Abbott Laboratories v. Super. Ct. ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
ABBOTT LABORATORIES et al.,
Petitioners,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
THE PEOPLE ex rel. TONY RACKAUCKAS, as District
Attorney, etc.,
Real Party in Interest.
S249895
Fourth Appellate District, Division One
D072577
Orange County Superior Court
30-201600879117-CU-BT-CXC
June 25, 2020
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger and Fujisaki* concurred.
*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
Justice Kruger filed a concurring opinion, in which Chief
Justice Cantil-Sakauye and Justice Corrigan concurred.
ABBOTT LABORATORIES v. SUPERIOR COURT
S249895
Opinion of the Court by Liu, J.
The Orange County District Attorney (District Attorney)
brought this action against several pharmaceutical companies,
alleging that the companies had intentionally delayed the sale
of a generic version of a popular pharmaceutical drug to
maximize their profits at the expense of consumers throughout
California. The companies moved to strike references to
“California” in the complaint, arguing that the District Attorney
has no jurisdiction to enforce California’s consumer protection
laws outside the geographic boundaries of Orange County. After
the trial court denied the motion to strike, the companies
obtained an order from the Court of Appeal directing the trial
court to grant the motion.
The People, as real party in interest and represented by
the District Attorney, have asked this court to determine
whether the District Attorney’s authority to enforce California’s
consumer protection laws under the auspices of the unfair
competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) is
limited to the county’s borders. We hold it is not: The UCL does
not preclude a district attorney, in a properly pleaded case, from
including allegations of violations occurring outside as well as
within the borders of his or her county.
I.
The District Attorney initiated this action by filing a
complaint in the name of the People of the State of California
against Abbott Laboratories, AbbVie Inc., Teva
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Pharmaceuticals USA, Inc.; Barr Pharmaceuticals, Inc;
Duramed Pharmaceuticals Inc.; and Duramed Pharmaceutical
Sales Corp. (collectively, Abbott). The complaint alleged that
Abbott violated the UCL by entering into agreements to delay
the market debut of generic versions of Niaspan, a prescription
drug used to treat high cholesterol. As a result, the District
Attorney alleges, users of Niaspan, their insurers, public health
care providers, and other government entities paid substantially
higher prices for Niaspan than they would have if the generic
version had been available without improper delay. The District
Attorney sought an injunction prohibiting Abbott from further
violating the UCL and an order for restitution and civil
penalties, including treble penalties for violations that injured
senior citizens or disabled persons. (Bus. & Prof. Code,
§§ 17203, 17206, 17206.1; Civ. Code, § 3345; all undesignated
statutory references are to the Business and Professions Code.)
Abbott, in turn, filed a motion to strike “claims for
restitution and civil penalties to the extent that those are not
limited to Orange County.” Noting that the District Attorney’s
complaint makes no specific claim to penalties or restitution
extending beyond the bounds of the county, Abbott asked the
trial court to strike 16 references to “California” from the
complaint on the ground that a district attorney’s enforcement
authority under the UCL is limited to the geographic boundaries
of his or her county. According to Abbott, the motion was
intended to “focus” the case, discovery, and scope of any
potential settlement.
The trial court denied the motion to strike, finding
“premature” Abbott’s concerns about the scope of discovery and
financial exposure as well as any enforcement concerns that
might arise if the Attorney General were excluded from a
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negotiated statewide settlement. The court explained: “If
there’s a settlement, I can guarantee you the Attorney General
. . . is going to know about [it]. So, we will deal with that if and
when. . . . There are going to be more players in any kind of
settlement unless there’s a carve-out.” The court did not refer
specifically to the geographic scope of the District Attorney’s
authority during the hearing or in its minute order.
Abbott sought review by means of a writ petition. A
divided Court of Appeal overruled the District Attorney’s
demurrer and granted relief to Abbott, directing the trial court
to vacate its order denying the motion to strike and to enter a
new order striking the allegations under which the District
Attorney sought statewide monetary relief. (Abbott
Laboratories v. Superior Court (2018) 24 Cal.App.5th 1, 31
(Abbott).)
The Court of Appeal observed that “though district
attorneys have plenary authority to pursue actions in the
criminal arena in the State’s name [citation], their ‘authority is
territorially limited’ to the confines of their county.” (Abbott,
supra, 24 Cal.App.5th 1, 19, quoting Pitts v. County of Kern
(1998) 17 Cal.4th 340, 361 (Pitts).) By contrast, “with respect to
civil actions, a district attorney has no plenary power.” (Abbott,
at p. 19.) “Rather, it is settled that a ‘district attorney has no
authority to prosecute civil actions absent specific legislative
authorization.’ ” (Id. at p. 20, quoting People v. Superior Court
(Humberto S.) (2008) 43 Cal.4th 737, 753 (Humberto S.).) As to
whether the UCL grants such authority, the court looked to
People v. Hy-Lond Enterprises, Inc. (1979) 93 Cal.App.3d 734(Hy-Lond), which held that a district attorney has no authority
to limit the powers of the Attorney General or other public
agencies under the guise of UCL enforcement. (Hy-Lond, at
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pp. 752–753.) The Court of Appeal here explained it had “no
difficulty applying Hy-Lond’s principles to bar a district
attorney’s unilateral effort to seek restitution and civil penalties
for UCL violations occurring outside his or her own county
jurisdiction.” (Abbott, at p. 25.)
Writing in dissent, Justice Dato explained that Abbott had
failed to “offer anything approaching an ‘extraordinary reason’
to justify this court’s decision to intervene at the pleading stage”
in order to address “a motion to strike that does not challenge
the plaintiff’s ability to plead a valid claim, but merely seeks to
edit the language of the complaint in a manner that better suits
the defendants’ tactical purposes.” (Abbott, supra, 24
Cal.App.5th at p. 34 (dis. opn. of Dato, J.).) Even if Abbott had
met this threshold showing, Justice Dato continued, “the
majority opinion reaches the wrong result.” (Id. at p. 37 (dis.
opn. of Dato, J.).) According to Justice Dato, it is the court, not
the plaintiff, that awards restitution, and “there is nothing
inherently problematic about the court awarding restitution to
statewide victims of defendants’ unlawful business practice.”
(Ibid.) “[E]ven absent a request by the District Attorney the
court is empowered by section 17203 to award restitution ‘to any
person’ adversely affected by the defendants’ unlawful conduct.
. . . This includes, potentially, residents of counties other than
Orange.” (Ibid., quoting § 17203, italics added by Dato, J.)
Similarly, Justice Dato explained, the court could impose civil
penalties based on any violation proven in the case, within or
outside of Orange County: “The penalties are the punishment
imposed for each violation proved in a law enforcement action
brought on behalf of the People of the State of California. If the
violation is proved, the penalties are appropriately imposed.”
(Abbott, at p. 38 (dis. opn. of Dato, J.).) Finally, Justice Dato
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rejected Abbott’s argument that a district attorney may not bind
the Attorney General in settlement, explaining “it is well
established that the District Attorney’s action will have no res
judicata effect on a private party’s restitution claim, except to
the extent that the party signs a release.” (Id. at p. 37 (dis. opn.
of Dato, J.).)
We granted the District Attorney’s petition for review,
which was limited to the Court of Appeal’s decision to grant writ
relief. The District Attorney did not seek review of the portion
of the Court of Appeal’s opinion overruling the demurrer.
Accordingly, we express no view on the service requirements of
section 17209, as all papers filed in this court have been properly
served upon the Attorney General. (See § 17209 [requiring
service of appellate briefs or petitions in UCL matters on the
Attorney General within three days of filing with the court].)
II.
We review the trial court’s denial of the motion to strike
for abuse of discretion. (Cal-Western Business Services, Inc. v.
Corning Capital Group (2013) 221 Cal.App.4th 304, 309.) To the
extent the decision rested upon a legal determination as to the
scope of the District Attorney’s authority, it is a question of law
subject to de novo review. (Ibid.; see Pitts, supra, 17 Cal.4th at
p. 345.)
A.
The UCL prohibits unfair competition, defined as “any
unlawful, unfair, or fraudulent business act or practice.”
(§ 17200.) The statute’s “purpose is to protect both consumers
and competitors by promoting fair competition in commercial
markets for goods and services.” (Kasky v. Nike, Inc. (2002) 27
Cal.4th 939, 949.) “In service of that purpose, the Legislature
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framed the UCL’s substantive provisions in ‘ “broad, sweeping
language” ’ ” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th
310, 320) to reach “anything that can properly be called a
business practice and that at the same time is forbidden by law”
(Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 113).
“By proscribing ‘any unlawful’ business practice, ‘section 17200
“borrows” violations of other laws and treats them as unlawful
practices’ that the unfair competition law makes independently
actionable.” (Cel-Tech Communications, Inc. v. Los Angeles
Cellular Telephone Co. (1999) 20 Cal.4th 163, 180, quoting State
Farm Fire & Casualty Co. v. Superior Court (1996) 45
Cal.App.4th 1093, 1103.) “ ‘[T]he Legislature . . . intended by
this sweeping language to permit tribunals to enjoin on-going
wrongful business conduct in whatever context such activity
might occur.’ ” (Cel-Tech, at p. 181, quoting American Philatelic
Soc. v. Claibourne (1935) 3 Cal.2d 689, 698.)
To that end, the Legislature has created a scheme of
overlapping enforcement authority. Section 17204 provides that
actions for relief under the UCL may be prosecuted “by the
Attorney General or a district attorney or by a county counsel
authorized by agreement with the district attorney in actions
involving violation of a county ordinance, or by a city attorney of
a city having a population in excess of 750,000, or by a city
attorney in a city and county or, with the consent of the district
attorney, by a city prosecutor in a city having a full-time city
prosecutor in the name of the people of the State of California
upon their own complaint or upon the complaint of a board,
officer, person, corporation, or association, or by a person who
has suffered injury in fact and has lost money or property as a
result of the unfair competition.”
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The UCL grants broad equitable authority to courts to
remedy violations. Section 17203 provides in relevant part:
“Any person who engages, has engaged, or proposes to engage in
unfair competition may be enjoined in any court of competent
jurisdiction. The court may make such orders or judgments,
including the appointment of a receiver, as may be necessary to
prevent the use or employment by any person of any practice
which constitutes unfair competition, as defined in this chapter,
or 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.” Such remedies
are “cumulative . . . to the remedies or penalties available under
all other laws of this state.” (§ 17205.)
While the UCL provides for both public and private
enforcement, authorized public prosecutors have an additional
tool to enforce the state’s consumer protection laws: civil
penalties. “Any person who engages, has engaged, or proposes
to engage in unfair competition shall be liable for a civil penalty
not to exceed two thousand five hundred dollars ($2,500) for
each violation, which shall be assessed and recovered in a civil
action brought in the name of the people of the State of
California by the Attorney General, by any district attorney, by
any county counsel authorized by agreement with the district
attorney in actions involving violation of a county ordinance, by
any city attorney of a city having a population in excess of
750,000, by any city attorney of any city and county, or, with the
consent of the district attorney, by a city prosecutor in any city
having a full-time city prosecutor, in any court of competent
jurisdiction.” (§ 17206, subd. (a).) “The court shall impose a civil
penalty for each violation of [the UCL]. In assessing the amount
of the civil penalty, the court shall consider any one or more of
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the relevant circumstances presented by any of the parties to
the case, including, but not limited to, the following: the nature
and seriousness of the misconduct, the number of violations, the
persistence of the misconduct, the length of time over which the
misconduct occurred, the willfulness of the defendant’s
misconduct, and the defendant’s assets, liabilities, and net
worth.” (§ 17206, subd. (b).) “If the action is brought by a
district attorney or county counsel, the penalty collected shall be
paid to the treasurer of the county in which the judgment was
entered.” (§ 17206, subd. (c); see also § 17207 [similar
provisions for civil penalties against any person who
intentionally violates any injunction prohibiting unfair
competition].)
B.
Abbott argues that this case is controlled by our statement
in Safer v. Superior Court (1975) 15 Cal.3d 230, 236 (Safer) that
“the Legislature has manifested its concern that the district
attorney exercise the power of his office only in such civil
litigation as that lawmaking body has, after careful
consideration, found essential.” According to Abbott, the UCL
contains no legislative finding that statewide enforcement by
district attorneys is “essential” to the purpose of the UCL.
The proceedings at issue in Safer arose when a
farmworkers’ union set up picket lines around the fields of
several Ventura County strawberry growers. (Safer, supra, 15
Cal.3d at p. 233.) The growers filed suit to obtain injunctive
relief against the union and its members, and the trial court
issued a temporary restraining order limiting the spacing and
number of pickets. The next day, the Ventura County Sheriff
arrested a number of participants in ongoing picketing
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activities, charging three with willful disobedience of a lawful
court order, a misdemeanor offense. Then, when the defendants
appeared for jury trial, the district attorney dismissed the
misdemeanor charges and instead served them with orders to
show cause in contempt proceedings initiated under Code of
Civil Procedure section 1209. (Safer, at p. 234.) The net result
of these maneuvers was “to convert a misdemeanor proceeding,
in which defendants had the protection of a jury trial and other
statutory safeguards, into a contempt proceeding, in which
defendants would be stripped of these protections.” (Ibid.) The
defendants demurred and, alternatively, sought jury trial on the
civil charges. The trial court denied relief.
We held that the trial court acted in excess of its
jurisdiction when it permitted the district attorney to prosecute
a contempt proceeding arising from private civil litigation “in
which the district attorney could rest his participation neither
upon standing as a party nor upon statutory authorization.”
(Safer, supra, 15 Cal.3d at p. 233.) Our analysis began with a
survey of instances in which the Legislature empowered a
district attorney to bring a civil action. (Id. at pp. 236–237.)
Observing that none of these authorization statutes “empower a
district attorney to intervene at will in a civil case involving
private parties in an economic dispute” (id. at p. 236), we
discerned a “general mandate” on the part of the Legislature
“that public officers not use their funds and powers to intervene
in private litigation” (id. at p. 237). We held that because the
district attorney was not authorized to intervene in the
underlying labor dispute, the trial court exceeded its jurisdiction
by permitting the district attorney to institute the civil contempt
proceedings. (Id. at pp. 242–243.)
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Opinion of the Court by Liu, J.
Although Safer specifically concerned “a disturbing
instance” of intervention by a public prosecutor in private civil
litigation (Safer, supra, 15 Cal.3d at p. 242), Abbott notes that
we have cited Safer for the general proposition that “a district
attorney has no authority to prosecute civil actions absent
specific legislative authorization.” (Humberto S., supra, 43
Cal.4th at p. 753 & fn. 12 [citing cases]; see Pacific Gas &
Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143,
1155–1156 [citing Safer to explain that if a specific provision of
the Cartwright Act authorizing the district attorney to bring
antitrust actions on behalf of the county or its subdivisions did
not exist, the district attorney would be unable to do so].)
Even assuming Safer established a general requirement
that a district attorney may not pursue civil litigation without
specific legislative authorization, that requirement is satisfied
with regard to a district attorney’s authority to bring a UCL
action. As we explained in People v. McKale (1979) 25 Cal.3d
626, a case concerning a district attorney’s authority to
prosecute violations of the Mobilehome Parks Act (Health & Saf.
Code, § 18200 et seq.) under the UCL: “While [Safer] held a
district attorney may prosecute civil actions only when the
Legislature has specifically authorized, specific power exists in
the instant case. The district attorney is expressly authorized
to maintain a civil action for either injunctive relief or civil
penalties for acts of unfair competition. (Bus. & Prof. Code,
§§ 17204, 17206.)” (McKale, at p. 633.) The question in this case
is not whether the District Attorney can bring “unlawful” UCL
claims predicated on violations of the antitrust laws, but
whether the District Attorney can seek remedies under the UCL
for conduct occurring outside of his county. Safer says nothing
about the scope of remedies that may be sought.
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As to this question, Abbott concedes that the District
Attorney may seek and obtain statewide injunctive relief upon
a sufficient showing before the trial court. This concession
follows directly from the text of the UCL’s provision on
enforcement of injunctive relief. Section 17207, subdivision (a)
provides: “Any person who intentionally violates any injunction
prohibiting unfair competition issued pursuant to Section 17203
shall be liable for a civil penalty not to exceed six thousand
dollars ($6,000) for each violation.” Section 17207, subdivision
(b) then provides that such penalties “shall be assessed and
recovered in a civil action brought in any county in which the
violation occurs or where the injunction was issued.” (Italics
added.) In other words, section 17207 explicitly contemplates
that an injunction issued in one county may operate to prohibit
future violations in another county. “The purpose of such relief,
in the context of a UCL action, is to protect California’s
consumers against unfair business practices by stopping such
practices in their tracks. An injunction would not serve the
purpose of prevention of future harm if only those who had
already been injured by the practice were entitled to that relief.”
(In re Tobacco II Cases (2009) 46 Cal.4th 298, 320.)
There is thus no dispute as to the District Attorney’s
general authority to bring UCL claims or his specific authority
to pursue statewide injunctive relief. The issue here, more
precisely, is whether a civil enforcement action initiated by a
district attorney under the UCL may seek civil penalties for
violations occurring outside of the district attorney’s county as
well as restitution on behalf of Californians who do not reside in
the county. To answer that question, we return to the text and
purpose of the UCL.
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C.
“ ‘ “[O]ur fundamental task is ‘to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute.’ ” ’
[Citation.] As always, we start with the language of the statute,
‘giv[ing] the words their usual and ordinary meaning [citation],
while construing them in light of the statute as a whole and the
statute’s purpose.’ ” (Apple Inc. v. Superior Court (2013) 56
Cal.4th 128, 135.) As the parties and amici curiae observe, the
text of the UCL does not explicitly address the geographic scope
of a district attorney’s authority to seek civil penalties and
restitution. But the statute does contain several clues that bear
on the question presented.
First, in addition to contemplating statewide injunctions
(§ 17207), the UCL authorizes courts to “make such orders or
judgments . . . as may be necessary to restore to any person in
interest any money or property . . . which may have been
acquired by means of . . . unfair competition” (§ 17203, italics
added). Further, with regard to civil penalties, the statute says:
“The court shall impose a civil penalty for each violation of [the
UCL].” (§ 17206, subd. (b), italics added.) The broad language
of these provisions is not qualified by any reference to geography
or the identity of the plaintiff. The statute contains no
geographic limitation on the scope of relief that courts may order
in an enforcement action brought by a district attorney.
The purpose of the quoted language of section 17206 was
to codify the standard set forth in People v. Superior Court
(Olson) (1979) 96 Cal.App.3d 181, 198, for determining the
number of violations and corresponding civil penalties resulting
from the publication or broadcast of a media advertisement.
(See Stats. 1992, ch. 430, § 4, pp. 1707–1708; Sen. Com. on
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Judiciary, Analysis of Sen. Bill No. 1586 (1991–1992 Reg. Sess.)
as amended May 4, 1992, pp. 1–2.) Although the legislative
history does not include any specific consideration of the
question before us, it is notable that the Olson case was brought
by the Orange County District Attorney seeking injunctive relief
and civil penalties for false advertisements that ran in multiple
counties and that targeted homeowners in Orange County and
Riverside County. (Olson, at p. 185 & fn. 2.). Neither Olson nor
the legislative history of the 1992 amendment to the UCL raised
any concern about the geographic scope of relief sought in an
enforcement action by a district attorney.
Second, section 17206, subdivision (c) provides in part: “If
the action is brought by the Attorney General, one-half of the
penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General
Fund.” (See also § 17207, subd. (c) [similarly allocated civil
penalties recovered for violation of injunction prohibiting unfair
competition, with one-half to the treasurer of the county in
which the judgment was entered and one-half to the State
Treasurer].) The Legislature’s allocation of one-half of civil
penalties in a statewide action to the county in which the
judgment was entered indicates that the Legislature did not
design the civil penalty scheme to ensure an allocation of civil
penalties to counties in accordance with the number of
violations in each county. Rather, penalties are awarded in
large part based on the location in which judgment is entered,
regardless of the number of violations proven or their
corresponding locations.
Third, in making injunctions prohibiting unfair
competition widely enforceable throughout the state, section
17207, subdivision (b) distinguishes between “any county in
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which the violation occurs” and “any county . . . where the
injunction was issued.” In other words, the county “where the
injunction was issued” is not necessarily the county “in which
the violation [of the injunction] occurs,” and civil penalties to
punish violation of an injunction may be obtained through a civil
action filed in either type of county. (Ibid.) Thus, for example,
if an injunction entered in Orange County is violated in
Riverside County, civil penalties for that violation may be
recovered in a civil action brought in Orange County. By its
terms, section 17207 not only confirms that courts may grant
statewide injunctive relief, but also contemplates that an action
brought in the county where an injunction was issued may
result in an imposition of civil penalties for violations occurring
in other counties. Moreover, section 17207 shows that the
Legislature knows how to write language limiting the award of
civil penalties to the county “in which the violation occurs.” But
it did not enact any such limitation in section 17207 (civil
penalties for violation of an injunction) or in section 17206 (civil
penalties for engaging in unfair competition) based on the
identity of the plaintiff. As noted, the latter provision states
without qualification: “The court shall impose a civil penalty for
each violation of this chapter.” (§ 17206, subd. (b).)
A straightforward reading of the UCL’s broad language is
consistent with the statute’s purpose and history. As the parties
note, there is no specific indication in the voluminous legislative
record of the UCL that the Legislature intended to grant
statewide enforcement authority to district attorneys or to
withhold such authority from them. But what the record does
reveal is a clear trajectory toward greater and overlapping
public enforcement at all levels of government.
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The scope of public UCL enforcement has expanded in the
decades since the statute’s enactment in 1933. (See Kraus v.
Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 129–
130.) Although the statute originally provided only for
injunctive relief, the Legislature granted to the Attorney
General and district attorneys the authority to obtain civil
penalties for violations of the UCL in 1972. (Compare Stats.
1963, ch. 1606, § 1, p. 3184 with Stats. 1972, ch. 1084, § 2,
p. 2021.) In 1974, the same authority to seek injunctive relief
and civil penalties was extended to city attorneys of jurisdictions
with a population in excess of 750,000, despite objections that
“prosecution of unfair competition cases should be a county-wide
function, rather than broken up into cities,” because “harmful
competition will arise between the two entities.” (Sen.
Republican Caucus, Analysis of Sen. Bill No. 1725 (1973–1974
Reg. Sess.) as amended Apr. 24, 1974, p. 2; see Stats. 1974, ch.
746, § 1, pp. 1654–1655.) The law was amended in 1988 to grant
standing to the San Jose City Attorney (Stats. 1988, ch. 790, § 1,
pp. 2557–2558), in 1991 to grant standing to all county counsel
(Stats. 1991, ch. 1195, § 1, p. 5799), and in 1992 to grant
standing to all city attorneys with the consent of their respective
district attorneys (Stats. 1992, ch. 430, § 4, p. 1707; see
generally Fellmeth, California’s Unfair Competition Act:
Conundrums and Confusions (Jan. 1995) published as part of
Recommendation on Unfair Competition Litigation (Nov. 1996)
26 Cal. Law Revision Com. Rep. 227, 234 & fn. 24). These
amendments were generally opposed by the California District
Attorneys Association (CDAA), which argued that the Attorney
General and district attorneys had the “training and experience”
to best serve the public interest in the area of consumer
protection and that “their effectiveness may well be jeopardized
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or compromised through the expansion of this section.” (Exec.
Dir., Cal. District Attorneys Assn., letter to Sen. Ayala re. Sen.
Bill No. 709 (1991–1992 Reg. Sess.) May 10, 1991; see also
Assem. Com. on Judiciary, Analysis of Sen. Bill No. 2440 (1987–
1988 Reg. Sess.) as amended June 9, 1988, pp. 1–2 [similar]; but
see Dept. Consumer Affairs, Enrolled Bill Rep. on Sen. Bill No.
1586 (1991–1992 Reg. Sess.) July 23, 1992, p. 3 [noting the
CDAA’s neutral position to compromise legislation sponsored by
retailers].)
The sole exception to this trajectory of expanding UCL
enforcement was the 2004 enactment of Proposition 64, which
revised the UCL’s standing provisions for private individuals by
providing that “a private person has standing to sue only if he
or she ‘has suffered injury in fact and has lost money or property
as a result of such unfair competition.’ ” (Californians for
Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227,
quoting § 17204, as amended by Prop. 64, § 2.) Proposition 64
had no effect on suits brought by the Attorney General, the
district attorneys, or other public prosecutors.
In sum, the text of the UCL grants broad civil enforcement
authority to district attorneys, and this broad grant of authority
is consistent with the statute’s purpose and history. We see no
indication that in an enforcement action brought by a district
attorney, the Legislature intended to limit civil penalties or
restitution to the geographic boundaries of the district
attorney’s county.
III.
Abbott contends that we must read a geographic
limitation into the District Attorney’s UCL enforcement
authority in order to give effect to the “hierarchical structure of
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the prosecutorial function within California’s executive branch”
as set forth in the California Constitution.
Article V, section 13 of the state Constitution provides:
“Subject to the powers and duties of the Governor, the Attorney
General shall be the chief law officer of the State. It shall be the
duty of the Attorney General to see that the laws of the State
are uniformly and adequately enforced. The Attorney General
shall have direct supervision over every district attorney and
sheriff and over such other law enforcement officers as may be
designated by law, in all matters pertaining to the duties of their
respective offices, and may require any of said officers to make
reports concerning the investigation, detection, prosecution, and
punishment of crime in their respective jurisdictions as to the
Attorney General may seem advisable. Whenever in the opinion
of the Attorney General any law of the State is not being
adequately enforced in any county, it shall be the duty of the
Attorney General to prosecute any violations of law of which the
superior court shall have jurisdiction, and in such cases the
Attorney General shall have all the powers of a district attorney.
When required by the public interest or directed by the
Governor, the Attorney General shall assist any district
attorney in the discharge of the duties of that office.”
This provision mentions “the powers of a district attorney”
but does not define those powers except by reference to “the
investigation, detection, prosecution, and punishment of crime
in their respective jurisdictions.” (Cal. Const., art. V, § 13.)
Elsewhere, the state Constitution requires the Legislature to
provide for each county “an elected district attorney” (Cal.
Const., art. XI, § 1, subd. (b)) but does not elucidate the district
attorney’s powers. Rather, the Legislature has conferred upon
district attorneys both criminal and civil enforcement authority
17
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
as a matter of statute, declaring that “the district attorney is the
public prosecutor, except as otherwise provided by law” (Gov.
Code, § 26500, 1st par.), and providing for certain secondary
duties when he or she is “not engaged in criminal proceedings in
the superior court or in civil cases on behalf of the people” (id.,
§ 26501). When a district attorney prosecutes criminal
violations of state law, he or she acts in a state rather than a
local capacity, and that authority is “territorially limited.”
(Pitts, supra, 17 Cal.4th at p. 361; see People v. Eubanks (1996)
14 Cal.4th 580, 589 [district attorney of each county is vested
with power to conduct prosecutions of criminal offenses “within
the county”].)
In reading the language of the constitutional provisions
concerning the role of the Attorney General and district
attorneys, we find nothing in those provisions that constrains
the Legislature’s prerogative to structure UCL enforcement so
that a district attorney has authority to seek civil penalties and
restitution for violations outside of his or her county. The UCL
does not undermine the Attorney General’s constitutional role
as California’s chief law enforcement officer. In particular, the
public enforcement authority that the UCL grants to district
attorneys does not constrain the Attorney General’s prerogative
to intervene or take control of a civil enforcement action that, in
the Attorney General’s view, does not adequately serve the
public interest. (See Cal. Const., art. V, § 13 [“Whenever in the
opinion of the Attorney General any law of the State is not being
adequately enforced in any county, it shall be the duty of the
Attorney General to prosecute any violations of law of which the
superior court shall have jurisdiction, and in such cases the
Attorney General shall have all the powers of a district
attorney.”]; Gov. Code, § 12550 [Attorney General “has direct
18
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
supervision over the district attorneys,” and “[w]hen he deems
it advisable or necessary in the public interest . . . , he shall
assist any district attorney in the discharge of his duties, and
may, where he deems it necessary, take full charge of any
investigation or prosecution of violations of law of which the
superior court has jurisdiction”].) In the UCL context, the
Attorney General’s supervisory role is facilitated by the
requirement that all appellate briefs or petitions in a UCL
matter be served upon the Attorney General. (§ 17209.) Thus,
the ultimate locus of control and accountability for UCL actions
is the office of the Attorney General.
The Attorney General, as amicus curiae, does not join
Abbott’s constitutional arguments but offers three practical
concerns in support of Abbott’s position. First, the Attorney
General suggests that the District Attorney’s position would
present “conflicts of interest” between local prosecutors’
responsibility to statewide victims, to whom they are not
politically accountable, and their own incentives to secure a
greater share of available remedies for local constituencies.
“The result,” according to the Attorney General, “could be a
degradation of UCL enforcement, as local prosecutors compete
to be the first to settle a case and secure penalties for local use.”
Second, “granting statewide enforcement authority to local
prosecutors would endanger California’s ability to credibly lead
the way in matters of national or international prominence” by
compromising the Attorney General’s primary role in consumer
enforcement. Third, the Attorney General contends, the “widely
recognized geographic limitations on district and city attorneys’
UCL authority have formed the basis for decades of interoffice
cooperation” between state and local prosecutors, and this
cooperation, which is crucial to the intensive investigations and
19
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
litigation necessary to pursue UCL claims, would be jeopardized
by a rule allowing any district attorney to pursue statewide
remedies. The CDAA, as amicus curiae, echoes these concerns,
adding that an “assertion of statewide jurisdiction and
preemptive authority . . . should come . . . only after a careful
analysis by the State Legislature to resolve competing policy
objectives.” (See Stop Youth Addiction, Inc. v. Lucky Stores
(1998) 17 Cal.4th 553, 578.)
These concerns are not without force, and we do not take
them lightly. But two caveats are in order. First, the Attorney
General’s “conflict of interest” concern appears directed solely at
civil penalties rather than restitution, as restitution is paid to
victims, not the county, and thus does not create the same “race
to file” incentive. Second, all of these concerns are presented in
the abstract. In support of his argument, the Attorney General
offers a single example of a district attorney unilaterally
pursuing statewide relief in parallel with a coalition of state and
local prosecutors. As the Attorney General recounts, the
District Attorney of Trinity County, represented by contingency
fee counsel, sued Volkswagen shortly after the discovery of the
worldwide diesel emissions cheating scandal, even as the
Attorney General was investigating the same conduct in what
eventually resulted in litigation involving all 50 states as well
as federal and foreign agencies. Although the Attorney General
suggests that “granting statewide enforcement authority to local
prosecutors would endanger California’s ability to credibly lead
the way in matters of national or international prominence,” he
reports that the district attorney in that matter dropped his case
with no apparent negative effects.
In any event, we note that concerns similar to those raised
by amici curiae have been conveyed to the Legislature at various
20
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
junctures when it considered proposals to expand local
enforcement (ante, at pp. 15–16), and the Legislature
nevertheless chose to create a decentralized enforcement model
in which a district attorney has authority to obtain statewide
relief. Although arguments in favor of a more centralized model
are not without merit, the Legislature reasonably could have
believed that an overlapping scheme of decentralized
enforcement has several potential advantages.
First, “for a defendant in a state the size of California, a
law enforcement action alleging a statewide unlawful business
practice and seeking monetary relief creates, at least
potentially, a substantial economic exposure. To the extent law
enforcement can be Balkanized and monetary relief limited to
local jurisdictions—especially early in the litigation—a
defendant’s ‘management’ of the exposure is greatly facilitated.”
(Abbott, supra, 24 Cal.App.5th at p. 32 (dis. opn. of Dato, J.).)
Second, although it is possible that a district attorney will
pursue a settlement that undervalues the true scope of
statewide claims, it is also possible that the alternative would
be no enforcement or penalty at all for violations outside of the
district attorney’s county. Indeed, the limited enforcement
resources of the Attorney General have been a significant factor
in the Legislature’s repeated expansion of public enforcement
authority under the UCL. Although concerns about conflicts of
interest or duplicative enforcement have been expressed each
time the Legislature expanded the scope of UCL enforcement,
neither the legislative record nor the briefing before us points to
any concrete or widespread problems. “Pursuing litigation
against corporate defendants is expensive, and the Legislature
was doubtless aware that both financial and political
considerations may sometimes discourage a public prosecutor
21
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
from undertaking such a case. Consistent with the UCL’s broad
remedial purposes and the perceived need for vigorous
enforcement, there is nothing unconstitutional about the
Legislature’s decision to permit and encourage multiple public
prosecutors with overlapping lines of authority on the theory
that more enforcement in this context is better than less.”
(Abbott, supra, 24 Cal.App.5th at p. 35 (dis. opn. of Dato, J.).)
Without denying that the UCL scheme may “incentivize
public prosecutors [to] act[] in their respective county’s financial
self-interest” at the expense of full redress for violations in other
counties (Abbott, supra, 24 Cal.App.5th at p. 31), we are unable
to conclude that the Legislature necessarily believed this
concern outweighs the incentive that the scheme provides for
district attorneys to bring enforcement actions that might
otherwise not be brought at all. In the litigation before us, there
is no indication at this stage that the balance of incentives is
tipped toward a settlement that is motivated by a conflict of
interest or is otherwise improper. In this case, “the concern
about a local district attorney binding other prosecutors to an
improper or inadequate settlement is as fanciful as it is
premature.” (Id. at p. 35 (dis. opn. of Dato, J.).) In any event,
concerns about local “windfalls” are tempered by the UCL’s
mandate that all penalties recovered by local prosecutors be
used exclusively “for the enforcement of consumer protection
laws.” (§ 17206, subd. (c).)
Third, as to the Attorney General’s leadership role and the
value of interjurisdictional cooperation, the Attorney General
retains authority to intervene or take over the case (Cal. Const.,
art. V, § 13; Gov. Code, § 12550), and in any event, the Attorney
General has not identified any specific way in which the District
Attorney’s conduct of this litigation has compromised such
22
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
values. Notably, the trial court here appears quite alert to the
importance of the Attorney General’s role, explaining that “[i]f
there’s a settlement, I can guarantee you the Attorney General
. . . is going to know about [it]. So, we will deal with that if and
when. . . . There are going to be more players in any kind of
settlement unless there’s a carve-out.”
The Court of Appeal relied on Hy-Lond, supra, 93
Cal.App.3d 734, in which the Attorney General moved to set
aside a stipulated judgment between the Napa County District
Attorney and a nursing home operator with facilities in 12
counties. (Id. at pp. 739–742.) The stipulation provided for
general injunctive relief and payment of civil penalties (id. at
pp. 741–742, 748–749) and designated the Napa County District
Attorney as “ ‘the exclusive governmental agency that may
enforce the provision of this injunction’ ” (id. at p. 741, fn. 1). It
purported to absolve the company of past wrongdoings and
immunize it from future unfair competition lawsuits brought by
anyone acting on behalf of the state for alleged violations of any
acts covered by the injunction. It also purported to bar the state
or any of its administrative agencies from taking action to
suspend or revoke the company’s license based on the alleged
acts referred to in the complaint. (Id. at pp. 741, fn. 2, 749.)
Hy-Lond held that the Attorney General had standing to
intervene and move to vacate the judgment. Unlike Abbott, the
defendants in Hy-Lond argued that the district attorney must
be able to act on behalf of the state in a civil enforcement action
because “parties dealing with the state must be able to negotiate
with confidence with the agent authorized to bring the suit, and
without the fear that another agency or other state entity might
overturn any agreement reached.” (Hy-Lond, supra, 93
Cal.App.3d at p. 752.) While acknowledging this concern in the
23
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
abstract, the court in Hy-Lond reasoned that the parties were
on notice that the district attorney had no right “to surrender
the powers of the Attorney General and his fellow district
attorneys to commence, when appropriate, actions in other
counties under the provisions of law.” (Id. at p. 753.) Moreover,
the settlement in Hy-Lond ran afoul of the general rule that “an
injunction cannot be granted to prevent the execution of a public
statute by officers of the law for a public benefit.” (Ibid.)
Finding these principles dispositive, the court noted but did not
examine the further argument that a contrary rule would result
in an intolerable conflict of interest by “put[ting] the initiating
district attorney in the position of bargaining for the recovery of
civil penalties that would flow into his county’s coffers, at the
expense of surrendering the rights and duties of the state to
control the respondent’s activities generally through the powers
of the Attorney General” and other local and state enforcement
agencies. (Ibid.; see id. at p. 754 [“the powers of the district
attorney are limited by the recognition of a possible conflict of
interest” and corresponding rules of professional conduct].)
Hy-Lond is inapposite because it concerned a negotiated
settlement that specifically sought to limit future enforcement
authority of the Attorney General and other officials. The
parties in this case have not reached any settlement; there is no
judgment that purports to bind other public prosecutors or limit
their enforcement authority; and the role of the Attorney
General has not been compromised or usurped. Further, the
trial court said that “if [defendants] reach a settlement with the
district attorney, unlike the trial court in Hy-Lond — and if the
[Attorney General] comes in and says I want to be heard about
this, you bet I’m going to let them be heard on this.” This is not
a case where a trial court appears poised to approve a settlement
24
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
without affording the Attorney General an opportunity to
participate.
Ultimately, the pros and cons of centralization or
decentralization in the enforcement of California’s consumer
protection laws is a matter of policy for the Legislature to decide.
We acknowledge amici curiae’s concern about democratic
accountability, but it is undisputed that the Legislature has
authorized local prosecutors to seek a statewide injunction
under the UCL. And it is the Legislature, elected by voters
across the state, that has decided to allow local prosecutors to
seek civil penalties. The state Constitution does not preclude
the Legislature’s choice of an overlapping scheme of public
enforcement, with no geographic limitations on courts’ authority
to impose civil penalties and award restitution in actions
brought by district attorneys. Of course, nothing prevents the
voters from petitioning their legislators or placing an initiative
on the ballot to restrict this authority for local prosecutors if
they believe it is not sound policy. But we have no authority to
impose geographic limits on the broad enforcement authority
that the text of the UCL grants to district attorneys.
The Court of Appeal, having reached the contrary result,
suggested that a district attorney could seek civil penalties
beyond the boundaries of his or her county if the Attorney
General were to provide written consent to the litigation. But
just as the UCL imposes no geographical limits on a district
attorney’s enforcement authority, it contains no provision
requiring the district attorney to obtain the Attorney General’s
consent to enforce the statute. The Court of Appeal cited
statutes dealing with intercounty cooperation between district
attorneys’ and city attorneys’ offices, but those statutes do not
mention the Attorney General. Simply put, the UCL does not
25
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
require a district attorney to obtain the Attorney General’s
consent, written or otherwise, before pursuing an enforcement
action under the statute.
Finally, we note that the complaint in this case specifically
alleges that at least some of the violations occurred in Orange
County and that venue is therefore proper in the Orange County
Superior Court. We have no occasion to address whether a
district attorney could bring a UCL claim for conduct occurring
entirely outside the bounds of his or her county. (Cf. § 17207,
subd. (b) [public actions to enforce violations of a UCL injunction
may be brought by specified local and state officers “in any court
of competent jurisdiction within his or her jurisdiction without
regard to the county from which the original injunction was
issued”].) At the same time, the practical and legal concerns
raised by the parties and amici curiae, including questions
regarding the preclusive effect of statewide relief obtained by an
individual district attorney, may induce the Legislature to
consider amending the UCL to add procedures to minimize the
risks of conflicting enforcement efforts. A basic starting point
would be the provision of notice to the Attorney General and
other relevant officials in cases where a district attorney seeks
a UCL remedy for violations outside the county’s borders.
26
ABBOTT LABORATORIES v. SUPERIOR COURT
Opinion of the Court by Liu, J.
CONCLUSION
We reverse the judgement of the Court of Appeal and remand
the matter to that court for further proceedings consistent with
this opinion.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
FUJISAKI, J.*
*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
27
ABBOTT LABORATORIES v. SUPERIOR COURT
S249895
Concurring Opinion by Justice Kruger
I agree with the majority opinion that district attorneys
exercising their authority to enforce the unfair competition law
(UCL) (Bus. & Prof. Code, § 17200 et seq.) may seek civil
penalties and restitution for violations occurring outside their
counties’ borders. I write separately, however, to call attention
to a gap in the statutory enforcement scheme that the
Legislature may wish to fill.
As the majority opinion explains, the text and history of
the UCL indicate that when the Legislature empowered district
attorneys to sue “in the name of the people of the State of
California” (Bus. & Prof. Code, §§ 17204, 17206, subd. (a)), it
intended to authorize district attorneys to pursue the full suite
of remedies that are available to the state, including civil
penalties and restitution for violations occurring outside county
borders. But absent an effective mechanism for coordinating
efforts, empowering scores of local officials to sue in the name of
the State of California will inevitably create some practical
challenges. These potential challenges are particularly acute in
the context of the UCL, which provides that any civil penalties
recovered by a district attorney “shall be paid to the treasurer of
the county in which the judgment was entered.” (Bus. & Prof.
Code, § 17206, subd. (c).) As amici curiae the Attorney General
and the California District Attorneys Association observe, this
provision creates an incentive for district attorneys to race each
1
ABBOTT LABORATORIES v. SUPERIOR COURT
Kruger, J., concurring
other to the courthouse and to enter settlements that maximize
their own counties’ recoveries, potentially at the expense of
consumers elsewhere in the state. The amici curiae worry that
the net effect may be to hamper effective statewide enforcement
of the UCL rather than enhance it.
The majority correctly notes that the UCL’s system of
overlapping public enforcement authority generally has not—to
this point—given rise to such difficulties. (Maj. opn., ante, at
p. 20.) But as a consequence of our decision today—which has
dispelled the cloud of uncertainty that had previously hung over
statewide enforcement actions brought by district attorneys—
we may well see an increase in attempts to bring such actions,
and an increased risk that the Attorney General’s and California
District Attorneys Association’s worries will be realized.
In other statutes with similar enforcement regimes, the
Legislature has provided a roadmap for how public officials
should sort out areas of overlapping responsibility from the
moment a complaint is filed. (See, e.g., Gov. Code, § 12652
[spelling out specific procedures for the Attorney General and
local prosecuting authorities to follow to ensure coordination in
pursuing False Claims Act violations].) Such provisions
implicitly recognize that the Attorney General is “the chief law
officer of the State,” obligated “to see that the laws of the State
are uniformly and adequately enforced,” and accorded the
authority to exercise “direct supervision over every district
attorney.” (Cal. Const., art. V, § 13.) They also recognize that
the Attorney General’s ability to carry out these obligations
depends, in the first instance, on receiving adequate notice of
relevant claims.
2
ABBOTT LABORATORIES v. SUPERIOR COURT
Kruger, J., concurring
The UCL lacks a comparable notification provision for
trial proceedings. It does contain one for appellate matters: On
appeal, the parties must serve the Attorney General with copies
of their briefs and petitions. (Bus. & Prof. Code, § 17209.) The
required notice ensures that the Attorney General is aware of
appellate proceedings that may generate published, binding
precedent and affect future interpretations of the law. But for
the surely far greater number of UCL cases that are resolved in
the trial courts, the current statutory scheme contains no
mechanism to ensure notice. As the majority opinion notes, the
Attorney General has the authority “to intervene or take control
of a civil enforcement action that, in the Attorney General’s
view, does not adequately serve the public interest.” (Maj. opn.,
ante, at p. 18, citing Cal. Const., art. V, § 13 and Gov. Code,
§ 12550.) But to exercise those constitutional powers—or even,
at a lesser level, to provide input, direction, or oversight—the
Attorney General must first be aware of the existence of the
underlying action.
The Legislature may wish to fill this gap by requiring that
district attorneys and other public prosecutors serve the
Attorney General with a copy of any UCL complaint whose
prayer for relief seeks monetary relief for violations occurring
beyond the borders of their respective jurisdictions. Such a
requirement—which would parallel the existing statutory
requirement to serve the Attorney General with copies of each
appellate brief or petition—would go a significant way toward
addressing the legitimate concerns the Attorney General and
other district attorneys have expressed about the powers we
recognize today, and toward facilitating coordination and
3
ABBOTT LABORATORIES v. SUPERIOR COURT
Kruger, J., concurring
collaboration between different enforcing authorities in the
future.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Abbott Laboratories v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 24 Cal.App.5th 1Rehearing Granted
__________________________________________________________________________________
Opinion No. S249895
Date Filed: June 25, 2020
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Kim G. Dunning
__________________________________________________________________________________
Counsel:
Kirkland & Ellis, Michael John Shipley, Jay P. Lefkowitz, Adam T. Humann and Yosef Mahmood for
Petitioners Teva Pharmaceuticals USA, Inc., Duramed Pharmaceuticals Sales Corp., Inc., and Barr
Pharmaceuticals, Inc.
Munger, Tolles & Olson, Jeffrey I. Weinberger, Stuart N. Senator and Blanca F. Young for Petitioners
AbbVie Inc. and Abbott Laboratories.
Horvitz & Levy, Jeremy Brooks Rosen, Stanley H. Chen; Janet Y. Galeria; and Heather Lynn Wallace for
Chamber of Commerce of the United States of America and California Chamber of Commerce as Amici
Curiae on behalf of Petitioners.
No appearance for Respondent.
Tony Rackauckas and Todd Spitzer, District Attorneys, Joseph D'Agostino, Assistant District Attorney,
Kelly A. Ernby, Deputy District Attorney; Robinson Calcagnie, Mark P. Robinson, Jr., and Kevin F.
Calcagnie for Real Party in Interest.
Dennis J. Herrera, City Attorney (San Francisco), Yvonne R. Meré and Owen J. Clements, Deputy City
Attorneys; Michael Feuer, City Attorney (Los Angeles), Michael M. Walsh and Monica D. Castillo,
Deputy City Attorneys; Mara W. Elliot, City Attorney (San Diego), Mark D. Ankcorn, and Kathryn Turner,
Chief Deputy City Attorney, Kristine Lorenz, Deputy City Attorney; Richard Doyle, City Attorney (San
Jose), Nora Frimann, Assistant City Attorney; James R. Williams, County Counsel (Santa Clara), Greta S.
Hansen and Danny Chou, Chief Assistant County Counsel, Laura S. Trice, Deputy County Counsel;
Barbara J. Parker, City Attorney (Oakland), Maria S. Bee, Chief Assistant City Attorney, Erin B. Bernstein,
Deputy City Attorney; Alison E. Leary and Jennifer B. Henning for City Attorneys, League of California
Cities and California State Association of Counties as Amici Curiae on behalf of Real Party in Interest.
Law Office of Valerie T. McGinty and Valerie T. McGinty for Consumer Attorneys of California as
Amicus Curiae on behalf of Real Party in Interest.
Xavier Becerra, Attorney General, Nicklas A. Akers, Assistant Attorney General, Michele R. Van
Gelderen, Daniel A. Olivas, Hunter Landerholm, and David A. Jones, Deputy Attorneys General, for
Attorney General as Amicus Curiae.
Mark Louis Zahner; and Thomas A. Papageorge for the California District Attorneys Association as
Amicus Curiae.
Jeffrey S. Rosell, District Attorney (Santa Cruz), Douglas B. Allen, Assistant District Attorney, for Santa
Cruz County District Attorney as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kelly A. Ernby
Deputy District Attorney
401 Civic Center Drive
Santa Ana, CA 92701-4575
(714) 834-3600
Yvonne R. Meré
Deputy City Attorney
Fox Plaza
1390 Market St., 6th Floor
San Francisco, CA 94102-5408
(415) 554-3874
Jay Lefkowitz
Kirkland & Ellis LLP
601 Lexington Ave.
New York, NY 10022
(212) 446-4800