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Sports Betting. Best Books. Legal Online Sports Betting. Darren Rovell. Download App. Action's Preferred Sportsbook. Bet Now. Top Offers. Follow Us On Social. Sportsbook Reviews. Sports Betting Calculators. As currently construed, PASPA requires states to disregard an emerging consensus: In , 56 percent of Americans disapproved of legalizing sports betting.
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Moore, Okla. Its a Deluxe FN according to your pics. Not a Supreme. Supremes had a side safety and hinged floor plate. That is, unless someone has changed things. Anyway, many people prefer the s over the s. Also, If the bottom metal is original to the action, its probably a Presentation These were wonderful rifles. You better be afraid of a ghost!! Originally Posted by tharvey. Here is a 45yr old FN Supreme action. Hinge floor plate,side safety and checkered flat on back of bolt knob.
Joined: Jul Originally Posted by 7bru. Print Thread Switch to Threaded Mode. Key: Admin , Global Mod , Mod. All Rights Reserved. Powered by UBB. PHP: 7. Previous Thread. Next Thread. Joined: Feb Posts: 1, Moore, Okla. Originally Posted by tharvey I have a custom rifle in. Same as yours!! Commercial FN's were copied by several manufacturers in the the early 70's and marketed as such..
Joined: Jul Posts: 7 7bru Member. Originally Posted by 7bru is the bolt knurled on the flat side? Switch to Threaded Mode. Hunter's Campfire. Hunting Optics. Ask The Gunwriters. General Big Game. Deer Hunting. Elk Hunting. Backpack Hunting. Long Range Hunting.
Hunting Rifles. Combination Guns and Drillings. Express Rifles and Big Bores Only. Mausers and Military Rifles. AR and Tactical Rifles. Single Shots. The Lefty Forum. Savage Collectors. Winchester Collectors. Competitive Shooting. Predators and Varmints. Air Guns. Kids at the Campfire. My concerns regarding this possible misuse of the Unfair Competition [17 Cal. On the narrow issue before us, whether the complaint states a cause of action under the UCL, I agree with the majority.
It does. The UCL authorizes "any person," which includes corporate entities, to bring an action on that person's own behalf or in the interests of the public, to seek both redress for a past act or acts of unfair competition and an injunction against future unfair competition. An unlawful act in the business context is, by definition, an action of unfair competition. Penal Code section makes the knowing sale of tobacco products to minors unlawful.
The complaint alleged that Lucky Stores, Inc. The Legislature has declared that "[u]nless otherwise expressly provided," UCL remedies are cumulative to remedies and penalties available "under all other laws of this state. Through them the Legislature has created means by which governmental officers attempt to prevent use of, and consequent addiction to, tobacco by persons under the age of 18, and penalize those who sell tobacco products to them.
The UCL serves a completely different purpose. It provides remedies for and protection against unlawful business practices because those practices constitute unfair competition. Merchants who violate the law by selling tobacco products to minors obtain an unfair competitive advantage over their law-abiding counterparts who do not share in the profits from such illegal sales. Use of the UCL to restrain such unlawful activity is therefore appropriate notwithstanding the existence of sanctions available under the criminal law.
Compelled disgorgement of profits earned by unlawful sales deters future violations of the law and levels the playing field on which the business activity occurs. Fletcher v. Security Pacific National Bank 23 Cal. Injunctions against future violations do the same. This is true regardless of whether the unfair business activity involves violation of a criminal law. I write separately, however, to emphasize that in subsequent stages of this litigation the defendant may again raise the issues we do not reach today and the trial court may conclude that this plaintiff should not be awarded the relief sought-damages or restitution and injunctive relief.
A demurrer reaches only objections to the sufficiency of a complaint which appear on the face of the complaint or are based on matter of which the court must take judicial notice. Code Civ. As the majority notes, the prayer for relief in a complaint is not subject to demurrer.
If the allegations of the complaint suggest that the plaintiff is entitled to any relief, a demurrer asserting that the complaint fails to state a cause of action must be overruled even if the complaint seeks a type of relief to which the plaintiff is not entitled. Colvig v. RKO General, Inc.
Since the complaint alleges unlawful sales of tobacco products to minors, plaintiff may be entitled to injunctive relief. Since injunctive relief is an equitable remedy, however, whether to grant that relief lies in the sound discretion of the trial court. If, as claimed, plaintiff or its counsel has engaged in improper or unlawful conduct in gathering evidence, such as its alleged statutorily unauthorized use of underage decoys, fn.
Allen v. Mission Ins. The trial court may also determine that the prosecution of this suit, which is not supported by the Attorney General or by local prosecutors, may interfere with the ability of those officers to enforce remedies available to governmental agencies. Of equal concern, however, is the monetary relief sought by plaintiff. It is unclear from the complaint whether plaintiff seeks restitution, a remedy provided for by the UCL, or damages, a remedy not authorized by that law.
Superior Court 2 Cal. Section authorizes the court to make orders as "necessary to restore to any person in interest any money or property" gained through unfair business competition. If we are faithful to language of section and the purpose of the UCL, therefore, the restitution authorized by the UCL is a return of the profit earned from an unfair business practice to the person who was the victim of that unlawful practice.
That person might be a business competitor or a consumer. It is far from clear that the sum sought by plaintiff reflects an estimate of the profits Lucky Stores, Inc. The allegations of the complaint suggest that plaintiff actually seeks damages. The complaint alleges that the sale of cigarettes to minors, or to adults who became addicted as minors as a result of such sales, costs the State of California more than one dollar in health care costs for each dollar defendant obtained through the sales.
On that basis it also alleges that these health care costs have cost the state an amount exceeding 90 percent of defendant's gross profits from cigarette sales. If so, that remedy is not available under the UCL.
If plaintiff seeks restitution, I question whether plaintiff is entitled to any monetary relief. Stop Youth Addiction, Inc. If it seeks restitution, therefore, it must do so on behalf of business competitors who are not before the court or minor purchasers of tobacco if they are deemed victims of the unlawful sales. However, the action was not brought on behalf of business competitors of the named defendants or minors who have purchased tobacco products and does not seek return of any money to them.
An attempt by a single litigant to compel payment to the state of restitution owed to third parties who have not authorized the action raises substantial due process issues implicating the rights of both the defendant and the absent parties. Those issues arise notwithstanding plaintiff's effort to have the sums recovered paid to the State of California.
Each business competitor of the more than defendants, originally named in the complaint would have an individual right to seek restitution under the UCL. Arguably, the minor purchasers are victims fn. Since plaintiff has not sued on their behalf in a class action, none have notice and the opportunity to opt [17 Cal.
The action has no res judicata or collateral estoppel effect fn. Thus, regardless of whether plaintiff is successful in this action and Lucky Stores, Inc. A similar, but less egregious, attempt to obtain restitution on behalf of absent parties in a UCL action was rejected in Bronco Wine Co. Frank A. Logoluso Farms Cal.
There the court was concerned with ensuring due process to the absent parties even though the restitution was to be paid to those parties. I said then, and continue to believe, that "[t]he procedure utilized with regard to the nonpart[ies] raises serious fundamental due process considerations. Rendering a judgment for or against a nonparty to a lawsuit may constitute denial of due process under the United States and California Constitutions.
Lambert v. California U. New Jersey U. Due process is denied because the nonjoined party has not been given notice of the proceedings or an opportunity to be heard. Notice and a chance to be heard are essential components to the trial court's jurisdiction and for due process. Without jurisdiction over the parties, an in personam judgment is invalid.
Environmental Coalition of Orange County, Inc. Local Agency Formation Com. Logoluso Farms, supra, Cal. Thus defendants are subject to suit seeking restitution of the same profits by competitors and, possibly, the minor purchasers of tobacco products. While Bronco Wine Co. It cannot have been the intent of the Legislature which enacted the UCL when it authorized "any person" to prosecute a UCL action that private parties be permitted to seek the restitution relief for which it provides on behalf of third parties who have not authorized the action, who have no notice of the action, and who may themselves bring individual actions.
Therefore, while I concur in the judgment, I do so reluctantly because I do not believe that actions of this kind were contemplated by the Legislature and fear that if permitted they may compromise the due process rights of persons with a legitimate interest in restraining unfair competition in the business arena. Since , litigation under the so-called unfair competition law Bus. According to the author of a recent study by the state's Law Revision Commission, the California Law is unique. Winter 15 Cal.
Regulatory L. Largely as a result of judicial interpretations, the commission's tentative recommendation concluded, the Law fails to provide "any mechanism to distinguish between" plaintiffs with genuine business disputes, "true" private attorneys general, and those who use the Law as a means of leveraging settlements at the expense of the public interest.
Recommendation, p. This case is a poster child for just this sort of abusive litigation. Its sole shareholder is the mother of the corporation's attorney. He filed this lawsuit against retailers. According to the line, page-and-a-half-long complaint, each of the defendants violated section of the Penal Code by selling cigarettes to minors.
Because Penal Code section makes such sales a crime, the corporation alleges they are "unlawful" within the meaning of the UCL, thereby furnishing the statutory "predicate" for this suit. The case is one of eight nearly identical suits filed in multiple venues by the same attorney.
Each suit seeks attorney fees. Defendants are informed by correspondence from Stop Youth Addiction's attorney that it "will get the most in attorney fees from whoever stays in [the suit] longest. The record includes portions of the deposition transcript of Carol Levy, the mother of Stop Youth Addiction's attorney, taken in related litigation. Southland Corporation, supra, No. Levy testified that she and her son decided to form Stop Youth Addiction in July Before that, the two had filed six lawsuits against "computer software packages [sic].
Levy's deposition, is a for-profit corporation in which she "bought stocks" for "a thousand dollars. It has no employees. It rents office space in the same building as its attorney. His sole compensation is "from people who lost their cases, he gets attorney fees. Levy has no minor children; the corporation's only business is filing lawsuits. The record also includes a memorandum decision of the Yolo County Superior Court denying Stop Youth Addiction's request for interim injunctive relief in the Southland litigation.
Judge Warriner "note[d] with concern the evidence of attempts by Finally, it also appears from the record in the Southland case and from concessions during oral argument that Stop Youth Addiction employed children as decoys in privately run "sting" operations to obtain evidence of illegal cigarette sales by some or all of the defendants.
The transformation of the UCL began in , with this court's decision in Barquis v. We concluded that Business and Professions Code section hereafter section authorized prosecutions by " 'the Attorney General [and other public attorneys] The majority reaffirms that interpretation today, holding the UCL confers universal standing, reaches " ' "anything that [is] See maj.
That result is compelled, the majority concludes, because the language of section "plainly suggests" the Legislature meant to confer standing on anyone and everyone without any limitations. But that interpretation runs afoul of significant grammatical impediments. Section provides: "Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of ,, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city and county in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or [17 Cal.
The majority's construction makes the main clause superfluous and fails to account for other language in the statute-"in the name of the people of the State of California," "upon the complaint of," and "exclusively," for example; these words must have some meaning.
A narrower reading of the statute-one that channels UCL litigation through government prosecutors who file actions in the name of the people-is not only grammatically sound, it would explain why the drafters failed to insert any qualification on standing.
Indeed, this "gatekeeper" construction of the text is the only one consistent with rudimentary notions of procedural fairness. The same inherent limitations should temper our understanding of the term "unlawful" in the context of a UCL action. The focus of the UCL is competitive injury, not general disgruntlement. Construing the amendment adding the word "unlawful," as we did in Barquis, to extend the statute's reach to "anything that can properly be called a business practice and that at the same time is forbidden by law" Note, Unlawful Agricultural Working Conditions as Nuisance or Unfair Competition 19 Hastings L.
The Barquis court concluded the language of then section of the Civil Code did not "limit its coverage to Again, there is evidence supporting a much more modest mandate. According to a contemporaneous analysis prepared by the amendment's sponsor, the Attorney General, Assembly Bill No. James, Cal. Soto, dated June 14, The amendment thus extended the Law's reach beyond fraudulent business practices to encompass those that were "unlawful.
Superior Court 27 Cal. And it was certainly not intended to encompass criminal proceedings lying within the exclusive, constitutionally assigned powers of public prosecutors. It is one thing to assert that business conduct that is illegal and competitively harmful in his analysis, the Attorney General cited a funeral home's violation of a zoning ordinance may be enjoined.
It is only a slight extension to assert that someone injured by a fraudulent business practice may seek to have it enjoined under the Law. It is a radically different thing to say-as Barquis and subsequent decisions have said-that the only requirement for private litigation under the Law is that the defendant's conduct be denounced, somewhere, somehow, by someone, as "unlawful," and that on that basis alone anyone has standing to file a UCL action for injunctive relief and attorney fees.
It is also worth noting that the UCL's location in the Business and Professions Code comes just after the Cartwright Act and the Unfair Practices Act, and that both of these statutes require a showing of actual injury as a condition of standing to sue. See Bus. In short, even if the majority is correct in construing section to permit private enforcement, it does not necessarily follow that no limits are imposed on private actions.
A requirement of actual injury, as under the Cartwright and Unfair Practices Acts, would at least link UCL litigation to its underlying purpose. The Barquis court's endorsement of an unqualified, universal public standing to sue under the UCL, without any requirement that a plaintiff show anything more than a "public interest," also has untoward constitutional implications. It undermines the separation of powers in multiple ways: by granting private actors the right to vindicate the public interest, by extinguishing the historical limits on the right of private litigants to invoke the remedial powers of the courts, and by depriving the executive of its constitutionally assigned discretion to enforce the Law.
Conferring on every resident of the state the power to vindicate the public interest raises substantial separation of powers issues. The United States Supreme Court recently invalidated, on separation of powers grounds, a similar federal "citizen suit" standing provision.
The question presented here is whether the public interest If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art.
It would enable the courts, with the permission of Congress, 'to assume a position of authority over the governmental acts of another and co-equal department,' [citation] and to become ' "virtually continuing monitors of the wisdom and soundness of Executive action. Defenders of Wildlife U. Olson U.
Wright U. Of course, both federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers. Americans United U. The passage from Lujan quoted above fairly describes the effect of judicial constructions of the scope of section of the UCL over the past 25 years.
Lujan and similar decisions are based in part on article III, section 2 of the federal Constitution, the case or controversy provision that is the source of much of the federal law of standing. That article does not bind our courts nor does the California Constitution have a textually similar provision. Our Constitution is, however, structurally similar in important ways to the United States Constitution; both include provisions imposing a tripartite form of government.
Moreover, both the United States Supreme Court and California courts have acknowledged that the source of the separation of powers doctrine is the constitutional requirement of a divided, tripartite form of government. See, e. Wright, supra, U. In analyzing the separation of powers provision of the California Constitution, we have relied on United States Supreme Court case law construing the federal separation of powers provisions.
Workers' Comp. Appeals Bd. Valeo U. Municipal Court 46 Cal. Administrator of General Services U. State of California 4 Cal. Both the federal high court and our Courts of Appeal have also held that limitations on a litigant's entitlement to seek judicial relief-his standing-are derived from and enforce the constitutional doctrine of separation of powers. Standing limitations on who can invoke the power of the courts are traceable, in other words, to constitutional requirements derived from the tripartite structure of both governments.
Municipal Court 27 Cal. For one arm of government to exercise an "essential power" of another threatens the constitutional integrity of the coordinate branch. The doctrine of standing serves as a judicial means of preventing one branch from exercising a constitutional power that properly belongs to another. The doctrine of improper delegation also serves to resist efforts by one branch of government to usurp functions constitutionally assigned to another branch.
Board of Supervisors 20 Cal. Boll Weevil Eradication Found. Lewellen Tex. Cuomo A. Thus, the Legislature may not invest a private body with the power to draft rules having the effect of law; to do so would unconstitutionally transfer powers confided to one arm of government to private parties.
Bayside Timber Co. By requiring that the transfer of essential powers-whether from one arm to another or to a private group or person-be accompanied by the retention of controls sufficient for the delegating arm to retain ultimate power over their exercise, the delegation doctrine preserves the integrity of [17 Cal.
In the absence of such controls, the powers of one arm of government are weakened while those of another are expanded. Over the last quarter century the effect of judicial constructions of the UCL has been to weaken the power of the executive branch while strengthening the power of the judiciary.
To paraphrase the high court's opinion in Lujan, it has converted the undifferentiated public interest into an individual right vindicable in the courts, transferring from the executive its most important constitutional duty, to see that that the law is faithfully executed. Lujan v. Defenders of Wildlife, supra, U.
The courts are thereby enabled " 'to assume a position of authority over the governmental acts of another and co-equal department,' [citation] and to become ' "virtually continuing monitors of the wisdom and soundness of Executive action. Defenders of Wildlife, supra, at p. One aspect of this judicial gloss has been the absolute extinction in private litigation under the UCL of the historical requirement that before would-be litigants may invoke the remedial powers of the courts, they must demonstrate the existence of some concrete harm, some injury in fact that qualifies as the type of grievance the courts were established to hear and for which they are authorized to grant relief.
Madison 5 U. So long as litigation under the UCL is limited to the Attorney General and the other public prosecutors enumerated in section , so long, that is, as the gatekeeper interpretation of standing under the UCL prevails, there is no threat to the separation of powers. As members of the executive branch, these officials are charged by the Constitution with vindicating the public interest. And so long as a private litigant suing under the UCL is able to allege and prove a species of judicially cognizable harm, private suits under the UCL do not raise significant separation of powers concerns, either.
De Tocqueville, writing over years ago, understood the role of actual injury as a condition to a lawsuit: "It will be seen The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution. Here, of course, that requirement is not met. Stop Youth Addiction has not alleged any harm from anything these defendants have done.
It sues on the [17 Cal. The absence of any requirement that a private UCL plaintiff demonstrate some cognizable harm as a condition of maintaining suit also has other concrete and damaging effects on the separation of powers. Prosecutorial discretion, the "decision to charge," is a fundamental aspect of executive power, one our courts have held on separation of powers grounds is not subject to judicial control, either directly or indirectly.
Cimarusti 81 Cal. Smith 53 Cal. That principle extends to the decision to institute civil proceedings-a decision "analogous to a criminal proceeding with respect to the division of power between the executive and judicial branches of the government. Cimarusti, supra, at p.
In both cases, "the charging function [lies] within the exclusive control of the executive. If the executive, in the form of the public prosecutor, determines that a case has no merit and refuses to bring suit, the separation of powers doctrine bars a court from compelling it. Dix v. Superior Court 53 Cal. That principle is basic to our form of government. It is impossible, of course, for every violation of every public law to be redressed by executive action.
That does not mean, however, that the answer lies in permitting anyone who wishes to file a lawsuit to do so. Instead, the answer resides in public confidence that executive officials charged with enforcing the law will exercise an informed discretion that will maximize the effectiveness of their powers, while observing the canons of fundamental fairness that govern our public life. The United States Supreme Court has said that prosecutorial discretion "rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.
Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. United States U. Yet because so much enforcement under the UCL has been delegated to private prosecution, discretion has effectively been placed beyond the range [17 Cal.
As this case suggests, without ties to an elected executive, enforcement under the UCL becomes random and out of control. Unelected, unaccountable private enforcers, unrestrained by established notions of concrete harm or public duty, seek to advance their own agendas or to deploy the Law as leverage to increase attorney fees. Of course, the decision to enforce or to forego enforcement in a particular case is the essence of prosecutorial discretion.
Just as underenforcement may lead to a statute's nullification, overenforcement may lead to a blindly self-interested and unmodulated arbitrariness, and to vexatious and frivolous litigation. Unlike prosecutors, whose authority is curbed by established notions of ethical responsibility, private enforcement of the UCL is unchecked and unfettered. The potential for abuse in such a system is manifest. That observation brings us full circle back to the UCL standing provision and how it should be construed.
Because a judicial construction of section that confers universal citizen standing to enforce the UCL threatens the constitutional separation of powers, we are duty bound to adopt a construction that avoids that threat, especially when the statutory text accommodates such an alternative interpretation.
Ashwander v. Valley Authority U. Loder v. City of Glendale 14 Cal. Until today, California has followed the unanimous American rule that the enforcement of penal statutes is the exclusive province of public prosecutors. The reason is obvious: Their activities are governed by rules designed to ensure the public virtue of a disinterested fairness and an impersonal neutrality. Penal Code section is a criminal statute; its private enforcement is not only inappropriate, but explicitly proscribed.
Despite disclaimers to the contrary, this suit is functionally a proceeding under the Penal Code; and its enforcement lies exclusively within the powers allocated to the executive branch. Penal Code section divides enforcement of its prohibition on furnishing tobacco to minors into two kinds of proceedings-a misdemeanor prosecution and a civil action. If the charge in either proceeding is sustained, the penalty is a fine, imposed according to a graduated schedule.
In Bravo Vending v. After reviewing the statute, it concluded that "the regulatory field preempted by section is that of the penal-i. Penal Code section , in other words, comprehends the universe of penal sanctions-both criminal and civil-for the sale of tobacco to minors. Like a civil proceeding brought by a prosecutor under Penal Code section , this UCL suit also seeks monetary sanctions based on criminal conduct.
Its effect-certainly on defendants-is virtually the same as if it had been brought directly under the Penal Code. But because of its "double-sided" structure, Penal Code section leaves no room for private enforcement. Conferring unrestricted discretion on a private bounty hunter to seek restitution, injunctive relief, and attorney fees from literally thousands of small retailers on the basis of alleged violations of a penal statute is not materially different from the bifurcated scheme of Penal Code section itself.
There is one important difference, however: This privately prosecuted UCL litigation has none of the fundamental attributes of a "true" criminal proceeding-the assurance of detachment, neutrality, and evenhandedness-that inhere in the idea of the public prosecutor and that sustain, among the public at large and individual defendants, respect for law.
Because Penal Code section is a penal statute with both criminal and civil "sides," a citizen suit under the UCL based upon it for comparable relief is not a private, civil analogue to a criminal prosecution. Instead, it is a kind of private usurpation of a criminal enforcement power conferred exclusively on a class of executive officers. The United States Supreme Court and this court have articulated the core meaning of this quintessential executive function.
The prosecutor has been described as "the representative not of an ordinary party We have taken a like view, stating that "[s]ociety also has an interest in both the reality and the appearance of impartiality by its prosecuting officials. Superior Court Greer 19 Cal.
The central concern of the case law prohibiting private interests in criminal prosecutions is the likelihood that bias may deflect the prosecutor's focus from the public interest. The Supreme Court has said that a "scheme injecting a personal interest, financial or otherwise, into the enforcement [17 Cal. Jerrico, Inc. We recently relied on these same concerns, ordering the recusal of a prosecutor in light of a conflict produced by payment of part of the cost of the criminal investigation by the victim.
If private financial interests are "of [such] a nature and magnitude" that they are "likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party," the prosecutor has a "disabling conflict" requiring recusal. A direct financial benefit as a result of the outcome of a proceeding is even more offensive. People ex rel. The result the majority reaches is not compelled by law or logic.
It can prevail only at the expense of fairness and constitutional balance. Judges, however, possess an inherent power to restrain their own precedents in light of perceptions that past constructions of legislation have produced anomalous and harmful results, or that continuing expansive interpretations will impinge upon constitutional prerogatives. All of these concerns are implicated here. Not only does this private suit under the UCL threaten important interests of constitutional dimension, it is also inconsistent with the Legislature's strategy to ban children's access to tobacco and the health threat posed by its use.
Private UCL litigation based on Penal Code section may impair coordinated, statewide prosecution efforts, including the exercise of discretion under the divided penalty scheme of the statute. This case is proof of the comment, made by the author of the Law Revision Commission's report, that UCL litigation is like a Bosnian war zone: "Anyone may attack for any reason and it appears that nobody can negotiate-not only are there factions, but it is unclear who has authority to bind anyone to peace or a final resolution.
It is equally evident that no means exists in these cases-short of an actual trial-to assure the public that any of the small retailers that may already [17 Cal. Allegations in the record that plaintiff's counsel offered to forego even filing suit against individual defendants in exchange for fees, testimony that counsel is compensated exclusively from such fees, and evidence that he systematically offers to settle on terms that include attorney fees but no legally binding relief are equally disturbing.
They suggest the use of the UCL as a means of generating attorney fees without any corresponding public benefit. Any empathy for the result the majority reaches vanishes when the logistics of this suit are considered: In order to obtain evidence of alleged unlawful activity, Stop Youth Addiction's agents must induce minors to commit crimes-repeated violations of section by purchasing cigarettes. It thus appears from the record that Stop Youth Addiction and its attorney have filed this and related UCL actions against thousands of retailers alleging violations of the same penal law that Stop Youth Addiction has violated in obtaining evidence to support these suits.
And while retailers may have done so inadvertently, Stop Youth Addiction has acted deliberately. The result is so exquisitely ridiculous, it would confound Kafka. In a case that abounds with moral ironies, the worse is this: The avenger may be guilty of the greater crime.
Granting injunctive relief against a few retailers-even a thousand-in a series of private unfair competition suits is not likely to have a measurable impact on the availability of cigarettes to minors. Even if a statewide flood of such private litigation were to succeed, it would raise the prospect of inconsistent rulings where the need for uniform, statewide enforcement standards under executive control is evident.
Given the wide availability of cigarettes to children and the long-term health consequences of their use, the kind and level of regulatory effort needed to combat the threat is an issue for legislative and executive decisionmakers. The right answer implicates a calculus of costs versus results, the optimal allocation of public resources, consistency of regulatory effort, suitability of judicial enforcement, and a host of related issues.
The fact the Legislature has adopted an institutional framework for dealing with the problem undermines the utility of privately prosecuted unfair competition suits as a statewide solution to a statewide medical and social problem. Scottsdale Ins. Although California courts have not yet developed the doctrine fully, the fundamentals of an equitable jurisprudence of abstention in litigation [17 Cal.
As the cases summarized below show, the Courts of Appeal have done an admirable job of reining in the UCL's potential for adverse regulatory effects by declining to grant relief in appropriate cases. Los Angeles County etc. Authority 49 Cal. In cases such as this, where judicial constructions of the UCL have permitted self-appointed champions of the public interest to roam unhindered over the breadth of our public law, California courts should exercise their equitable powers of abstention in appropriate cases and decline to grant relief.
Instead, the majority chooses to speed us along the path to perdition, genially opting for the "worst of all possible legal worlds: abuse of process One need only read the daily newspapers to see how much easier it is to stall legislation than to enact it; how much simpler to expand what exists than to contract it.
Courts can take advantage of this political infirmity by calling it "acquiescence. Selling cigarettes to minors is against the law and those guilty of it should be punished. The creation of a standardless, limitless, attorney fees machine is not, however, the best way to accomplish that goal. The judicial gloss given the UCL has changed, probably forever, the perception of the role of private attorneys general.
We simply cannot put this genie back into the old bottle. The Legislature at least has the wherewithal to make a new bottle. Perhaps it will also have the political will. Sections through do not presently bear a legislatively imposed title or name, and we have variously referred to them. Superior Court 10 Cal.
Exchange v. Most recently, we noted that sections through "together are sometimes referred to as the 'unfair competition law' " ABC Internat. Accordingly, and as " '[m]atters otherwise subject to judicial notice must be relevant to an issue in the action' " Mangini v. Reynolds Tobacco Co. Evidence Benchbook 2d ed. The complaint is quite brief only two pages ; amicus curiae CDAA even while urging affirmance suggests, citing People v. We need not address whether the general allegation Lucky's conduct is "in violation of California Penal Code [section] " sufficiently pleads the factual underpinning of that statutory violation, for Lucky, as CDAA points out, based its demurrer entirely on the legal ground that a cause of action could never be stated and did not contest the adequacy of the skeletal complaint.
Lucky's briefing blurs what are really two separate arguments against the existence of a UCL cause of action for violations of Penal Code section On the one hand, whether the UCL requires that the underlying statute have a direct right of action turns primarily on the Legislature's intent in enacting and amending the UCL.
As will be seen, Lucky fails to demonstrate that either aspect of relevant legislative intent deprives plaintiffs of standing to maintain the present action. We note a divergence of opinion on the question presented among public officers charged with enforcing the UCL. Lucky's counsel at oral argument went so far as to suggest that Penal Code section "expressly" bars private standing to maintain UCL actions based on section The prohibition on furnishing tobacco to minors was added to the Penal Code in Historical Note, 48 West's Ann.
Code ed. See Note, supra, 30 Hastings L. Thus, to the extent Lucky relies on the STAKE Act, whether alone or with respect to its effect when combined with that of Penal Code section but not, strictly speaking, to the extent Lucky relies on section alone , Lucky's argument follows the contours of implied repeal.
See In re Thierry S. At oral argument, Lucky's counsel characterized the argument as one of "harmonization" rather than implied repeal. The same general rules of construction apply regardless of which characterization is adopted. Just prior to oral argument, plaintiff requested judicial notice of Assembly Bill No. Simple citations to such published materials would have sufficed see Mangini v.
FN In fact, the UCL to some extent actually enhances the Attorney General's ambit of operation; he or she may intervene in a private UCL action like this one, in order to pursue the section penalties available only to government plaintiffs or for any other reason.
A private plaintiff's remedial ambit is, by comparison, limited. If the Attorney General chooses not to intervene and seek section penalties, a private plaintiff obviously cannot recast a private UCL action so as to implicate them. We previously have observed: " '[T]he laws against unfair business practices were drafted in large part to prevent a wrongdoer from retaining the benefits of its illegal acts.
Under the UCL, a court may "restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. SYA's complaint includes a request for "restitution" to be paid to the State of California. Lucky emphasizes the size of SYA's request; SYA "concedes that its estimate of restitution contained in its prayer is erroneous, and if given the opportunity will amend that prayer to omit any statement as to amount of restitution.
As noted, the state appears before us as amicus curiae. We express no opinion on the appropriateness of SYA's prayer for "restitution" to be paid to the state. The cause comes before us at the demurrer stage and "a demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.
City of Los Angeles 47 Cal. As the issue is not before us on demurrer, we need not decide whether, on remand, if SYA proves to the fact finder's satisfaction the elements of its UCL cause of action, it may or may not qualify, in light of all relevant considerations, for an actual award of injunctive relief.
Amicus curiae the California Chamber of Commerce CCC requests we judicially notice a publication of the Council on California Competitiveness, but makes no attempt to relate that publication to any issue properly before us. As " '[m]atters otherwise subject to judicial notice must be relevant to an issue in the action' " Mangini v. Although simple citations to such readily available published materials would have sufficed, to the extent they contain relevant materials we grant these portions of CCC's request.
Finally, CCC requests we judicially notice, as examples of potential conflict between the UCL and federal law, a superseded Court of Appeal opinion discussing questions of UCL standing, and the petition for review in another case, Sampson v. Combe Cal. S rev. Our review of the Court of Appeal's decision in this action does not implicate any question related to the supremacy of federal law, but as the requested items are already part of our files, we grant this portion of CCC's request.
Unless otherwise specified, all statutory references are to the Business and Professions Code. A person under 18 years of age who purchases tobacco products violates Penal Code section , subdivision b. Thus a person who makes unauthorized use of minor decoys in a private "sting" operation may violate that law as a conspirator or aider and abettor of the purchase, and may violate Penal Code section by contributing to the delinquency of the minor. The STAKE Act authorizes the State Department of Health Services and local law enforcement agencies, pursuant to department guidelines and subject to strict statutory conditions, to carry out random, on-site sting operations using 14and year-old decoys whose participation then is not a violation of Penal Code section
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