Abbott Laboratories v. Superior Court

Filed 6/27/18 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ABBOTT LABORATORIES et al., D072577
Petitioners, (Orange County Super. Ct.
No. 30-2016-00879117-CU-BT-CXC)
v.
THE SUPERIOR COURT OF ORANGE ORDER DENYING REHEARING,
COUNTY, DENYING MOTION FOR JUDICIAL
NOTICE, AND MODIFYING OPINION
Respondent;
THE PEOPLE ex rel. TONY NO CHANGE IN JUDGMENT
RACKAUCKAS, as District Attorney,
etc.,
Real Party in Interest.
THE COURT:
The petition for rehearing is denied. Justices Huffman and O'Rourke concur in the
denial; Justice Dato would grant.
The motion for judicial notice is denied.
The opinion is modified as follows: The number "1560" is changed to "1566" so
that the citation starting on line 5 of footnote 15 on page 33 now reads:
(People ex rel. Kennedy v Beaumont Investment, Ltd. (2003) 111
Cal. App. 4th 102, 127-128, quoting People v Superior Court
(Jayhill), supra, 9 Cal.3d at p. 288; see People ex rel. Harris v
Sarpas (2014) 225 Cal. App. 4th 1539, 1566.)
On page 1 of the dissent, the first and second paragraphs are deleted and inserted
with the following language to now read:
As an intermediate appellate court, our primary role is to review
final decisions of the superior court for prejudicial error. We
generally avoid broad legal policy pronouncements, leaving that to
the Supreme Court and the Legislature. Sometimes policy
considerations can play an important part in our decisions, but even
then we take pains to assure that the policy questions are squarely
presented by the facts of the case and necessary to the decision we
are required to render.
I believe the majority's decision to entertain the writ petition in this
case violates each of these salutary guidelines. The majority then
compound this error by deciding the ill-framed legal issue in a
manner that will materially impair the interests of California
consumers by fundamentally altering the structure of consumer
protection laws in this state. For these reasons, I respectfully
dissent.
This modification does not change the judgment.
HUFFMAN, Acting P. J.
Copies to: All parties
2
Filed 5/31/18 (unmodified version)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ABBOTT LABORATORIES et al.,
Petitioners,
v.
D072577
THE SUPERIOR COURT OF ORANGE
COUNTY, (Orange County Super. Ct.
No. 30-2016-00879117-CU-BT-CXC)
Respondent;
THE PEOPLE ex rel. TONY
RACKAUCKAS, as District Attorney,
etc.,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate following denial of a motion to strike
under Code of Civil Procedure sections 435 and 436, Kim G. Dunning, Judge. Petition
granted.
Kirkland & Ellis and 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 and Jeffrey I. Weinberger, Stuart N. Senator and Blanca
F. Young for Petitioners AbbVie Inc. and Abbott Laboratories.
Horvitz & Levy and Jeremy Brooks Rosen, Stanley H. Chen, Janet Y. Galeria, for
Chamber of Commerce of the United States of America; Heather Lynn Wallace, for
California Chamber of Commerce as Amici Curiae on behalf of Petitioners.
Tony Rackauckas, Orange County District Attorney, Joseph D'Agostino, Assistant
District Attorney, Kelly A. Ernby, Deputy District Attorney; Robinson Calcagnie Inc. and
Mark P. Robinson, Jr., Kevin F. Calcagnie on behalf of Real Party in Interest.
Dennis J. Herrera, City Attorney, Yvonne R. Mere, Owen J. Clements, Deputy
City Attorneys, for the City and County of San Francisco; Michael Feuer, City Attorney,
Monica D. Castillo, Deputy City Attorney, for the City of Los Angeles; Mara W. Elliot,
City Attorney, Kathryn Turner, Kristine Lorenz, Deputy City Attorneys for the City of
San Diego; Richard Doyle, City Attorney, Nora Frimann, Assistant City Attorney for the
City of San Jose; James R. Williams, County Counsel, Greta S. Hansen, Danny Chou,
Assistants County Counsel, Laura S. Trice, Deputy County Counsel, for Santa Clara
County; Jennifer Henning for 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 and David A. Jones, Deputy Attorneys
General for California Attorney General as Amicus Curiae.
2
Mark Louis Zahner of the California District Attorneys Association and Thomas
Atlee Papageorge of the San Diego District Attorney's Office, for the California District
Attorneys Association as Amici Curiae.
The Orange County District Attorney (the District Attorney), representing "the
People of the State of California," sued petitioners Abbott Laboratories, AbbVie Inc.,
Teva Pharmaceuticals USA, Inc., Barr Pharmaceuticals, Inc., Duramed Pharmaceuticals,
Inc. and Duramed Pharmaceuticals Sales Corp., alleging generally that petitioners
engaged in a scheme to keep generic versions of a prescription drug off the market in
violation of California's Unfair Competition Law (UCL; Bus. & Prof. Code,1 § 17200 et
seq.). The District Attorney sought an injunction as well as civil penalties and restitution.
Petitioners unsuccessfully moved to strike portions of the operative complaint alleging
"claims for restitution and civil penalties based on conduct outside the territorial
jurisdiction of Orange County."
In this writ proceeding, petitioners ask us to resolve a single issue: whether section
17204 of the UCL "permit[s] a county district attorney to bring a claim that seeks relief
for alleged injuries to residents of California counties whom he or she does not represent,
based on conduct occurring outside the county he or she serves . . . ." Petitioners argue
district attorneys have no authority to prosecute civil actions absent specific legislative
authorization, and neither the Government Code, nor Business and Professions Code
1 Statutory references are to the Business and Professions Code unless otherwise
specified.
3
section 17204, authorize the district attorney of a single county to seek statewide
penalties for alleged UCL violations. The California Attorney General has filed an
amicus brief on the question, as have the California District Attorneys Association; the
City Attorneys of Los Angeles, San Diego, San Francisco, and San Jose, Santa Clara
County Counsel, and California State Association of Counties (collectively the city
attorneys); the United States and California Chambers of Commerce (collectively
Chambers of Commerce); and the Consumer Attorneys of California.
We grant the petition. The California Constitution designates the Attorney
General the "chief law officer of the State" (Cal. Const., art. V, § 13), and consistent with
this constitutional provision, the Attorney General "has charge, as attorney, of all legal
matters in which the State is interested" (Gov. Code, § 12511) and also "shall . . .
prosecute or defend all causes to which the State . . . is a party in his or her official
capacity." (Gov. Code, § 12512.) The District Attorney, on the other hand, is a county
officer whose territorial jurisdiction and power is limited accordingly. Though section
17204 confers standing on district attorneys to sue in the name of the people of the State
of California, it cannot constitutionally or reasonably be interpreted to grant the District
Attorney power to seek and recover restitution and civil penalty relief for violations
occurring outside the jurisdiction of the county in which he was elected. A contrary
conclusion would permit the District Attorney to usurp the Attorney General's statewide
authority and impermissibly bind his sister district attorneys, precluding them from
pursuing their own relief. Thus, in the absence of written consent by the Attorney
4
General and other county district attorneys, the District Attorney must confine such
monetary recovery to violations occurring within the county he serves.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioners are companies or wholly-owned subsidiaries involved in the
manufacture, distribution or sale of pharmaceuticals or generic prescription drugs,
including the prescription drug Niaspan. In October 2016, the Orange County District
Attorney, representing "the People of the State of California" in association with private
counsel, filed a complaint for violations of the UCL, alleging that petitioners either
entered into agreements or otherwise engaged in conduct that prevented other generic
manufacturers from launching their own Niaspan equivalent, causing purchasers and
others in California to overpay for the drug. The District Attorney filed a first amended
complaint, the operative pleading, in December 2016. In part, the operative complaint
alleges that "[e]ach sale of Niaspan in violation of Section 17200 constitutes a separate
violation," and purchasers in California sustained substantial losses in the form of
overcharges on each sale based on the petitioners' unlawful and unfair business practices,
which violated federal, state, and/or common laws, including federal and state antitrust
laws. It alleges that "the violations of California law complained of herein resulted in
damages to consumers of Niaspan in California, including in the County of Orange." In
addition to an injunction, the complaint seeks an order that petitioners pay restitution of
any money acquired through the unlawful and unfair business practices, and civil
penalties of up to $2,500 for each violation under sections 17206 and 17206.1.
5
Petitioners thereafter moved to strike from the operative complaint "all claims for
restitution and civil penalties based on conduct outside the territorial jurisdiction of
Orange County."2 Relying on People v. Hy-Lond Enterprises, Inc. (1979) 93 Cal. App. 3d
734, 751 (Hy-Lond) as well as California v. M & P Investments (E.D.Cal. 2002) 213
F. Supp. 2d 1208 (M & P Investments), petitioners argued a district attorney's enforcement
authority under the UCL was limited to the geographic boundaries of the county for
which the district attorney was elected, but contrary to that restriction, the District
Attorney sought to recover for overcharges paid by "California Niaspan users, their
insurers, public healthcare providers and other government payors . . . ." Petitioners
sought to strike several words and phrases from the complaint referring to pursuing relief
across California.
In opposition, the District Attorney argued Hy-Lond was inapposite as it involved
a settlement and stipulated injunction that purported to bind the real "client," which was
the state Department of Health, and immunize the defendant as to future actions
involving future violations of law. He argued that when statewide business practices are
at issue, the California Constitution did not prevent the Legislature from giving district
attorneys statewide enforcement authority and the ability to obtain statewide relief, which
the UCL's plain language indicated the Legislature had done. The District Attorney
2 Petitioners also filed a demurrer based on the statute of limitations. That demurrer
and the trial court's ruling overruling it are not at issue in this proceeding.
6
argued the California Constitution did not restrict his duties and authority under the UCL
to obtain statewide relief.
During arguments on the motion, the trial court stated its view that the appellate
court in Hy-Lond did not address the Napa County district attorney's ability in that case to
recover statewide civil penalties; in its opinion, Hy-Lond addressed only whether the
district attorney could bind the Attorney General in a settlement relating to misconduct
spanning more counties than just Napa County. The court explained that if a settlement
occurred in the present case, the Attorney General would be permitted to appear and be
heard. The court also questioned Hy-Lond's reliance on Singh v. Superior Court (1919)
44 Cal. App. 64 in which the Court of Appeal pointed out a district attorney's powers were
"limited territorially to the county for which he has been elected," but rejected an
argument that a district attorney was not an executive officer or officer of the state for
purposes of a bribery statute and dismissed a writ seeking to enjoin proceedings on an
indictment. (Id. at pp. 66-68.) The court denied petitioners' motion to strike.
Petitioners sought writ relief by this petition. We issued an order to show cause
and stayed further proceedings in the superior court pending further order.
DISCUSSION
I. District Attorney's Demurrer to Petition
Preliminarily, we address seriatim the District Attorney's arguments made in a
general demurrer to the petition. (Code Civ. Proc., § 1089 [when the court issues an
alternative writ, "the party upon whom the writ . . . has been served may make a return by
demurrer, verified answer or both"]; see Cal. Rules of Court, rule 8.487(b)(1) ["If the
7
court issues an alternative writ or order to show cause, the respondent or any real party in
interest, separately or jointly, may serve and file a return by demurrer, verified answer, or
both"]; Agricultural Labor Relations Board v. Superior Court (2016) 4 Cal.App.5th 675,
681.) The demurrer admits the facts pleaded in the writ petition. (Agricultural Labor
Relations Board v. Superior Court, at p. 682.)
A. Service on Attorney General
The District Attorney first contends the petition is procedurally defective because
petitioners did not provide a proof of service of a copy of the writ petition on the
Attorney General as required by section 17209.3 He points out that if the Attorney
General is not properly served and the time for serving the brief has not been extended,
the court may not enter judgment, grant relief, or issue an opinion. (§ 17209.)
The District Attorney fails to point out that on September 11, 2017, before we
issued the order to show cause in this matter, petitioners submitted their certificate of
service on the Attorney General of their petition and letter brief in reply to the District
Attorney's informal opposition. The Attorney General thereafter sought leave to file an
amicus brief and has filed that brief. In view of these developments, we retain power and
3 Section 17209 provides in part: "If a violation of this chapter is alleged or the
application or construction of this chapter is in issue in any proceeding in the Supreme
Court of California, a state court of appeal, or the appellate division of a superior court,
each person filing any brief or petition with the court in that proceeding shall serve,
within three days of filing with the court, a copy of that brief or petition on the Attorney
General . . . . No judgment or relief, temporary or permanent, shall be granted or opinion
issued until proof of service of the brief or petition on the Attorney General and district
attorney is filed with the court."
8
find good cause to sua sponte retroactively extend the time for providing the notice
required under section 17209. (Accord, Black v. Financial Freedom Senior Funding
Corp. (2001) 92 Cal. App. 4th 917, 924, fn. 6; see also Californians for Population
Stabilization v. Hewlett-Packard Co. (1997) 58 Cal. App. 4th 273, 284 [section 17209's
requirements are not jurisdictional], overruled on other grounds in Cortez v. Purolator
Air Filtration Products Co. (2000) 23 Cal. 4th 163, 175-177.) Because the Attorney
General has received adequate notice and is not prejudiced in any way, there is no basis
to sustain a demurrer to the petition on this procedural ground.
B. Advisory Opinion
The District Attorney next contends the petition seeks an improper advisory
opinion on an abstract proposition of law, assertedly because the issue is "not tethered to
the facts in this case" or to "any order that is now properly justiciable." The contention is
not further explained, and we reject it. Petitioners challenge the trial court's ruling
denying their motion to strike allegations seeking to recover restitution and civil penalties
for each sale of Niaspan in the State of California, which rejected the argument that the
District Attorney was geographically limited to the County of Orange in seeking such
relief. The court's ruling presents a concrete legal dispute over the scope of recovery that
a district attorney may seek under the UCL, which is properly the subject of a motion to
strike. (Accord, Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d
211, 213-215 [considering petition for writ of mandate filed after superior court denied
motion to strike portions of complaint, and deciding legal recoverability of punitive
damages in a suit for job discrimination under the California Fair Employment and
9
Housing Act]; Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 [deciding
whether plaintiffs could seek at the pleading stage punitive damages and statutory
penalties for unlawful wiretapping].) Our review of the legal question presented here is
not an abstract proposition, and an early resolution of the issue will streamline both
discovery and any trial on the matter. (Accord, Smith v. Superior Court (1992) 10
Cal. App. 4th 1033, 1037 [extraordinary relief was warranted where court denied motion
to strike emotional distress and punitive damage allegations; "[i]f forced to proceed to
trial on the amended complaint as it stands, petitioners will be required to conduct further
discovery on plaintiff's emotional distress claim, and trial will be extended by the
introduction of evidence on that issue. . . . In addition, the ability of a party to recover
emotional distress damages in negligence actions involving only economic injury is an
issue of great public importance and requires immediate resolution"].)
C. Ripeness
Similarly, the District Attorney contends the petition must be dismissed because
the trial court did not rule on the issue presented and thus no ruling is "ripe for appellate
review." Specifically, the District Attorney argues the court "made no ruling with respect
to what the permissible amount of penalties should be in this case." The District
Attorney points to the court's remarks during oral argument on the petitioners' demurrer
that concerns over damages "are a little premature" and during the motion to strike that
there was no reason to reach "[w]hat kind of remedies plaintiff may be entitled to down
the line . . . ."
10
" '[T]he ripeness doctrine is primarily bottomed on the recognition that judicial
decisionmaking is best conducted in the context of an actual set of facts so that the issues
will be framed with sufficient definiteness to enable the court to make a decree finally
disposing of the controversy.' " (Vandermost v. Bowen (2012) 53 Cal. 4th 421, 452.)
Here, the cited remarks do not support the District Attorney's assertion that the court did
not rule on the issue presented.4 By denying petitioners' motion to strike the broad
allegations as to violations of the UCL for "purchases of, and reimbursements for, the
prescription drug Niaspan occurring in California," the court necessarily determined that
the District Attorney in its UCL action was permitted to pursue restitution and civil
penalties for violations occurring throughout California, including outside the
geographical limits of Orange County. The issues were sufficiently framed in the
motion, are definite and concrete, and the court's ruling is ripe for judicial review.
4 The record shows that when the court stated "we are not worried about damages in
a demurrer, so I think your concerns are a little premature," and "[w]hat kind of remedies
plaintiff may be entitled to down the line, there's no reason to reach that now," it was
referring to petitioners' demurrer on statute of limitations grounds and their arguments as
to the continuous accrual doctrine, under which a series of wrongs may be viewed as each
triggering its own limitations period. (See Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal. 4th 1185, 1192.) The other cited remarks occurred when the court
informed the parties that if they reached a settlement, the Attorney General "is going to
know about it" and "have a voice." The court remarked: "It seems to me that you would
all be better served if you recognized that and include the AG—If, indeed, we are looking
at civil penalties and what you want to do. But that's kind of a ways down the road."
These remarks in no way suggest the court declined to reach the issue presented by
petitioners' motion to strike.
11
D. Irreparable Harm for Purposes of Writ Relief
The District Attorney next contends petitioners have not established irreparable
harm to support extraordinary writ review of the "amount of penalties to be awarded in
this case." (Some capitalization omitted.) We reject the premise of this argument,
namely that the petition at hand challenges merely the "amount" or sum of the award, as
opposed to the District Attorney's power to collect penalties from sales or
reimbursements occurring outside the limits of Orange County. We also reject the
District Attorney's argument that because the pleading of civil penalties is legally
authorized by the UCL, the remedies are not "irrelevant, false, or improper matter"
subject to a motion to strike. The first amended complaint did not simply plead
entitlement to civil penalties, a legally proper remedy in the abstract, but specifically
sought such penalties for sales, purchases and reimbursements—alleged to constitute
violations of "federal, state, statutory and/or common laws"—occurring throughout
California. As stated, a motion to strike is proper where petitioners challenge the scope
of UCL recovery sought by the District Attorney's pleading.
E. Important Question of Law
Finally, the District Attorney argues that this matter does not present, and
petitioners have not identified, conflicting lower court decisions or an important issue of
law that that should be settled by a ruling on their petition. The District Attorney argues
that the proper remedy is "fact specific," and "[s]uch matters cannot be determined in one
broad sweeping statement of the law . . . ."
12
The arguments are without merit. We have already determined by issuing an
alternative writ that there is no adequate legal remedy in this case. (Accord, Smith v.
Superior Court, supra, 10 Cal.App.4th at p. 1037, citing Robbins v. Superior Court
(1985) 38 Cal. 3d 199, 205.) And this court has granted petitioner's request that we
judicially notice the existence of conflicting superior court decisions on the issue. (See
Linda Vista Village San Diego Homeowners Association, Inc. v. Tecolote Investors,
LLC (2015) 234 Cal. App. 4th 166, 185 [judicial notice is properly taken of existence of
court orders to establish the legal effect of the results reached]; Shersher v. Superior
Court (2007) 154 Cal. App. 4th 1491, 1501, fn. 5.) Whether a district attorney acting in
the name of the People of the State of California may obtain restitution and civil penalties
for UCL violations occurring outside his or her county is in our view an important legal
issue, and one that implicates constitutional principles. (See Omaha Indemnity Co. v.
Superior Court (1989) 209 Cal. App. 3d 1266, 1273 [general criteria for determining the
propriety of an extraordinary writ include that the issue tendered presents a significant
and novel constitutional issue, or the party seeking the writ lacks an adequate means by
which to attain relief], citing Britt v. Superior Court (1978) 20 Cal. 3d 844, 851-852
[discovery order compelling disclosure of information as to plaintiffs' and nonparties'
private associational activities raised significant and novel constitutional issues of great
importance, justifying review by extraordinary writ].)
13
II. The District Attorney's Authority to Recover Restitution and Civil Penalties Is Limited
to Violations Occurring in the County in Which He Was Elected
A. Standard of Review
The issue presented by Petitioners' motion to strike—the scope of the District
Attorney's authority to seek restitution and civil penalties under the UCL—is one of law
that we review de novo. (Accord, Cal-Western Business Services, Inc. v. Corning
Capital Group (2013) 221 Cal. App. 4th 304, 309 [though a court's ruling on a motion to
strike generally is reviewed for abuse of discretion, review is de novo where the issue
involves the proper interpretation of a statute and its application to undisputed facts]; see,
e.g., Pitts v. County of Kern (1998) 17 Cal. 4th 344, 345 [whether district attorney acts on
behalf of the state or county is a question of law].) We independently determine the
proper interpretation of the Constitution and the relevant provisions of statutes including
the UCL, and are not bound by the lower court's ruling. (California Cannabis Coalition
v. City of Upland (2017) 3 Cal.5th 924, 933, 934; Burden v. Snowden (1992) 2 Cal. 4th
556, 562; Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108
Cal. App. 4th 533, 551 [interpretation and application of a statutory scheme to an
undisputed set of facts is a question of law subject to de novo review on appeal].)
In construing a statute or constitutional provision, we give the language used its
ordinary meaning, and " '[i]f the language is clear and unambiguous there is no need for
construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . . "
[Citation.] To that end, we generally must 'accord [ ] significance, if possible, to every
word, phrase and sentence in pursuance of the legislative purpose,' and have warned that
14
'[a] construction making some words surplusage is to be avoided.' [Citation.] [¶] But
'[t]he words of the statute must be construed in context, keeping in mind the statutory
purpose, and statutes or statutory sections relating to the same subject must be
harmonized, both internally and with each other, to the extent possible.' [Citation.]
'Where uncertainty exists consideration should be given to the consequences that will
flow from a particular interpretation.' " (People v. Valencia (2017) 3 Cal.5th 347, 357-
358.) Our primary task is to identify and effectuate the underlying purpose of the law.
(People v. Garcia (2017) 2 Cal.5th 792, 805.)
We also consider the doctrine of constitutional avoidance, under which "a statute
should not be construed to violate the Constitution ' " 'if any other possible construction
remains available.' " ' " (People v. Garcia, supra, 2 Cal.5th at p. 804.) "The theory
underlying the canon rests not only on a preference for avoiding the unnecessary
resolution of constitutional questions, but also on the presumption that the Legislature
(whose members have sworn to uphold the Constitution) did not 'intend[ ] to infringe
constitutionally protected liberties or usurp power constitutionally forbidden it.' " (Ibid.)
" '[W]hatever the Legislature's intent may have been, "the ultimate constitutional
interpretation must rest, of course, with the judiciary." ' " (City of San Buenaventura v.
United Water Conservation District (2017) 3 Cal.5th 1191, 1209, fn. 6.)
B. Powers of the Attorney General and District Attorneys
The California Constitution defines the powers and responsibilities of the
executive branch and its principal officers, and appoints the Attorney General as "the
chief law officer of the State . . . ." (Cal. Const., art. V, § 13; see Steen v. Appellate Div.,
15
Superior Court (2014) 59 Cal. 4th 1045, 1053.) The California Supreme Court has
summarized the Attorney General's function and powers as follows: "The Attorney
General . . . is the chief law officer of the state (Cal. Const., art. V, § 13). As such he
possesses not only extensive statutory powers but also broad powers derived from the
common law relative to the protection of the public interest. [Citations.] '[H]e represents
the interest of the people in a matter of public concern.' [Citation.] Thus, 'in the absence
of any legislative restriction, [he] has the power to file any civil action or proceeding
directly involving the rights and interests of the state, or which he deems necessary for
the enforcement of the laws of the state, the preservation of order, and the protection of
public rights and interest.' [Citation.] Conversely, he has the duty to defend all cases in
which the state . . . is a party. (Gov. Code, § 12512.)" (D'Amico v. Board of
Medical Examiners (1974) 11 Cal. 3d 1, 14-15, disapproved on other grounds in
Woodland Hills Residents Assn., Inc. v. City Council of Los Angeles (1979) 23 Cal. 3d
917, 944; see also In re Stier (2007) 152 Cal. App. 4th 63, 73, fn. 10.) Under the
Constitution, the Attorney General has "direct supervision over every district attorney . . .
in all matters pertaining to the duties of their respective offices" and has a duty to
prosecute any violations of law "[w]henever in [its] opinion . . . any law of the State is
not being adequately enforced in any county . . . ." (Cal. Const., art V, § 13; People v.
Dehle (2008) 166 Cal. App. 4th 1380, 1387.)5 In so doing, "the Attorney General shall
5 That section of the Constitution also provides that the Attorney General "may
require [the district attorney] to make reports concerning the investigation, detection,
16
have all the powers of a district attorney." (Ibid.) When exercising such supervision, the
Attorney General " '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.' " (Gov. Code, § 12550; Steen v. Appellate Div., Superior Court, 59 Cal.4th
at p. 1053.) The Attorney General is authorized by law to " 'conference' with the district
attorneys to discuss their duties 'with the view of uniform and adequate enforcement' of
state law." (Gov. Code, § 12524; Pitts v. County of Kern, supra, 17 Cal.4th at p. 358.)
A district attorney, in turn, is a " 'public prosecutor, except as otherwise provided
by law,' who . . . 'within his or her discretion shall initiate and conduct on behalf of all
people all prosecutions for public offenses' " in the name of the People of the State of
California. (Steen v. Appellate Div., Superior Court, supra, 59 Cal.4th at p. 1053,
quoting Gov. Code, §§ 100, subd. (b) ["The style of all process shall be 'The People of
the State of California,' and all prosecutions shall be conducted in their name and by their
authority"]; 26500; Pen. Code, § 684 [criminal actions are prosecuted in the name of the
people of the State of California "as a party" against the person charged with the offense];
People v. Subramanyan (2016) 246 Cal.App.4th Supp. 1, 8.) As a matter of state law, a
district attorney represents the state when preparing to prosecute and when prosecuting
criminal violations of state law. (Pitts v. County of Kern, supra, 17 Cal.4th at pp. 361-
362, 364 [holding for purposes of determining whether a county was liable in a title 42
United States Code section 1983 action]; see Graham v. Municipal Court (1981) 123
prosecution, and punishment of any crime in their respective jurisdictions as to the
Attorney General may seem advisable." (Cal. Const., art. V, § 13.)
17
Cal. App. 3d 1018, 1022 ["A county district attorney prosecuting a criminal action within a
county, acts as a state officer, exercising ultimately powers which may not be abridged
by a county board of supervisors"].)
A district attorney, however, is designated by both the Constitution (Cal. Const.,
art. XI, § 1, subd. (b)) and by statute (Gov. Code, § 24000) as a county officer.6 He or
she is elected by the county voters, and the county board of supervisors sets his or her
salary; likewise, the county has the authority to supervise the district attorney's conduct
and use of public funds. (Cal. Const., art XI, § 1, subd. (b); Gov. Code, §§ 24009, 25300,
25303.) A district attorney must be a registered voter in the county in which he or she is
elected. (Gov. Code, § 24001.) Thus, though district attorneys have plenary authority to
pursue actions in the criminal arena in the State's name (People v. Superior Court (Solus
Industrial Innovations, LLC) (2014) 224 Cal. App. 4th 33, 41, 43 (Solus Industrial)), their
"authority is territorially limited" to the confines of their county. (Pitts v. County of
Kern, supra, 17 Cal.4th at p. 361; see also People v. Eubanks (1996) 14 Cal. 4th 580, 589
[each county's district attorney is the public prosecutor vested with power to conduct on
the People's behalf "all prosecutions for public offenses within the county"]; People v.
Superior Court (Jump) (1995) 40 Cal. App. 4th 9, 13 [district attorney is a "county officer
6 Article XI, section 1, subdivision (b) of the California Constitution provides: "The
Legislature shall provide for county powers, an elected county sheriff, an elected district
attorney, an elected assessor, and an elected governing body in each county."
Government Code section 24000 states in part that "[t]he officers of a county are: [¶] (a)
A district attorney." (See also Harvey v. County of Butte (1988) 203 Cal. App. 3d 714,
720.)
18
who is authorized by statute to prosecute those crimes committed within the geographic
confines of his or her county"]; Hy-Lond, supra, 93 Cal.4th at p. 751; Singh v. Superior
Court (1919) 44 Cal. App. 64, 65-66 [a district attorney "is a county officer in at least a
geographic sense . . . that the exercise of his powers as such is limited territorially to the
county for which he [or she] has been elected"].)7 The California Supreme Court has
held that a district attorney's representation of the state in prosecuting crimes is not
inconsistent with the fact that his or her authority is territorially limited; it is in line with
an understanding that they are " 'state officials who have been locally placed throughout
the State, with an element of control granted to the officials and residents of the county
which receives the [district attorney's] services.' " (Pitts v. County of Kern, supra, 17
Cal.4th at p. 361; see also County of Los Angeles v. Superior Court (1996) 68
Cal. App. 4th 1166, 1173.)
The duties of a district attorney can extend beyond those of a public prosecutor
(Gov. Code, § 26500) to the prosecution and defense of civil causes of action. (County of
Sutter v. Board of Administration (1989) 215 Cal. App. 3d 1288, 1293, citing Gov. Code,
§§ 26520-26530.) But with respect to civil actions, a district attorney has no plenary
power. (See Solus Industrial, supra, 224 Cal.App.4th at p. 41 [district attorney's
7 Counties of course are "legal subdivisions of the state" (Cal. Const., art. XI, § 1)
and their police powers may be enforced only within their territorial limits. (Cal. Const.,
art. XI, § 7; see Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985)
39 Cal. 3d 878, 885 ["Under the police power granted by the Constitution, counties and
cities have plenary authority to govern, subject only to the limitation that they exercise
this power within their territorial limits and subordinate to state law"]; San Diego County
Veterinary Medical Assn. v. County of San Diego (2004) 116 Cal. App. 4th 1129, 1134.)
19
authority to act as the prosecutor for all public offenses does not encompass violations of
civil penalty statutes as well as criminal ones].) Rather, it is settled that a "district
attorney has no authority to prosecute civil actions absent specific legislative
authorization . . . ." (People v. Superior Court (Humberto S.) (2008) 43 Cal. 4th 737, 753;
People v. McKale (1979) 25 Cal. 3d 626, 633; Safer v. Superior Court (1975) 15 Cal. 3d
230, 236-237; Solus Industrial, at pp. 41, 43; In re Dennis H. (2001) 88 Cal. App. 4th 94,
100.) "[T]he Legislature's traditional practice has been to affirmatively specify the
circumstances in which a district attorney can pursue claims in the civil arena, not the
circumstances in which he cannot." (Solus Industrial, at p. 42.) "As the court [in Safer]
explained, '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. An examination of the types of civil litigation in
which the Legislature has countenanced the district attorney's participation reveals both
the specificity and the narrow perimeters of these authorizations.' " (Solus Industrial, at
p. 41.)
When specifying a county district attorney's duties with respect to civil matters,
the Legislature recognizes the aforementioned jurisdictional limitations. In Government
Code section 26507 (entitled "Joint prosecution in other jurisdictions"), the Legislature
authorizes a county district attorney to enter into agreements to "act jointly" with other
district attorneys "in prosecuting a civil cause of action of benefit to his own county in
the court of another jurisdiction" as long as there is an agreement with the district
attorney of the other county. (Gov. Code, § 26507.) A district attorney of one county
20
may provide legal or investigative services to a district attorney of another county
"pertaining to the prosecution of a civil cause of action in the other county," but only
"with the concurrence of the district attorney of [the other] county and the boards of
supervisors of both affected counties . . . ." (Gov. Code, § 26508.)
The foregoing constitutional and statutory provisions demonstrate that in civil
matters, as in criminal matters, a district attorney lacks authority to function outside his or
her county jurisdiction absent the consent of the district attorney of the other county.
Even when a district attorney acts in a matter within the jurisdiction of the superior court,
he or she is subject to oversight and direct supervision by the Attorney General, the
state's chief law enforcement officer obligated to ensure the uniform and adequate
enforcement of state law.
C. Relevant Provisions of the Unfair Competition Law
The UCL addresses unfair competition, and "proscrib[es] 'any unlawful' business
act or practice . . . ." (Zhang v. Superior Court (2013) 57 Cal. 4th 364, 370; see McGill v.
Citibank N.A. (2017) 2 Cal.5th 945, 954.) The law's purpose " 'is to protect both
consumers and competitors by promoting fair competition in commercial markets for
goods and services' " (McGill, at p. 954), and provide an equitable and streamlined
procedure by which public prosecutors and private individuals can sue to prevent unfair
business practices and restore money or property to victims. (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1150 (Korea Supply).) Given this
objective, remedies in the law are limited; damages cannot be recovered. (Id. at pp. 1144,
1150.)
21
Section 17204 is the UCL's standing provision. (Korea Supply, supra, 29 Cal.4th
at p. 1143 [referring to section 17204 as conferring standing]; Cruz v. PacificCare Health
Systems, Inc. (2003) 30 Cal. 4th 303, 315; Feitelberg v. Credit Suisse First Boston, LLC
(2005) 134 Cal. App. 4th 997, 1011 ["Standing is addressed in section 17204"].) It
authorizes actions for relief to be initiated by a public prosecutor, including the Attorney
General or, as here, a district attorney. (§ 17204.8) A UCL violation may be redressed
by the remedies of restitution and injunctive relief, which can be pursued by either a
public prosecutor or a private party who has suffered injury in fact, and by civil penalties,
which can only be pursued by a public prosecutor. (§§ 17203, 17204, 17206, subd. (a);
State v. Altus Finance, S.A. (2005) 36 Cal. 4th 1284, 1307; Korea Supply, supra, 29
Cal.4th at p. 1144.) The UCL's civil remedies "were enacted because criminal remedies
were too often inadequate to protect the public, especially where corporate defendants
were concerned." (People v. E.W.A.P. (1980) 106 Cal. App. 3d 315, 321.)
Section 17203, authorizing injunctive relief and orders of restitution, reads in part:
"Any person who engages, has engaged, or proposes to engage in unfair competition may
8 Section 17204 provides: "Actions for relief pursuant to this chapter shall be
prosecuted exclusively in a court of competent jurisdiction 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."
22
be enjoined in any court of competent jurisdiction. The court may make such orders or
judgments, . . . 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." Restitution is made " ' "in order to deter future violations of the unfair
trade practice statute and to foreclose retention by the violator of its ill-gotten gains." ' "
(People ex rel. Harris v. Aguayo (2017) 11 Cal.App.5th 1150, 1169.)
Section 17206 expressly confers authority on the Attorney General and district
attorneys, as well as other local prosecutors under specified circumstances,9 to bring an
action for civil penalties "in the name of the people of the State of California." The
section provides in part: "(a) 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 [or] by any district attorney . . . . in any court of competent jurisdiction."
(§ 17206, subd. (a).) Additionally, section 17206 provides: "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. 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.
9 These other local prosecutors are the same as specified in section 17204.
(§ 17206, subd. (a); see footnote 8, ante.)
23
(c).) That section requires that these penalty "funds shall be for the exclusive use by the
Attorney General, the district attorney, [and other public officials] for the enforcement
of consumer protection laws.' " (Ibid.; State v. Altus Finance, S.A., supra, 36 Cal.4th at
p. 1307.)
An action seeking injunctive relief and civil penalties filed by a public prosecutor
on behalf of the People is not primarily concerned with restoring property or benefitting
private parties; it is fundamentally a law enforcement action with a public, penal
objective. (State v. Altus Finance, S.A., supra, 36 Cal.4th at p. 1308; People v. Pacific
Land Research Co. (1977) 20 Cal. 3d 10, 17 [action seeking civil penalties under the UCL
"is fundamentally a law enforcement action designed to protect the public and not to
benefit private parties"]; accord, People ex rel. Harris v. Aguayo, supra, 11 Cal.App.5th
at p. 1159.) Civil penalties paid to the government " 'are designed to penalize a defendant
for past illegal conduct.' " (State v. Altus Finance, S.A., at p. 1308; People v. Pacific
Land Research Co., at p. 17.) Likewise, in an action filed by the People "[r]estitution is
not intended to benefit the [recipient] by the return of money, but instead is designed to
penalize a defendant for past unlawful conduct and thereby deter future violations."
(People v. Toomey (1984) 157 Cal. App. 3d 1, 26, citing Pacific Land Research Co., at
p. 17.) "While restitution would benefit the [recipient] 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." (Pacific Land Research Co., at p. 17; People v. Superior Court
(Jayhill) (1973) 9 Cal. 3d 283, 286 [restitution is only ancillary to the primary remedies
sought for the public benefit].)
24
D. Analysis
Invoking the limitations on district attorneys' ability to bring civil actions as well
as the territorial limits of their jurisdiction, petitioners argue absent a specific statutory
grant of extraterritorial authority, a district attorney of a single county may not
unilaterally seek civil relief under the UCL for conduct occurring outside his or her
county. They point out that neither the Government Code nor section 17204 of the UCL
authorizes recovery of statewide relief or civil penalties by a county district attorney.
Petitioners, along with the Attorney General, the California District Attorneys
Association, and the Chambers of Commerce as amici curiae, assert Hy-Lond, supra, 93
Cal. App. 4th 734 addresses the reach of local prosecutors' enforcement authority and
specifically prohibits " 'the right of the district attorney to surrender the powers of the
Attorney General and his fellow district attorneys to commence, when appropriate,
actions in other counties under [the UCL].' "10
10 Petitioners also rely on the federal district court's decision in M & P Investments,
supra, 213 F. Supp. 2d 1208, in which the court, citing Hy-Lond, stated "a city attorney's
authority is limited to the geographical boundaries of the constituency which he or she
represents." (M & P Investments, at p. 1216, citing City of Oakland v. Brock (1937) 8
Cal. 2d 639, 641.) In M & P Investments, the district court considered a city attorney's
authority to abate a public nuisance under Code of Civil Procedure section 731 "in the
name of the people of the State of California" and held the statute did not elevate him to
the status of a State agent with full authority commensurate with such a position. (Id. at
p. 1213 [citing People v. City of Los Angeles (1958) 160 Cal. App. 2d 494, 500 for the
proposition that " 'the only authority given to the city council of Manhattan Beach or its
city attorney by [Code of Civil Procedure] section 731 . . . is to bring an action to abate a
public nuisance existing within that city' "].) But the statute at issue expressly limited the
authority to bring a civil action under its provision to a " 'district attorney of any county
in which such nuisance exists . . . . ' " (M & P Investments, at p. 1212, fn. 11, quoting
25
In Hy-Lond, the Napa County District Attorney sued a nursing facility operator for
an injunction, civil penalties, and other relief under the UCL and false advertising laws.
(Hy-Lond, supra, 93 Cal.App.3d at p. 739.) The district attorney entered into a stipulated
judgment with the operator that covered 18 facilities located in 12 counties, in which the
defendant agreed to operate its facilities in a legal manner and pay civil penalties of
$2,500 each on 16 of 87 violations. (Hy-Lond, at pp. 748-749.) The judgment absolved
the defendant for past wrongdoings and immunized it from future unfair competition
lawsuits with respect to future alleged violations of the law and regulations. (Id. at
p. 749.) It also delegated supervision of any further proceeding to enforce the judgment
to the Napa County District Attorney and provided that the Napa County District
Attorney was "designated as the exclusive governmental agency that may enforce the
provisions of this injunction." (Ibid.)
The Attorney General (on behalf of himself and other district attorneys in other
counties where the defendant had facilities) and the California Department of Health
(the department) intervened to set aside the judgment. (Hy-Lond, supra, 93 Cal.App.3d
at pp. 739, 743.) After the court declined to do so, they then appealed, contending the
judgment was void as it precluded them from performing their statutory duties. (Id. at
p. 739.) On appeal, the defendant took the position that the Attorney General and
department lacked standing to bring the challenge, but were barred in any event by the
judgment because the district attorney had statutory authority to enter into it. (Id. at
Code Civ. Proc, § 731.) We need not rely on M & P Investments to reach our
conclusions.
26
p. 739.) Pointing out the Attorney General's motion challenged the district attorney's
authority to stipulate away the rights and duties reserved to the Attorney General and the
department (id. at p. 745), the Court of Appeal stated it was to decide whether section
17204's grant of authority on the district attorney embraced the right to restrain the
powers of other public officials and agencies. (Id. at p. 752.)
The Hy-Lond court held it did not; 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 UCL (the former provisions of 17200 to
17204, 17206, and 17207). (Hy-Lond, supra, 93 Cal.App.4th at p. 753.) The court
rejected the notion that the authority to restrain the Attorney General and other public
agencies was conferred by the mere fact the district attorney was authorized to prosecute
state law violations on behalf of the people: Government Code section 100, providing
that "[t]he style of all process shall be 'The People of the State of California,' " and that
all prosecutions shall be conducted in their name, did not "tell us who is authorized to
represent the [People] in any particular action, or the limits to which such authority
extends." (Hy-Lond, supra, 93 Cal.App.3d at p. 751, citing Gov. Code, §§ 100, 26500.)
Hy-Lond explained that though "in conducting the prosecution of violations of
state law on behalf of the people, the district attorney is acting as an agent of the state," it
only acted as such an agent "within the territorial limits of the county for which he was
elected." (Hy-Lond, supra, 93 Cal.App.3d at p. 751, citing Singh v. Superior Court,
supra, 44 Cal.App. at p. 66.) Thus, it observed, "No one could reasonably contend that in
return for a plea of guilty to an offense committed in one county, the district attorney of
27
that county could give an accused immunity from prosecution for a series of similar
offenses committed in other counties." (Hy-Lond, at p. 751.) The court rejected the
defendant's assertion that the state was a single entity with power to stipulate and
compromise actions, such that litigants should be able to negotiate with it "without the
fear that another agency or other state entity might overturn any agreement reached." (Id.
at p. 752.) While the court found some merit to that proposition in the abstract, it held it
did not prevail when the litigant sought to secure concessions that would limit the powers
of other state agents or entities that he or she knew were involved and were not parties to
the action. (Id. at p. 752.) In the Court of Appeal's view, the trial court and all concerned
had notice of the scope of the district attorney's legally defined powers, and it erred by
declining to set aside the judgment. (Id. at p. 753.) In reaching its holding, Hy-Lond
acknowledged the appellant's argument that "the rule suggested by respondent would put
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 (other district attorneys) and the Department." (Hy-
Lond, supra, 93 Cal.App.4th at p. 753.) The court did not further examine the point, but
was prompted by it to point out that the exercise of a district attorney's powers "are
limited by the recognition of a possible conflict of interest." (Id. at pp. 753-754.)
We have 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. To be sure, the UCL's scope is broad; it
28
reaches any unlawful business act or practice committed in California. (See § 17200
["As used in this chapter, unfair competition shall mean and include any unlawful, unfair
or fraudulent business act or practice"]; People ex rel. Harris v. Pac Anchor Transp., Inc.
(2014) 59 Cal. 4th 772, 783; Sullivan v. Oracle Corp. (2011) 51 Cal. 4th 1191, 1208.)
And the law, as stated above, expressly confers standing on district attorneys to bring
civil law enforcement actions in the People's name when prosecuting UCL violations.
But that grant of standing, as in criminal actions, cannot reasonably or constitutionally be
interpreted as conferring statewide authority or jurisdiction to recover such monetary
remedies beyond the county the district attorney serves, or restricting the Attorney
General's constitutional power to obtain relief on behalf of the entire state. (Accord,
Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, 336 [refusing to "conflate[] the
issue of standing with the issue of the remedies to which a party may be entitled"].)
Thus, the law does not grant the District Attorney in this case authority to unilaterally
pursue statewide monetary relief in the name of the state, as such a grant would permit
the Legislature to usurp the Attorney General's constitutional authority as the state's chief
law officer, and allow the district attorney of one county to impermissibly compromise
and bind the Attorney General and the district attorneys of other counties. Under a
contrary interpretation, a judgment in this case would bind the state under principles of
res judicata and collateral estoppel, and prevent the Attorney General and other district
29
attorneys from seeking further relief for violations occurring in their own communities.11
Both the constitution and Hy-Lond countenance this result.
We therefore construe the authority conferred on the District Attorney by the UCL
as subject to the constitutional and statutory jurisdictional limitations described above.
(See, e.g., Steen v. Appellate Div., Superior Court, supra, 59 Cal.4th at pp. 1053-1054
[interpreting statute governing conduct of judicial branch employee raising constitutional
separation of powers issues to avoid defeating or impairing function of executive branch;
"[w]hen an ambiguous statute raises serious constitutional questions, our task is not to
resolve such questions in the abstract but rather to ' " 'endeavor to construe the statute in a
manner which avoids any doubt concerning its validity' " ' "]; Tex-Cal Land
Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal. 3d 335, 346 ["[t]he
11 "Res judicata, or claim preclusion, prevents relitigation of the same cause of action
in a second suit between the same parties or parties in privity with them." (Mycogen
Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896.) "Claim preclusion arises if a second
suit involves (1) the same cause of action (2) between the same parties (3) after a final
judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it
operates to bar relitigation of the claim altogether." (DKN Holdings LLC v. Faerber
(2015) 61 Cal. 4th 813, 824.) Accepting the District Attorney's argument that it possesses
statewide jurisdiction in UCL actions, a final judgment for restitution and civil penalties
on behalf of the People for statewide violations would preclude the Attorney General and
sister district attorneys, because in all such cases the state is the party. (§ 17204; see,
e.g., Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal. App. 4th 1053
[settlement of a prior action by the attorney general and other state agencies barred under
the doctrine of res judicata another representative suit by a public interest group, who
sued " 'on behalf of the public' "]; Hy-Lond, supra, 93 Cal.App.3d at p. 751 [ in
prosecuting violations of state law on behalf of the People, the "district attorney acts for
the state within the territorial limits of the county for which he was elected"]; Pitts v.
County of Kern, supra, 17 Cal.4th at p. 361 [district attorneys are often considered state
officials despite limited jurisdictions].)
30
Legislature may not give to courts a jurisdiction beyond that conferred or authorized by
the Constitution"]; Gananian v. Wagstaffe (2011) 199 Cal. App. 4th 1532, 1540-1543
[construing Education Code so as not to infringe on district attorney's prosecutorial
discretion, an executive branch function rooted in the separation of powers].) As stated,
in construing the UCL's provisions, we must preserve its constitutional validity, and thus
we "presume . . . the Legislature understands the constitutional limits on its power and
intends that legislation respects those limits." (Kraus v. Trinity Management Services,
Inc. (2000) 23 Cal. 4th 116, 129, superseded by statute on other grounds as stated in Arias
v. Superior Court (2009) 46 Cal. 4th 969, 982-983; Gananian v. Wagstaffe, at p. 1543.)
Reviewing courts "will not impute to the Legislature an intent 'to overthrow long-
established principles of law,' . . . 'unless such intention is made clearly to appear either
by express declaration or by necessary implication.' " (Gananian, at p. 1543.)
The District Attorney argues Hy-Lond is inapposite because it involves the
enforceability of a settlement and judgment in which the defendant received immunity
and restrictions were placed on the powers of the Department of Health relating to
nursing homes; he maintains the decision is limited to its unusual facts and cannot
impede the efforts of district attorneys in protecting California consumers.12 The
District Attorney suggests another authority, People v. Mendez (1991) 234 Cal. App. 3d
12 Amici city attorneys likewise argue that Hy-Lond is a narrow decision that does
not bar a district attorney from seeking statewide remedies. They, and apparently our
dissenting colleague, characterize its discussion of a district attorney's geographic
limitations as dicta, and any extension to actions for monetary relief as a distortion of its
ruling. We disagree for the reasons stated in this opinion.
31
1773, more directly holds that a district attorney has power to bind the state contrary to
Hy-Lond, as a UCL treatise author has suggested. In Mendez, the Court of Appeal
declined to estop the Attorney General from challenging a stipulation in a criminal action
entered into by a district attorney, who was under a significant misapprehension of the
law. (Id. at p. 1784; see People v. Ford (2015) 61 Cal. 4th 282, 289.) In so holding,
Mendez recognized that the State would ordinarily be bound by the stipulation, since a
criminal action is prosecuted in the name of the People of the State of California as a
party. (Id. at p. 1783.) But the issue in that case was estoppel and the court declined to
apply the doctrine; to the extent Mendez says anything about a district attorney's power to
bind the state, it stands for the unremarkable proposition that in criminal cases, the state
is the party regardless of whether it is represented by the district attorney or the Attorney
General. It says nothing about a district attorney's authority—extraterritorially or
otherwise—to bring civil actions generally or under the UCL specifically and does not
impact our reading of Hy-Lond.
Even absent Hy-Lond, a sound interpretation of the UCL defeats the District
Attorney's arguments. Contrary to the assertions of the District Attorney and amici city
attorneys, the text of the UCL provides no basis to conclude the Legislature intended to
grant local prosecutors extraterritorial jurisdiction to recover statewide monetary relief.
The District Attorney points to the UCL's silence on the issue; he asserts the UCL's text
contains no geographical limitation on the remedies district attorneys may recover, nor is
32
such a limitation expressed in its purpose or legislative history.13 He argues the UCL
equates district attorneys' authority with that of the Attorney General, and we must abide
by the statute's plain language and not read limitations into it. The District Attorney
asserts the UCL provides for statewide injunctions that may be enforced on a statewide
basis.14 Petitioners and amici Chambers of Commerce, on the other hand, argue the
UCL's silence as to the scope of a district attorney's authority in this regard means the
district attorney has none. We agree section 17204 does not explicitly extend the limits
of district attorneys' territorial jurisdiction, or vest district attorneys with authority to
recover restitution or civil penalties for violations beyond the geographic scope of their
counties. The statute must do so specifically, to support the District Attorney's position.
(Safer v. Superior Court, supra, 15 Cal.3d at pp. 236-237; People v. Superior Court
(Humberto S.), supra, 43 Cal.4th at p. 753.)15
13 Despite this argument, the District Attorney has neither summarized nor provided
any legislative history on the issue. Nor have petitioners presented us with any
legislative history materials.
14 Whether the UCL empowers a district attorney to obtain statewide injunctive relief
was not a subject of petitioners' motion to strike below, and it is not before us. We do not
address the issue of injunctive relief or the attendant civil penalties authorized in section
17207 for violations of UCL injunctions.
15 The District Attorney further points out that the UCL does not define a "violation"
for purposes of assessing civil penalties, and it argues the question is not determined by a
"strict 'geographic boundaries' test." It is established that the question of what constitutes
a violation, as well as the amount of penalties, is left for the court to decide in its
discretion on a case-by-case basis. (People ex rel. Kennedy v. Beaumont Investment, Ltd.
(2003) 111 Cal. App. 4th 102, 127-128, quoting People v. Superior Court (Jayhill), supra,
9 Cal.3d at p. 288; see People ex rel. Harris v. Sarpas (2014) 225 Cal. App. 4th 1539,
1560.) In this case, the nature and scope of a violation, and whether such violations have
33
Additionally, the UCL's structure reflects the Legislature's understanding of public
prosecutors' jurisdictional limitations as to monetary relief. As the Attorney General
points out, section 17206, subdivision (c), which distributes penalties depending on
which agency obtains them, requires the Attorney General's Office to deposit half of its
collected civil penalties into the state's general fund, with the other half going to the
county in which the judgment is entered, while district attorneys must deposit collected
penalties only to the treasurer of their respective counties. According to the Attorney
General, in drafting this provision, the Legislature contemplated that only the Attorney
General may seek redress for statewide violations, and local prosecutors, absent a joint
prosecution agreement, may address only misconduct occurring within their city or
county. We agree that by structuring the statute so that penalties collected by a district
attorney go only to the treasurer of the county in which the judgment was entered, the
Legislature has manifested its understanding that a district attorney's redress is restricted
to local violations, benefitting the electorate to which the district attorney is accountable.
There is no indication the Legislature sought to write the UCL so broadly as to permit
county district attorneys to collect penalties from violations occurring outside their
county boundaries for their own county treasurers. To the contrary, it is reasonable to
conclude the Legislature intended to prevent local prosecutors from "step[ping] outside
[their] jurisdictional boundaries" (State ex rel. Harris v. PricewaterhouseCoopers,
occurred within the territorial jurisdiction of Orange County, are matters for the trial
court to decide in the first instance. (Accord, People v. Superior Court of Los Angeles
County (Cahuenga's The Spot), supra, 234 Cal.App.4th at p. 1384.)
34
LLP (2006) 39 Cal. 4th 1220, 1231) to recover extraterritorial civil penalties, which would
"raise[] concerns that scarce government resources might be wasted on duplicative,
overlapping, and competitive investigations of possible [violations]." (Ibid. [explaining
why the Legislature reasonably could conclude public entities—the district attorney and
city attorney representing the City and County of San Francisco—may not bring qui tam
actions on behalf of other units of government under the California False Claims Act].)
We reject the District Attorney's assertion that he has a broad "legislative
mandate" to seek restitution on behalf of individuals throughout the state. The District
Attorney cites People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104
Cal. App. 4th 508, 531, and the language of section 17203, giving courts discretion to
restore money or property acquired by means of unfair competition to "any person . . . ."
Lockyer was an action brought by the Attorney General against an insurance company, in
which the trial court ordered the defendant to make an offer of classwide or "across-the-
board" restitution to each nonsettling California consumer who had purchased a policy
from the defendant under certain circumstances. (Id. at p. 531.) The Court of Appeal
upheld the restitution order against claims it was excessive, unfair, unnecessary, and
unsupported by proof that all consumers were deprived of money or property. (Id. at pp.
531-532.) Lockyer and the other authorities relied upon by the District Attorney, which
also involve actions brought either solely by the Attorney General (People v. Superior
Court (Jayhill), supra, 9 Cal.3d at p. 286) or by the Attorney General in conjunction with
a county district attorney (People v. Pacific Land Research Co., supra, 20 Cal. 3d 10, 14),
say nothing about the extent of a local prosecutor's enforcement authority, and none of
35
the cases suggest that a local district attorney's authority is coextensive with that of the
Attorney General, or that if the district attorney alone had brought the action, the same
scope of restitution would be proper.
Nor can we draw a different conclusion, as the amici city attorneys would have us
do, from the Legislature's use of limiting language in other statutes such as Code of Civil
Procedure section 731 allowing a district attorney, county counsel or city attorney to
abate nuisances "of any county in which the nuisance exists" and giving those officers a
"concurrent right" to bring such an action. The constitutional limitations need not be
explicitly set forth, as evidenced by Government Code section 26500, which authorizes a
district attorney to "initiate and conduct on behalf of the people all prosecutions for
public offenses" (italics added) but nevertheless does not permit a district attorney to
prosecute crimes outside his or her county. (See People v. Eubanks, supra, 14 Cal.4th at
p. 589, citing Gov. Code, § 26500.) And, as the Chambers amici point out, the
expression unius est exclusion alterius inference does not apply where, as here, there is
no listing of items within one statute so as to permit an inference that the Legislature
deliberately excluded items not mentioned. (Howard Jarvis Taxpayers Assn. v. Padilla
(2016) 62 Cal. 4th 486, 515 [pointing out the canon generally applies to a specific statute
that contains a listing of items and may not apply to " 'an entire code' " or "widely
separated" statutes].)
We cannot agree with the District Attorney and other amici that the UCL's policy
objectives counter the result we reach. The District Attorney argues that to prevent a
district attorney from seeking statewide relief "would arbitrarily shield Defendants from
36
liability for the full extent of their illegal misconduct and/or require district attorney suits
in all California counties in order to secure any form of statewide relief . . . ." He asserts
that private parties may secure statewide relief, and there is "no logical reason" why
public prosecutors may not, since prosecutors do not stand in the victims' shoes and relief
is awarded to consumers, not to the prosecutor. But a private plaintiff suing under the
UCL is not entitled to seek civil penalties, and after Proposition 64, such a plaintiff must
not only show he or she has " 'suffered injury in fact and has lost money or property as a
result of' " the wrongful acts, but also meet class action requirements in order to bring a
representative action. (Arias v. Superior Court, supra, 46 Cal.4th at pp. 978, 980.) We
see nothing incongruous in the distinction. Contrary to the suggestion of the Consumer
Attorneys nothing in our decision changes the fact that a district attorney's UCL action is
brought on the state's behalf to enforce its police or regulatory power. And the District
Attorney is free to enter into agreements with the Attorney General or sister district
attorneys to obtain a delegation of authority, or engage in joint prosecutions, where the
District Attorney believes there is public benefit to a multi-jurisdictional action.16 (Cf.
16 The California District Attorneys Association points out there are already
protective mechanisms in place for statewide UCL enforcement, including multi-office
joint investigations, and multi-agency prosecutions. Even if such matters were judicially
noticeable, it does not ask this court to take judicial notice of any such agreements or
their existence. Our dissenting colleague thus relies on matters outside the record to
dispute the risk that the District Attorney's action could compromise other district
attorneys or the Attorney General. (State Compensation Ins. Fund v. WallDesign, Inc.
(2011) 199 Cal. App. 4th 1525, 1528, fn. 1 ["if [a fact] is not in the record, it did not
happen"]; see also In re Valerie A. (2007) 152 Cal. App. 4th 987, 1002-1003; In re
Marriage of Wilcox (2004) 124 Cal. App. 4th 492, 498-499.)
37
California Air Resources Board v. Hart (1993) 21 Cal. App. 4th 289, 298 [Attorney
General's written consent constituted a proper delegation to California Air Resources
Board to prosecute a violation "[g]iven the broad powers the Attorney General enjoys
derived from the Constitution and the common law and in an absence of any 'legislative
restriction' "].)
Finally, the construction urged by the District Attorney would incentivize public
prosecutors, acting in their respective county's financial self-interest, to withhold
pertinent information from their sister agencies as to the scope of violations, then "race[]
[their colleagues] to the courthouse" (State ex rel. Harris v. PricewaterhouseCoopers,
LLP, supra, 39 Cal.4th at p. 1232) in hopes of obtaining all of the civil penalties that
would otherwise be deposited in those other county treasuries. The Legislature
reasonably could decide to avoid such a scheme, and there is no indication it intended this
result.
Our foregoing conclusions are not broad policy pronouncements; we simply
interpret the UCL in the light of constitutional and statutory jurisdictional limitations so
as to avoid doubts concerning the UCL's validity.
38
DISPOSITION
Let a writ issue directing the respondent court to vacate its order denying the
motion to strike of petitioners Abbott Laboratories, AbbVie Inc., Teva Pharmaceuticals
USA, Inc., Barr Pharmaceuticals, Inc., Duramed Pharmaceuticals, Inc. and Duramed
Pharmaceuticals Sales Corp., and to enter a new and different order striking the
allegations by which the Orange County District Attorney seeks statewide monetary
relief under the UCL. The stay issued will be vacated when the opinion is final as to this
court.
O'ROURKE, J.
I CONCUR:
HUFFMAN, Acting P. J.
39
J. DATO, dissenting.
One needn't have been a justice of the Court of Appeal for long—and I have not—
to appreciate the prudential institutional limitations on an intermediate appellate court.
Our primary role is to review final decisions of the superior court for prejudicial error.
We generally avoid broad legal policy pronouncements, leaving that to the Supreme
Court and the Legislature. Sometimes policy considerations can play an important part in
our decisions, but even then we take pains to assure that the policy questions are squarely
presented by the facts of the case and are necessary to the decision we are required to
render.
I believe the majority's decision to issue writ relief in this case violates each of
these salutary guidelines. The majority then compound these judgmental errors by
deciding the ill-considered legal issue incorrectly in a manner that will materially impair
the interests of California consumers by fundamentally altering the structure of consumer
protection laws in this state. For these reasons, I respectfully dissent.
A
Let's start with what is really going on here. As is expressly authorized by statute
(Bus. & Prof. Code, § 172041), the Orange County District Attorney has charged
defendant pharmaceutical manufacturers with engaging in a statewide unfair business
practice in violation of the Unfair Competition Law. (UCL;§ 17200 et seq.) This
statewide practice has allegedly harmed consumers in Orange County and throughout
California in a similar fashion. The parties agree that should the court ultimately find the
allegations of the complaint have been proved, it has the authority to issue statewide
injunctive relief. But 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. It is hardly surprising, then, that defendants in this case sought to craft a
motion to "strike claims for restitution and civil penalties to the extent that those are not
limited to Orange County."
But there is an immediate problem with use of the motion-to-strike mechanism,
for nowhere in the motion do defendants identify any language they seek to excise from
the complaint that specifically seeks restitution or civil penalties for acts and practices
1 Statutory references are to the Business and Professions Code unless otherwise
specified.
2
that occurred entirely outside Orange County. Tellingly, the motion to strike nowhere
references the complaint's prayer for relief, which simply requests "restitution of any
money acquired by Defendants' unlawful and unfair business practices," as well as "civil
penalties for each act of unfair and unlawful competition."2 Instead, defendants' motion
sought to strike all references in the complaint to "California" users of defendants'
products and/or events that occurred "in California." But these descriptive statements are
plainly relevant to the request for statewide injunctive relief. If for no other reason, this
alone justifies the superior court's decision to deny the motion to strike.3
Even if the complaint were otherwise, what the District Attorney requests in terms
of civil penalties and restitution is largely irrelevant, for it is the court that ultimately
decides the proper scope of monetary relief. It is well settled that the court can award
restitution even in the absence of such a request by the public prosecutor. (People v.
Pacific Land Research Co. (1977) 20 Cal. 3d 10, 19 [Even "if the People had not sought
restitution … the trial court could have ordered restitution on its own motion at the
conclusion of the action on the merits."].) Why, then, do we reach out at the pleading
stage to entertain a writ petition as to a purported request for relief that is unnecessary to
the complaint?
2 The majority assert that the District Attorney's complaint "specifically sought
[civil] penalties for sales occurring throughout California" (maj. opn., ante, at p. 12), but
nowhere specify where in the complaint they find this "specific" request.
3 Significantly, although it takes no formal position on defendants' motion to strike,
the Attorney General's amicus brief agrees that allegations in the complaint regarding
defendants' statewide misconduct may be entirely proper.
3
Nor did the thoughtful trial judge make any overly broad or unnecessary
pronouncements that require correction. Contrary to the majority's assertion, she never
specifically ruled that the District Attorney could recover restitution or civil penalties for
acts that took place entirely outside Orange County. She simply denied the motion and
ordered defendants to answer the complaint. Indeed, responding to defense counsel's
comment during oral argument about the supposed importance of determining "what
damages are at issue in the case", the judge characterized those concerns as "a little
premature."4 Later she acknowledged that issues of monetary relief would be addressed,
if necessary, in the future: "[I]f . . . we are looking at civil penalties . . . , that's kind of
aways [sic] down the road."5
"Aways [sic] down the road," if I may be so bold to suggest, would be the proper
time to address the proper scope of monetary relief in this case. Specifically, if and when
the trial court decides to award restitution to consumers outside of Orange County or civil
penalties based entirely on acts occurring in other parts of the state, that will be the time
4 The fact that this comment was made in the context of argument on the demurrer
rather than the motion to strike (maj. opn., ante, at p. 11, fn. 4) hardly changes the
substance of the statement. The court was clearly stating that questions regarding the
scope of monetary relief would be addressed at a later date, not now.
5 The majority opinion inexplicably concludes that this statement "in no way
suggest[s] the court declined to reach the issue presented by petitioners' motion to strike."
(Maj. opn., ante, at p. 11, fn. 4.) I see no way to read the statement other than as
indicating the court was not ruling on the proper scope of monetary relief. And even
assuming the statement was in some way ambiguous, why would we reach out at the
pleading stage to issue an extraordinary writ correcting an implication that might or
might not have been intended by the trial judge?
4
when this issue is squarely presented. At the outset of the case—when the issue is not
raised by the pleadings and was not decided by the trial court—is indisputably not the
proper time.
B
It is well settled that an appellate court will review rulings on pleadings by writ
only "rarely" (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894) and "with extreme
reluctance" (Babb v. Superior Court (1971) 3 Cal. 3d 841, 851). While "writs are
occasionally used to provide expedited interlocutory review of pleading issues, some
extraordinary reason for this kind of priority treatment must appear." (Burrus v.
Municipal Court (1973) 36 Cal. App. 3d 233, 236, italics added.) These words of caution
are particularly applicable to 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. Neither defendants nor the
majority offer anything approaching an "extraordinary reason" to justify this court's
decision to intervene at the pleading stage.
The propriety of extraordinary writ review aside, the decision to prematurely
intervene in this case has unnecessarily placed this court in the middle of a jurisdictional
turf spat between public prosecutors. In doing so the majority attempt to construct a
solution in search of a problem. The alleged "problem" here is an overzealous district
attorney who seeks to recover (1) restitution on behalf of residents of other counties, and
(2) civil penalties based on business practices that have no connection to the district
attorney's local jurisdiction. Apparently, this bothers the Attorney General, who wishes
5
to limit and control all litigation involving statewide unlawful business practices, and
perhaps other district attorneys in other counties, who may view the actions of the Orange
County District Attorney as "poaching" on their ability to recover civil penalties that
would otherwise flow into their own county's treasury.
Business and Professions Code section 17204 broadly permits UCL enforcement
actions to be "prosecuted . . . by the Attorney General or a district attorney . . . ." Either
way, the action is pursued "in the name of the people of the State of California," just as in
criminal cases. (§ 17204.) Section 17203 permits the court, ancillary to its injunctive
power, "to restore to any person in interest any money or property, real or personal,
which may have been acquired by means of" the unlawful or unfair practice. (§17203,
italics added.) Section 17206 similarly authorizes the court to award a civil penalty for
each UCL violation, "recover[able] in a civil action brought . . . by the Attorney General
[or] by any district attorney . . . ." (§17206, subd. (a).) Nothing in any of these statutes
limits a county district attorney to prosecuting UCL actions on behalf of citizens of in
that particular county. Nor does anything in the UCL restrict a district attorney to
recovering restitution on behalf of only county residents.
As justification for reaching out at the pleading stage to prematurely decide a
major public policy issue not squarely presented or addressed by the trial court, the
majority allude to vague notions of interference with the Attorney General's
constitutional authority. They suggest that if a local district attorney can seek restitution
on behalf of residents of other counties, or civil penalties attributable to violations in
other counties, this would allow the district attorney "to impermissibly compromise and
6
bind the Attorney General and the district attorneys of other counties," preventing them
"from seeking further relief for violations occurring in their own communities." (Maj.
opn., ante, at p. 30.) They then purport to interpret the relevant sections of the UCL to
avoid a constitutional issue. (Maj. opn., ante, at p. 31.) Respectfully, the majority rely
on a phantom constitutional concern to craft a cure that is worse than even the perceived
disease.
The UCL is an exceedingly broad remedial statute designed to encourage multiple
avenues of enforcement. (See Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939, 949–950.)
Indeed, a district attorney can prosecute a UCL claim based even on alleged violations of
a statute that provides a different government agency with the sole authority to bring
enforcement actions. (People v. McKale (1979) 25 Cal. 3d 626, 632–633.) And as the
majority recognize, "the civil remedies of the [UCL] were enacted because criminal
remedies were too often inadequate to protect the public, especially where corporate
defendants were concerned." (People v. E.W.A.P. Inc. (1980) 106 Cal. App. 3d 315, 321.)
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 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.
7
Moreover, the concern about a local district attorney binding other prosecutors to
an improper or inadequate settlement is as fanciful as it is premature. Where, as here, a
district attorney brings a UCL enforcement action alleging a statewide unlawful business
practice, the Attorney General as the state's chief law enforcement officer always has the
authority to intervene and take over the case. As a prominent treatise explains:
[T]he Attorney General and the 58 district attorney offices have
entered into an arrangement to coordinate the filing of § 17200
actions. Every §§ 17200/17500 investigation must be logged onto
the computer database under the name of the prospective defendant.
That puts other DA offices and the AG on notice of the
investigation, and gives the AG the opportunity to intervene, assume
jurisdiction, and take control of the investigation and proceeding
where the matter is deemed sufficiently important to warrant it, or
where there appears to be a conflict among offices. (Stern, Cal.
Practice Guide: Business & Professions Code Section 17200
Practice (The Rutter Group 2018) ¶ 9:6.)
Accordingly, there is no practical risk that a local district attorney will "compromise and
bind" the Attorney General or district attorneys from other counties. Even if the Attorney
General does not elect to formally intervene at the outset and take over a case, it can
monitor and take appropriate action if and when the prosecuting district attorney proposes
to settle.6 Similarly district attorneys in other affected counties could consult with the
Attorney General or ask the court to be heard as to any eventual settlement.
6 The trial judge in this case was particularly sensitive to this issue. She told
defense counsel, "If you reach a settlement with the District Attorney . . . 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. . . ."
8
The majority's heavy reliance on People v. Hy-Lond Enterprises, Inc. (1979) 93
Cal. App. 3d 734 (Hy-Lond) is significantly misplaced. In that case, the Napa County
District Attorney brought a UCL action against the operator of numerous skilled nursing
facilities located throughout the state, only one of which was in Napa. Restitution was
not at issue, and no one challenged the District Attorney's ability to seek civil penalties
for violations occurring outside of Napa County.
The issue in the case involved the scope of a stipulated settlement between the
District Attorney and the defendant. In exchange for general injunctive relief (i.e.,
comply with applicable laws in the future) and payment of civil penalties, the settlement
made the Napa County District Attorney the "exclusive government agency" for
enforcing the injunction. (Hy-Lond, supra, 93 Cal.App.3d at p. 741, fn. 1.) It further
precluded anyone acting on behalf of the State of California from prosecuting any UCL
action against defendant "for alleged violations of any acts covered by the injunction."
(Id. at p. 741, fn. 2.) It also purported to bar the State or any state administrative agency
from taking any action to suspend or revoke defendant's license based on alleged acts
referred to in the complaint. (Ibid.) If the stipulation were enforced, neither the state
Attorney General nor relevant state administrative agencies nor district attorneys in other
counties could take any action against the defendant based on either past or future law
violations so long as the injunction remained in place.
Not surprisingly, the Hy-Lond court concluded that the Napa County District
Attorney exceeded his authority in agreeing to the settlement—and the court erred in
entering a judgment incorporating the settlement terms—because "an injunction cannot
9
be granted to prevent the execution of a public statute by officers of the law for a public
benefit." (Hy-Lond, supra, 93 Cal.App.3d at p. 753.) The problem was in limiting
enforcement as to future violations. (See Avco Community Developers, Inc. v. South
Coast Regional Com (1976) 17 Cal. 3d 785, 800 ["it is settled that the government may
not contract away its right to exercise the police power in the future"].) In other words,
said the Hy-Lond court, "the district attorney has purported to stipulate to restraints which
the court could not properly impose." (Hy-Lond, supra, 93 Cal.App.3d at p. 753.) Here,
the Orange County District Attorney hasn't offered to stipulate to anything, and the court
hasn't proposed to approve any stipulation. No one has suggested limiting the power of
the Attorney General or any district attorney to do anything, in the future or otherwise.
Any musings by the Hy-Lond court about territorial limitations on the authority of the
county district attorney are just that—musings.
C
The resounding theme so far is that we should not be deciding anything about a
local district attorney's authority to request restitution and civil penalties attributable to
victims and conduct outside the county. The issues the defendants seek to frame by
means of their motion to strike are not squarely—or even unsquarely—presented. And
certainly, there are no exceptional circumstances that warrant a departure from the
general rule that we do not review undeveloped legal issues at the pleading stage of a
lawsuit.
But even if the issues were properly presented in a procedural context that
demanded their resolution, the majority opinion reaches the wrong result. If the Orange
10
County District Attorney succeeds in proving his case, there is nothing inherently
problematic about the court awarding restitution to statewide victims of defendants'
unlawful business practice. As already noted, even absent a request by the District
Attorney the court is empowered by section 17203 to award restitution to "to any person"
adversely affected by the defendants' unlawful conduct. This includes, potentially,
residents of counties other than Orange. And 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. (Payne v. National Collection Systems,
Inc. (2001) 91 Cal. App. 4th 1037, 1047 ["traditional res judicata principles have no
application to a judgment resulting from an unlawful competition law lawsuit filed by the
Attorney General or another public prosecutor in a subsequent lawsuit brought by a
victim of improper business practices"]; see Kamm v. California City Development
Co. (9th Cir. 1975) 509 F.2d 205, 208 [victims who accepted restitution obtained in
Attorney General action and signed releases were barred from pursuing private action].)
Nor should there be a problem with the court awarding civil penalties based on
any statewide violations ultimately proven in this action. 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. Assume a criminal defendant is charged with multiple offenses
as part of a single crime spree that spanned several counties. Convicted of all offenses
following a trial in one of the counties, surely the defendant would not be heard to argue
that the district attorney could not request punishment and the court could not sentence
11
him on any of the crimes he committed in a different county. (See, e.g., People v. Sering
(1991) 232 Cal. App. 3d 677, 684–685.) And this would be true regardless whether the
punishment is incarceration or a monetary fine. The result in this case, involving civil
penalties, should be no different.7
The Attorney General is the "chief law enforcement officer of the State" with
supervisory authority over district attorneys. (Cal. Const. art. V, § 13.) District attorneys
are county officers. (Cal. Const. art. XI, § 1, subd. (b).) From these broad conceptual
provisions the majority somehow infer a constitutional impediment to interpreting the
UCL as allowing a district attorney to seek statewide monetary relief. (Maj. opn., ante, at
p. 32.) But constitutional restrictions and limitations on the Legislature's power "are to
be construed strictly, and are not to be extended to include matters not covered by the
language used." (Collins v. Riley (1944) 24 Cal. 2d 912, 916.) "If there is any doubt as to
the Legislature's power to act in any given case, the doubt should be resolved in favor of
the Legislature's action." (Ibid.; Methodist Hosp. of Sacramento v. Saylor (1971) 5
Cal. 3d 685, 691.) Indeed, in seeking to avoid a supposed constitutional conflict, the
majority's expansive interpretation of these constitutional provisions may have
unwittingly created one. (Schabarum v. California Legislature (1998) 60 Cal. App. 4th
7 It makes no difference that the penalties are allocated by statute to the county
treasurer when the enforcement action is prosecuted by the local district attorney.
(§ 17206, subd. (c).) It is certainly reasonable for the Legislature to conclude that
revenue from the penalties should benefit the county whose resources were used to
prosecute the action and recover the penalties. This is particularly true where the statute
specifies that the funds thus recovered are to be used exclusively for the enforcement of
consumer protection laws. (Ibid.)
12
1205, 1218 ["the only judicial standard commensurate with the separation of powers
doctrine is one of strict construction to ensure that [constitutional] restrictions on the
Legislature are in fact imposed by the people rather than by the courts in the guise of
interpretation"].)
D
Well-tested principles underlie the traditional reticence of intermediate appellate
courts to engage in interlocutory writ review of trial court procedural rulings such as the
one at issue in this case. (See Omaha Indemnity Co. v. Superior Court (1989) 209
Cal. App. 3d 1266, 1273.) Rarely do those principles so uniformly counsel against
issuance of writ relief as they do here. In choosing to ignore these sound prudential
considerations, the majority reach out to unnecessarily resolve—incorrectly in my
view—an internecine dispute among public prosecutors, to the ultimate detriment of the
"public" we are all charged with serving.
I would deny the petition.
DATO, J.
13