed . . . order correct on any theory will be affirmed, even though the trial court’s reasoning may have been erroneous.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2001) ¶ 8:214, p. 8-106.) “If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.” (Mike Davidov v. Issod (2000) 78 Cal.App.4th 597, 610 [92 Cal.Rptr.2d 897]; see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [51 Cal.Rptr.2d 444, 913 P.2d 473]; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [35 Cal.Rptr.2d 669, 884 P.2d 126].)
*678As the majority itself notes, Kraus makes clear that “the only monetary relief available in a UCL action is restitution.”5 (Maj. opn., ante, at p. 666, fn. 7.) Others agree: “In Kraus, the court held that restitution to direct victims is the only monetary remedy available under the UCL.” (Karas, The Role of Fluid Recovery in Consumer Protection Litigation: Kraus v. Trinity Management Services (2002) 90 Cal. L.Rev. 959, 971-972 (hereafter Karas).) But if there is any lingering doubt on this point, the dispositive ruling in Kraus reads as follows: “[T]he order for disgorgement of the liquidated damages/security fees may be enforced only to the extent that it compels restitution to former tenants.” (Kraus, supra, 23 Cal.4th at p. 138.) And, earlier, the court defined “restitution orders” as meaning, and meaning only, “orders compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken.” (Id. at pp. 126-127.)
The majority states: “If the trial court’s ruling that the UCL claim could not be maintained as a class action as a matter of law is legally flawed, no other basis remains for sustaining the court’s ruling.” (Maj. opn., ante, at p. 658.) This statement is flatly wrong for two reasons. First of all, it confuses the trial court’s “ruling” with one of two bases it articulated in support of that ruling.6 Its “ruling” was that 17 words should be stricken from the third amended complaint; what the majority is criticizing is the second of two stated bases for that ruling. Second, the “basis [that] remains for sustaining the court’s ruling” is, to quote the order in question: “Kraus holds that disgorgement of allegedly ill-gotten profits is a remedy only insofar as it is a mechanism to permit restitution of funds. . . . This does not preclude the possibility of . . . the use of disgorgement as a mechanism to effect restitution.”
I respectfully pose the following questions:
(1) If the majority is so anxious to reverse the lower court’s November 8 ruling, shouldn’t we just order the 17 disgorgement-related words restored to the complaint? But how can that be after Krausl
(2) If the case is returned to the trial court pursuant to the present order, what would possibly be wrong with its issuing precisely the same order it *679did previously—i.e., striking the same 17 words—but omitting any language concerning the incompatibility of representative UCL actions and class actions and, instead, justifying the order solely on its first-stated basis?
C. The Petition Should Be Denied Because Petitioner Is Not “Typical”
At the minimum, consideration of the important issues addressed in the majority opinion should at least await a case in which the record does not include—as this record does—an explicit factual finding by the trial court that the plaintiff seeking class representative status is not “typical.”
It will be recalled that, in its December 24 ruling denying class certification as to the first four causes of action, the trial court, relying on petitioner’s own deposition testimony, specifically agreed with the defendants’ contention that he “is not a typical plaintiff’ because he “never read the financing contract and does not recall the transaction.”
There is no challenge to this ruling by petitioner in the record before us. But even if there were, a trial court’s denial of class certification based, e.g., on findings that a putative class representative is not typical or that there are insufficient common questions of law or fact, is generally reviewable under an abuse of discretion standard of review. (See, e.g., Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 914 [103 Cal.Rptr.2d 320, 15 P.3d 1071] (Washington Mutual); Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1233 [87 Cal.Rptr.2d 346].) I submit there is no possible basis for finding any abuse of discretion in the trial court’s determination that petitioner is not typical of the putative class. This was the second time this trial court had entertained a motion for class certification in this action and, clearly, it carefully examined the record before it, including specifically petitioner’s deposition.
Petitioner and the majority have an answer to this: they contend that the issue of “typicality” will necessarily be determined under a far more liberal standard as and when a UCL claim is considered for class action status. (See, e.g., maj. opn., ante, at p. 671 and fn. 10.) There are two things wrong with this proposition. In the first place, bearing in mind UCL substantive law on the lack of any need for damage, standing, reliance, etc. (see post, at p. 682), if petitioner and the majority are correct, it will mean that a “typical” UCL class action plaintiff could be, literally, anyone putative class counsel dragoons off the street. Second, this liberal standard was not the way petitioner’s counsel pled typicality; that topic was addressed in a single paragraph of his third amended complaint in words expressly applicable to all causes of action.
*680On these two bases, it seems to me inconceivable that petitioner would ever be found “typical” even z/his UCL claim could be certified as a class action. For this additional reason, therefore, the petition should be denied.
II. Representative UCL Actions and Class Actions Are Fundamentally Inconsistent
Regarding the substantive issue of whether representative UCL actions and class actions are compatible, I start with a single sentence from a footnote of a very recent Court of Appeal case, a case like ours antedating both Kraus and Cortez. In Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1290, fn. 3 [119 Cal.Rptr.2d 190] (Mass Mutual), the court put the whole matter very succinctly: “As Mass Mutual points out, a representative action under the UCL is different from a class action.” I agree, but I would go a bit further. I believe the differences between class actions brought under Code of Civil Procedure section 382 and representative UCL actions brought under section 17204 are so substantial that the two are mutually inconsistent.
Of course, class action law is totally procedural; neither Code of Civil Procedure section 382, the later-enacted Code of Civil Procedure section 384, nor any case interpreting or applying those sections, purport to lay down substantive legal standards.7 The UCL, by contrast, contains both substantive and procedural provisions. Section 17200 is the substantive provision and sections 17203 and 17204 the principal procedural ones.
Section 17203 provides that a court may enjoin unfair competition, i.e., a violation of section 17200 and, in the process, may order relief “as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.” Section 17204 then provides that an action brought to enforce the UCL is one to enforce public, not private, rights. It reads, in pertinent part: “Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or . . . by any person acting for the interests of. . .the general public.” (Italics added.)8
In recent years, actions by private individuals or groups brought under section 17204 have been labeled “representative actions.” (See, e.g., Kraus, *681supra 23 Cal.4th at pp. 126-138.) In the leading case of People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 17 [141 Cal.Rptr. 20, 569 P.2d 125] (Pacific Land Research), our Supreme Court described the essentially “public good” nature of a such an action: “An action filed by the People seeking injunctive relief and civil penalties is fundamentally a law enforcement action designed to protect the public and not to benefit private parties. The purpose of injunctive relief is to prevent continued violations of law and to prevent violators from dissipating funds illegally obtained. Civil penalties, which are paid to the government [citations] are designed to penalize a defendant for past illegal conduct. The request for restitution on behalf of vendees in such an action is only ancillary to the primary remedies sought for the benefit of the public. [Citation.] While restitution would benefit the vendees by the return of the money illegally obtained, such repayment is not the primary object of the suit, as it is in most private class actions.”
That analysis applies even when the UCL action is brought by a private citizen. As one group of knowledgeable authors has written: “While B&P section 17203 representative actions can be brought by both public officials and private parties, no distinction has been made between the two types of plaintiffs in interpreting either the substantive prohibitions of B&P section 17200 or the injunctive or restitutionary remedies available under section 17203. Because dozens of reported appellate court opinions have considered representative action law, the lack of distinction is settled, and opinions interpreting section 17200 in cases brought by public officials are fully applicable to private representative actions.” (McCall et al., Greater Representation for California Consumers—Fluid Recovery, Consumer Trust Funds, and Representative Actions (1995) 46 Hastings L.J. 797, 816-817, fn. omitted.)
Quite obviously, our Supreme Court agrees. Four years ago, not only a large business respondent, but also numerous amici curiae (including the California Chamber of Commerce) and the Attorney General urged the court to rule that only “public prosecutors” could sue under the UCL to enforce the Penal Code’s ban on sales of cigarettes to minors. The court rejected this request, expressly declining the “invitation judicially to categorize potential plaintiffs as qualified or unqualified to maintain UCL claims on behalf of the general public. The Legislature has expressly provided that ‘any person’ [citation] may maintain such a suit, and—it need hardly be noted—should the Legislature disagree with our conclusion here, it remains free to provide otherwise.” (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 578 [71 Cal.Rptr.2d 731, 950 P.2d 1086]; see also Kasky v. *682Nike, Inc. (2002) 27 Cal.4th 939, 949-950 [119 Cal.Rptr.2d 296, 45 P.3d 243].)
In contrast to representative UCL actions, class actions are fundamentally private actions seeking (at least usually) to recover damages in tort or contract suffered by a large number of similarly situated private citizens. In order to proceed under Code of Civil Procedure section 382, there must be both “an ascertainable class” and “a well defined community of interest in the questions of law involved affecting the parties to be represented.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 704 [63 Cal.Rptr. 724, 433 P.2d 732]; see also Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [97 Cal.Rptr.2d 179, 2 P.3d 27] (Linder).) “The community of interest requirement involves three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’ [Citation.]” (Linder, supra, 23 Cal.4th at p. 435; see also Mass Mutual, supra, 97 Cal.App.4th at p. 1287.) Another relevant consideration is whether “each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery . . . .” (Linder, supra, 23 Cal.4th at p. 435.) Additionally, our Supreme Court has instructed trial courts “ ‘to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts.’ ” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385 [134 Cal.Rptr. 393, 556 P.2d 755].)
Thus, there are at least two fundamental differences between representative UCL actions and class actions. First of all, the former are brought under a specific statute to benefit the public, whereas the latter are basically private actions. Second, the purposes of the former are deterrence and restitution while the primary goal of the latter is to provide a procedural mechanism whereby a large number of private plaintiffs may recover damages. The two types of actions are not interchangeable; as our Supreme Court has recently observed: “A UCL action is . . . not an all-purpose substitute for a tort or contract action.” (Cortez, supra, 23 Cal.4th at p. 173.)
Even aside from these fundamental differences, there are many specific differences between the two types of actions. I will list 10 that come to mind:9
1. There is no need to show “standing” in a UCL action. For example, a UCL plaintiff does not even have to have been harmed. Similarly, actual damages to the plaintiff need not be shown nor any reliance regarding alleged misrepresentations. All of these things must, of course, be shown in *683a class action; further, the plaintiffs damages must be “typical” of the class to be represented. (See Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at p. 567; Pacific Land Research, supra, 20 Cal.3d at p. 18, fn. 7; Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839 [33 Cal.Rptr.2d 438]; Consumers Union of United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433, 1439-1444 [257 Cal.Rptr. 151]; Mass Mutual, supra, 97 Cal.App.4th at p. 1288; Karas, supra, 90 Cal. L.Rev. at pp. 968, 979-980).
2. The intent of the defendant and the knowledge of customers generally regarding the unfair competitive practice are both unimportant in UCL actions. (See Chern v. Bank of America (1976) 15 Cal.3d 866, 876 [127 Cal.Rptr. 110, 544 P.2d 1310].) Additionally, all that need be shown in UCL actions is that the challenged business practice is likely to deceive consumers, not that it has actually done so. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 [197 Cal.Rptr. 783, 673 P.2d 660]; Mass Mutual, supra, 97 Cal.App.4th at p. 1289.) By contrast, plaintiffs in class actions alleging fraud “bear the traditional burden of required of victims of common law fraud.” (Mass Mutual, supra, 97 Cal.App.4th at p. 1288.)
3. In class actions, damages may be sought; not so in representative UCL actions. In those actions, the only monetary relief available is restitution. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179 [83 Cal.Rptr.2d 548, 973 P.2d 527]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266 [10 Cal.Rptr.2d 538, 833 P.2d 545]; People v. Superior Court (Jayhill) (1973) 9 Cal.3d 283, 286 [107 Cal.Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191] (Jayhill); Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 774 [259 Cal.Rptr. 789] (Dean Witter).) And restitution “is not the primary object of the suit, as it is in most private class actions.” (Pacific Land Research, supra, 20 Cal.3d at p. 17.)
4. In class actions, numerous procedural protections exist to protect a defendant from possible multiple actions; no such protections apply in representative UCL actions. “[A] representative UCL action is not subject to the same level of judicial supervision as a class action . . . .” (Kraus, supra, 23 Cal.4th at p. 137; see also Pacific Land Research, supra, 20 Cal.3d at pp. 17-18.)
5. In class actions, disgorgement into a fluid recovery fund is permissible and appropriate. (Code Civ. Proc., § 384, subd. (b).) In representative *684UCL actions, any disgorgement over and above basic restitution is not available. (See Kraus, supra, 23 Cal.4th at pp. 125-126, 137-138.)
6. Punitive damages are not recoverable in an action brought under the UCL. (Jayhill, supra, 9 Cal.3d at p. 287.) They clearly are in class actions.
7. The UCL was and is intended to provide a “streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.” (Dean Witter, supra, 211 Cal.App.3d at p. 774, quoted approvingly in Cortez, supra, 23 Cal.4th at pp. 173-174.) “In contrast to the streamlined procedure expressly provided by the Legislature, the management of a class action is ‘a difficult legal and administrative task.”’ (Dean Witter, supra, 211 Cal.App.3d at p. 773, quoting Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 143 [191 Cal.Rptr. 849].) Thus, in many ways, class actions are “procedurally quite different from UCL actions” because, among other things, “without the notice and certification requirements of class actions, UCL suits may move much more swiftly to settlement or trial than class actions.” (Karas, supra, 90 Cal. L.Rev. at pp. 964, 969.)
8. “[Ujnlike class actions, private settlements of UCL actions only bind the individual who brought the action, not the entire plaintiff class.” (Karas, supra, 90 Cal. L.Rev. at p. 969.)
9. There is no notice requirement in UCL actions, whereas in class actions “potential claimants would receive notice of the lawsuit and would have the opportunity to come forward and show their entitlement to recovery in a particular amount.” (Karas, supra, 90 Cal. L.Rev. at p. 985, fn. 164.)
10. A defendant in a class action may, of course, insist upon a determination of the composition of the class before an adjudication on the merits; he has no similar rights under the UCL, even if the action does not seek restitution. (Pacific Land Research, supra, 20 Cal.3d at p. 18.)
Because of these numerous differences, several reported cases agree with Mass Mutual that the two types of actions are, indeed, “different.” (Mass Mutual, supra, 97 Cal.App.4th at p. 1290, fn. 3.) For example, in Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 72 [164 Cal.Rptr. 279], the court noted: “ ‘Nor is an action on behalf of the general public, prosecuted by a private attorney general, to be confused with a class action, wherein damage to the representative plaintiff is required.’ ” (See also, to the same effect, Consumers Union of United States, Inc. v. Fisher Development, Inc., supra, 208 Cal.App.3d at p. 1439.)
*685And in Pacific Land Research, Justice Mosk wrote for a unanimous court: “[W]e do not agree that consumer protection actions brought by the People, seeking injunctive relief, civil penalties and restitution, are the equivalent of class actions brought by private parties, requiring the same safeguards to protect a defendant from multiple suits and other harmful consequences. [¶] . . . [¶] Furthermore, an action by the People lacks the fundamental attributes of a consumer class action filed by a private party. The Attorney General or other governmental official who files the action is ordinarily not a member of the class, his role as a protector of the public may be inconsistent with the welfare of the class so that he could not adequately protect their interests [citation] and the claims and defenses are not typical of the class [citation].” (Pacific Land Research, supra, 20 Cal.3d at pp. 17-18, fns. omitted.)10
Most recently, in the course of holding that the remedy of disgorgement of wrongly collected monies into a fluid recovery fund was not permitted under the UCL, the Kraus court used wording which seems to confirm that it regards the two forms of action as, indeed, “different.” It wrote: “Nonetheless, reading section 17203 as permitting orders for disgorgement into a fluid recovery fund would be inconsistent with the Legislature’s decision to expressly authorize fluid recovery in class actions and to provide that Consumers Legal Remedies Act [citation] suits on behalf of the plaintiff and other similarly situated consumers may be brought as class actions, not representative actions, while failing to authorize fluid recovery in representative UCL actions. [¶] In sum, the Legislature has not expressly authorized monetary relief other than restitution in UCL actions, but has authorized disgorgement into a fluid recovery fund in class actions. Although the Legislature is well aware of the distinction between class actions and representative actions, it has not done so for representative UCL actions.” (Kraus, supra, 23 Cal.4th at p. 137, italics added.)
Even Justice Werdegar, dissenting from the holding of Kraus, noted the many inconsistencies between the two types of actions: “UCL actions often are formally incompatible with class treatment, as class plaintiffs must be ‘truly representative of the absent, unnamed class members’ [citation] while, in keeping with the UCL’s broad remedial purposes, a private party has UCL standing regardless of whether he or she is directly aggrieved. [Citations.]” (Kraus, supra, 23 Cal.4th at p. 147 (dis. opn. of Werdegar, J.).)
The majority’s response is that neither Kraus, Cortez nor any other precedent has explicitly held that class action relief is “incompatible” with a *686representative UCL action (maj. opn., ante, at pp. 655, 658, 660, 663) or that the two types of actions are “mutually exclusive.” (Maj. opn., ante, at p. 655.) I concede that there is no such explicit precedent. I also concede the majority’s point that, apparently, a number of trial courts have permitted UCL actions to be certified as class actions. But a combination of (1) the language in Kraus, especially that quoted above, and (2) a consideration of the many fundamental and specific differences between class actions and representative UCL actions (I have listed several above—there are undoubtedly others) convinces me that the two actions are not only “different” (Mass Mutual, supra, 97 Cal.App.4th at p. 1290, fn. 3), but incompatible.
A recent decision in a representative UCL action demonstrates how just one of the many inconsistencies between these two types of actions precludes any overlap between them. In Prata v. Superior Court (2001) 91 Cal.App.4th 1128 [111 Cal.Rptr.2d 296] (Prata), a panel of the Second District issued a writ of mandate directing the superior court to vacate an order that the petitioner could not bring a representative action under the UCL against a bank for an allegedly deceptive and misleading marketing campaign for a credit-card financing program. One of the arguments of the defendant bank was that the petitioner was not a proper representative of other consumers because, among other things, he had “refused to pay” the allegedly improper finance charges and hence “is not entitled to individual restitution.” (Id. at p. 1139.) The court rejected this argument, noting that a UCL violation “ ‘can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage.’ [Citation.]” (Id. at p. 1146.)
But consider what would have happened had the plaintiff in Prata been seeking class certification. Which body of precedent would apply, that requiring a class representative to have suffered damage typical of the putative class or that holding that no such showing is required for a representative UCL action? Similarly, would representative UCL precedent or class action precedent apply if the issue before the trial court was reliance? And what about protection from multiple suits after a judgment or settlement of a prior class/UCL action—which would apply, class action law clearly protecting defendants from multiple liability or the holding of Pacific Land Research that representative UCL actions do not require “the same safeguards to protect a defendant from multiple suits and other harmful consequences”? (Pacific Land Research, supra, 20 Cal.3d at p. 17.)
The majority strongly implies that as and when a UCL action is certified as a class action, UCL law “trumps” otherwise inconsistent class action law. Thus, the majority suggests that UCL law should prevail over class action *687law regarding (1) “individualized proof of deception, reliance, and injury” and (2) regarding the typicality of the plaintiff. On the latter issue (a key one in this case—see pt. I. C., ante) the majority strongly implies that the more liberal UCL standard will control. (Maj. opn., at pp. 670-673.)
These holdings are, first of all, inconsistent with the majority’s holding approving disgorgement into a fluid recovery fund in a UCL class action.11 Additionally, they would clearly create a procedural nightmare for a trial court. The instant case is a classic example: this petitioner has already been ruled “non-typical” regarding his first four causes of action. But suppose he is “typical” for the UCL cause of action under the majority’s suggested liberalized standard. The trial court then has to try a case which is a class action as to one of five causes of action but only an individual action to the other four. I am perplexed that the majority does not perceive the huge number of procedural and evidentiary problems inherent in such a bizarre situation. Similarly, the majority would countenance class certification and relief for a UCL claim in the absence of evidence of actual deception, although both would be inappropriate for all other causes of action. Finally, after oral argument in this matter, I am clearly not pushing the envelope too far by suggesting that the majority’s implied liberalized standard could well apply to the core issue in class actions, the commonality of questions of law and fact.12
All of the foregoing assumes that the action at issue is a “representative UCL action.” There remains the question of whether all actions brought under the UCL are such. The first time our Supreme Court used the phrase “representative UCL actions” in Kraus, it footnoted the term and said in the footnote: “We use the term ‘representative action’ to refer to a UCL action that is not certified as a class action in which a private person is the plaintiff and seeks disgorgement and/or restitution on behalf of a person other than or in addition to the plaintiff.” (Kraus, supra, 23 Cal.4th at p. 126, fn. 10.)
This footnote seems to suggest that there can, indeed, be a nonrepresentative UCL action in which the plaintiff does not purport to represent the public good. One example of such an action is where a plaintiff sues under the UCL to collect restitutionary sums, and nothing more. Exactly this was sanctioned in the recent case of Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1045-1047 [111 Cal.Rptr.2d 260]. Another *688example is where a plaintiff alleging actual injury typical of a large group of potential litigants sues under multiple statutes, among them section 17200, but does not seek an injunction to enforce the public good but only monetary relief of various types. Examples of this sort of nonrepresentative UCL actions may well be Mass Mutual and Washington Mutual. In Mass Mutual, several plaintiffs alleged that they had purchased a particular type of “vanishing premium” life insurance policy and that the defendant had, in violation of both the UCL and the Consumers Legal Remedy Act, failed to disclose to any of the purchasers of these policies its plans to “ratchet down” the dividend payable on it. (Mass Mutual, supra, 97 Cal.App.4th at p. 1286.) As far as can be determined from the opinion, the only relief sought was monetary class action relief.13
Similarly, in Washington Mutual a single plaintiff sued a mortgage lender “on behalf of herself and all others similarly situated” on five causes of action, including one under the UCL. (Washington Mutual, supra, 24 Cal.4th 906.) Again, as far as can be determined from the court’s opinion, the only relief sought on behalf of the putative class was monetary.
Significantly, Justice Epstein, writing for a unanimous court in Prata, recognized that an action alleging a violation of section 17200 can be of two types: a representative action or one asserting “an individual cause of action.” (Prata, supra, 91 Cal.App.4th at p. 1139.) The former, he suggested, are those brought under section 17204, while the latter are those brought under section 17203. (Prata, at p. 1138.)
The instant case was filed under section 17204 and clearly qualifies as a representative UCL action. The third amended complaint includes two paragraphs making this clear. Paragraph 68 of the fifth cause of action alleges that “Under Business & Professions Codes [sic] §§ 17201 and 17204, Plaintiff asserts standing on behalf of himself and on behalf of the general public.” (Italics added.) Paragraph 72 follows on from this and alleges: “Defendants’ unlawful conduct, unless and until enjoined and restrained by order of this court, will cause great and irreparable injury to the public . . . .” I submit that these allegations make clear that this petitioner has—deliberately and consciously—brought a representative UCL action.
*689In support of its contrary argument, the majority relies substantially on Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442 [153 Cal.Rptr. 28, 591 P.2d 51] (Fletcher).14 In that case, the court held that the trial court erred in dismissing a class action seeking to recover restitution from a bank based on lending practices alleged to be deceptive under section 17535. I don’t believe Fletcher is controlling here for several reasons.
First of all, Fletcher was decided long before the court started articulating the differences between representative UCL actions and class actions, as it clearly did in Kraus and Cortez. Second, and probably more importantly, all the majority opinion in Fletcher held is that it was unnecessary for each of the over 50,000 bank customers composing the alleged class to have personal knowledge of the offending interest-calculation policy of the defendant bank for the case to proceed as a class action. On that point, the court held that “the trial court in the instant case erroneously determined that an order of restitution under section 17535 must be predicated upon individualized proof of lack of knowledge.” (Fletcher, supra, 23 Cal.3d at p. 454.) Third, nowhere in Fletcher did the majority even mention section 17204, much less the underlying nature of a “representative UCL action.” Finally, citing Jayhill and seemingly anticipating the decades-later holding of Kraus, the Fletcher majority strongly hinted that an action seeking injunctive relief and restitution as ancillary relief could well be preferable to a class action for the sorts of claims at issue in that case. (Fletcher, supra, 23 Cal.3d at pp. 453-454.)
Finally, it is noteworthy in all of this that our Legislature, notwithstanding numerous amendments to the UCL (well documented by the majority), has never authorized class action relief under it. If the Legislature had wanted to somehow marry these two different types of actions, it could have done so long ago. It is not for this court to do so for it now.
*690III. Even if Representative UCL Actions and Class Actions Are Ever Compatible, Fluid Recovery Is Not Available Under the UCL
At one point in its opinion, the majority concedes that it was “settled in Kraus” that “the only monetary relief available in a UCL action is restitution.” (Maj. opn., ante, p. 666, fn. 7.) But then the majority goes on to contend, indeed quite aggressively, that disgorgement into a fluid recovery fund would be available as and when a UCL action is certified as a class action. (See, e.g., maj. opn., ante, pp. 655, 659-660, 667-668, 670.)
That proposition is wrong for two separate and distinct reasons. First of all, it contradicts the express ruling of Kraus, which reads: “For all of these reasons we conclude that section 17203 does not authorize orders for disgorgement into a fluid recovery fund.” (Kraus, supra, 23 Cal.4th at p. 137.) Although presumably conscious of this sentence, the majority wishes to append to it the words “unless the action is certified as a class action.” But that’s not what the Kraus court wrote nor, plainly, what it meant. Kraus came to the conclusion just quoted based on the previously well-established principle that the only form of monetary relief available under the UCL was restitution. (See, e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th at p. 179; Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1266; Jayhill, supra, 9 Cal.3d at p. 286; Dean Witter, supra, 211 Cal.App.3d at p. 774 (Kline, P. J. conc.).)
As the trial court recognized in its ruling striking the disgorgement allegations from the third amended complaint, disgorgement in excess of restitution is unavailable in a representative UCL action. Thus, in its conclusion on the disgorgement issue the Kraus court ruled: “[T]he order for disgorgement of the liquidated damages/security fees may be enforced only to the extent that it compels restitution to former tenants. “ (Kraus, supra, 23 Cal.4th at p. 138, italics supplied.) And Kraus explicitly defines an order requiring restitution as one “compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.” (Id. at pp. 126-127.)15 The majority totally fails to grasp this aspect of Kraus: not only *691is disgorgement into a fluid recovery fund unavailable under the UCL, but so is any disgorgement over and above restitution.16
Second, the majority’s holding regarding disgorgement into a fluid recovery fund misses the point that even before Kraus the law was clear that the availability of fluid recovery is not dependent on whether the action is certified as a class action, but on the underlying substantive law at issue. If that substantive law permits fluid recovery, fine; if it does not then the fact that it is a class action does not matter. There are a number of binding precedents to this effect, the leading one being State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460 [224 Cal.Rptr. 605, 715 P.2d 564] (Levi Strauss). The issue before the court there was whether or not to approve a class action settlement—including a fluid recovery provision—in a Cartwright Act case. Before ruling on that issue, the court held: “The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action.” (Id. at p. 472.)
This court quoted these words and relied upon the principle they articulate in Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62, 74 [231 Cal.Rptr. 638] (Kline, P. J. conc.). But now, apparently wishing to avoid Levi Strauss, the majority declares that case has “limited relevance to the issue here” because it preceded enactment of what is now Code of Civil Procedure section 384. (Maj. opn., ante, at p. 667.) Our Supreme Court may be surprised to learn this. It apparently still finds the rule that the “propriety of fluid recovery” depends upon the “underlying cause of action” to be still relevant, because it quoted exactly those words from Levi Strauss two years ago in Kraus. (See Kraus, supra, 23 Cal.4th at p. 135.)
Nor, clearly, did our Legislature intend to reduce Levi Strauss to “limited relevance” when it enacted what is now Code of Civil Procedure section 384 in 1993. In fact, both that statute (which, of course, is purely procedural anyway17) and its legislative history demonstrate that the Legislature intended to preserve the “underlying cause of action” principle of Levi Strauss. For example, Code of Civil Procedure section 384, subdivision (a) (enacted in 1993 as § 383, subd. (a)), reads in pertinent part: “It is the intent of the Legislature in enacting this section to ensure that the unpaid residuals in class action litigation are distributed, to the extent possible, in a manner designed either to further the purposes of the underlying cause of action, or to promote justice for all Californians . . . .” (Italics added.) And the following provision, Code of Civil Procedure section 384, subdivision (b), also links fluid recovery to the “underlying cause of action.”
*692The legislative history of (now) Code of Civil Procedure section 384 further undermines the majority’s “limited relevance” gambit. For example, numerous bill analyses and legislative committee reports regarding (now) Code of Civil Procedure section 384 not only cite Levi Strauss but also reference its “excellent discussion of the ‘appropriate methods for distributing damages in consumer class actions.’” (E.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 536 (1993-1994 Reg. Sess.) as amended Sept. 9, 1993, p. 2.) These same reports and analyses also include statements to the effect that the proposed legislation “will permit a court to distribute the unclaimed funds in any manner which the court determines is consistent with the objectives and purposes of the underlying causes of action.” (Sen. Rules Com., Off. of Sen. floor Analyses, Analysis of Sen. Bill No. 536 (1993-1994 Reg. Sess.) Sept. 10, 1993, p. 4.)
Thus, notwithstanding the majority’s cavalier treatment of Levi Strauss, in enacting what is now Code of Civil Procedure section 384 our Legislature obviously did not intend to alter that case’s rule that the underlying substantive cause of action must justify liquid recovery. After Kraus, clearly the UCL does no such thing.
Although I believe the majority’s opinion is incorrect for each of the reasons detailed above, I do not find its errors to be of similar magnitude. Thus, regarding whether class actions and representative UCL actions are incompatible, I concede that the law and current practice in this state are unclear. And regarding two other issues discussed above, the appropriateness of writ relief on this record and the lower court’s finding of petitioner’s nontypicality, although I believe the majority’s views on them to be wrong, they will not cause me many sleepless nights. The majority’s truly egregious errors lie in (1) its refusal to distinguish between the order of the superior court we are reviewing and the second of two reasons the court proffered in support of that order and (2) its unabashed advocacy of the proposition that fluid recovery is compatible with a representative UCL cause of action notwithstanding our Supreme Court’s two-year-old six-to-one ruling in Kraus quite to the contrary.
The petition of real parties in interest for review by the Supreme Court was denied December 11, 2002. Chin, J., did not participate therein. Baxter, J., and Brown, J., were of the opinion that the petition should be granted.
Although the matter is not clear from the record before us, presumably this denial was of a motion related to a second amended complaint, a document not provided us by any party.
All subsequent statutory references are to the Business and Professions Code unless otherwise noted.
This motion was apparently filed on November 26, 2001, but it is not in the record before us. Thus, we are left only with the description of it provided by the trial court in its December 24 order.
This second denial of a motion for class certification did not implicate petitioner’s UCL cause of action. At one point, the majority acknowledges this; it says petitioner “filed a renewed motion for class certification on all of his causes of action except for his UCL claim.” (Maj. opn., ante, at p. 657; see also maj. opn., ante, at p. 672.) Later, however, it confuses matters by seeming to characterize the order under review (partially granting a motion to strike) as “an order granting or denying class certification.” (Maj. opn., ante, at p. 658.
Although, as I point out later (see post, at pp. 690-692), the majority promptly contradicts this statement when it aggressively advocates permitting the marriage of a representative UCL action and fluid recovery. (See, e.g., maj. opn., ante, at pp. 655, 659-660, 667-668, 670.)
The majority repeats this error in its conclusion and dispository order. It says: “[T]he trial court erred when it ruled that Corbett may not bring a class action for the UCL claim as a matter of law” and then orders that court “to vacate its order refusing to consider a class action under the UCL . . . .” (Maj. opn., ante, at p. 673.) But that was not the trial court’s “order,” only one of the bases offered in explanation of it.
“Class actions are provided only as a means to enforce substantive law. Altering the substantive law to accommodate procedure would be to confuse the means with the ends—to sacrifice the goal for the going.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462 [115 Cal.Rptr. 797, 525 P.2d 701, 76 A.L.R.3d 1223]; see also Vernon v. Drexel Burnham & Co. (1975) 52 Cal.App.3d 706, 716 [125 Cal.Rptr. 147].)
Section 17201 provides that the term “person” includes natural persons.
Practically none of which, I regret to note, the majority addresses.
As noted above (see ante, at p. 681), these words clearly apply to both actions brought by a law enforcement official and by a “private attorney general.” (See, e.g., Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at pp. 574-578.)
There is one element of consistency between the majority’s handling of the fluid recovery issue and the other differences between UCL law and class action law: both of its positions are favorable to UCL plaintiffs.
At oral argument, petitioner’s counsel argued that in a UCL/class action the issue of the commonality of issues of law and fact would necessarily be more relaxed.
This may well be why the Mass Mutual court made such a careful point of distinguishing the case before it from Prata, supra, 91 Cal.App.4th 1128. Prata, it specifically noted, was a “representative action under the UCL,” and it then dropped its pregnant footnote noting that “a representative action under the UCL is different from a class action.” (Mass Mutual, supra, 97 Cal.App.4th at p. 1290, fn. 3.) The corollary of this would seem to be that a non-representative action under the UCL, i.e., one brought—at least partially—because of an alleged violation of section 17200 by a typical plaintiff or plaintiffs having classic standing, and not seeking to enforce the public good pursuant to section 17204, may well qualify for class action status.
The majority also cites our holdings in Dean Witter, Washington Mutual, and Mass Mutual as impliedly indicating there is some overlap between the two types of actions. I disagree. The core of our holding in Dean Witter was that the UCL claims of that plaintiff “should not proceed as a class action” because the fundamental differences between such an action and a UCL action strongly suggested that a class action would never provide “a superior method for adjudicating the unfair competition claims.” (Dean Witter, supra, 211 Cal.App.3d at p. 773.) And in Washington Mutual, supra, 24 Cal.4th 906, a unanimous court held that the trial court had improperly certified a class in a multi-cause of action case. The entire thrust of the court’s holding related to choice of law and selection-of-applicable-law issues; nary a word was said about whether the inclusion of a section 17200 cause of action among those certified for class treatment was or was not a problem. And, as noted above, neither it nor Mass Mutual appears to have been a representative UCL action filed under section 17204. Rather, both seem to have been multi-cause-of-action suits brought by a typical plaintiff and including a cause of action based substantively on section 17200 and seeking monetary relief under section 17203.
For more regarding what restitution does and does not entail, see Day v. AT&T Corp. (1998) 63 Cal.App.4th 325, 338-339 [74 Cal.Rptr.2d 55], Cortez, supra, 23 Cal.4th at pages 177-178 (“[R]estitutionary awards encompass quantifiable sums one person owes to another . . . .”) and Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at page 581 (conc. opn. of Baxter, J.).
Unlike the majority, a California federal district court understood Kraus to hold exactly this. (See Watson Laboratories, Inc. v. Rhone-Poulenc Rorer, Inc. (C.D.Cal. 2001) 178 F.Supp.2d 1099, 1121-1122.)
See footnote 7, ante.