The question presented is whether a private, for-profit corporation may maintain on behalf of the general public an unfair competition action against a retailer that, in violation of the Penal Code, sells cigarettes to minors. We conclude such an action is authorized under Business and Professions Code
SYA, a California corporation, brings this action in the public interest.
Defendant Lucky Stores, Inc. (Lucky) and numerous other retailers in Northern California sell cigarettes to minor children in violation of Penal Code section 308. Many of these children become addicted to cigarettes, as they would not have had Lucky not illegally sold them cigarettes. Lucky profits from addicting such children to cigarettes because many, unable to overcome their addiction, return to buy cigarettes as both children and adults.
Approximately 90 percent of cigarette sales in northern California are to children or to adults who were addicted as children and who would like, but
SYA prays for $10 billion in restitution to be paid to the State of California, an injunction forbidding Lucky to sell cigarettes to children, costs and reasonable attorney fees.
The superior court sustained Lucky's general demurrer without leave to amend, opining that section 308, which prohibits the knowing sale of cigarettes to minors, "preempts" all private enforcement of section 308. The Court of Appeal, relying on our decisions in People v. McKale (1979) 25 Cal.3d 626 [159 Cal.Rptr. 811, 602 P.2d 731] and Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197 (Children's Television), reversed the superior court's order sustaining Lucky's demurrer. We granted Lucky's petition for review.
We note at the outset what is not before us on review. Lucky and supporting amici curiae have attempted to call into question plaintiff's and its counsel's motives in prosecuting this action. Lucky points to plaintiff's for-profit status, requests judicial notice of similar actions plaintiff has filed, and notes that plaintiff names many retailer defendants. Lucky also notes one court in a different case filed by plaintiff noted with concern evidence of attempts by plaintiff's counsel to obtain monetary payments from certain defendants prior to filing the lawsuit. Lucky also suggests plaintiff's methods of gathering evidence were unlawful and that plaintiff brings this case for its own and its attorney's financial gain.
These are important concerns. As discussed below, no conclusion we reach respecting the viability of this action at demurrer stage should be taken as countenancing the illegal gathering of evidence. Generally, however, we agree with amicus curiae the California District Attorneys Association (CDAA) that only the sufficiency of plaintiff's complaint, not the seemliness of its litigation strategy or its counsel's motives, is properly before us on review at this time.
Indeed, in expressly conceding "the right of ... public prosecutors to bring claims under section 17200 such as those at issue here, to supplement the prosecutors' enforcement rights under Penal Code section 308," Lucky impliedly concedes claims under section 17200 such as those at issue here are properly stated, i.e., that selling cigarettes to minors is unfair competition under the statute.
Lucky nevertheless contends the Court of Appeal erred in ruling this action may proceed. Lucky argues SYA's suit is barred both by the UCL (because, according to Lucky, SYA lacks standing to bring a UCL action predicated on violation of a statute for the direct enforcement of which there is no private right of action) and by Penal Code section 308 (because, Lucky asserts, section 308, together with the Stop Tobacco Access to Kids Enforcement Act, Business and Professions Code sections 22950-22959 (STAKE Act), embodies the Legislature's intent to create a comprehensive, exclusive scheme for combating the sale of tobacco to minors). Lucky also contends various public policy considerations militate against permitting this action to survive demurrer.
Section 17204 provides, in full: "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
ACTR's strained construction is contrary to our previous pronouncements. As Lucky concedes, pursuant to section 17200 as construed by this court and the Courts of Appeal, "a private plaintiff who has himself suffered no injury at all may sue to obtain relief for others." (See, e.g., Children's Television, supra, 35 Cal.3d at p. 211; Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71-73 [164 Cal.Rptr. 279].) That the Legislature in section 17204 used the disjunctive when listing the entities empowered to bring UCL "[a]ctions for ... relief" plainly suggests it meant to designate such entities in the alternative. Amicus curiae points to nothing that contravenes such a plain reading of the statute.
Lucky cannot mean to suggest that either Penal Code section 308 or the STAKE Act contains any express reference to the UCL; neither does. We previously have held, moreover, that "whether a private right of action should be implied under [the predicate] statute ... is immaterial since any unlawful business practice... may be redressed by a private action charging unfair competition in violation of Business and Professions Code sections 17200 and 17203." (Children's Television, supra, 35 Cal.3d at pp. 210-211, italics added, fns. omitted; see also id. at pp. 214-215; see, e.g., Fenning v. Glenfed, Inc. (1995) 40 Cal.App.4th 1285 [47 Cal.Rptr.2d 715] [UCL action based on violation of Office of Thrift Supervision regulations]; Rubin v. Green, supra, 4 Cal.4th 1187 [UCL action based on unlawful client solicitation]; Consumer's Union of United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433 [257 Cal.Rptr. 151] [UCL action to enforce Unruh Civil Rights Act]; People v. McKale, supra, 25 Cal.3d 626 [UCL action based on violation of Mobilehome Parks Act].) Thus, as we have long recognized, it is in enacting the UCL itself, and not by virtue of particular predicate statutes, that the Legislature has conferred upon private plaintiffs "specific power" (People v. McKale, supra, 25 Cal.3d at p. 633) to prosecute unfair competition claims.
Lucky, suggesting it was dictum, urges us to reconsider our statement in Children's Television respecting the "immateriality" for UCL standing of the private enforceability vel non of particular predicate statutes. As the Court of Appeal discerned, however, the question we answered in Children's Television about the source of UCL standing was "actually involved and actually decided" (Childers v. Childers (1946) 74 Cal.App.2d 56, 61 [168 P.2d 218], italics in original) in that case. In Children's Television the parties "vigorously dispute[d]" whether a private right of action should be implied under the statute at issue (the Sherman Food, Drug and Cosmetic Law, Health & Saf. Code, former § 26000 et seq.; (the Sherman Law)). (Children's Television, supra, 35 Cal.3d at p. 210.) We held, inter alia, that "any advertising scheme involving false, unfair, misleading or deceptive advertising of food products equally violates" the Sherman Law, the UCL and the false advertising law (Children's Television, supra, 35 Cal.3d at p. 211), deriving that
Although Children's Television has been the law since 1983, the Legislature did not address the decision when it amended section 17200 in 1992. (See Stats. 1992, ch. 430, p. 1707.)
In urging us to reconsider our holding in Children's Television, Lucky relies heavily on our decisions in Blatty v. New York Times Co. (1986) 42 Cal.3d 1033 [232 Cal.Rptr. 542, 728 P.2d 1177], Rubin v. Green, supra, 4 Cal.4th 1187, and Manufacturers Life Ins. Co. v. Superior Court, supra, 10 Cal.4th 257 (Manufacturers Life). Together, Lucky suggests, these cases stand for the proposition that "a private litigant may not use the [UCL] to breathe new life into a cause of action the Legislature has denied it." Lucky's authorities are inapposite.
Blatty v. New York Times, supra, 42 Cal.3d 1033, involved an author's claims against a newspaper for failure to list his book on its "best seller" list. In Blatty, we did not discuss the UCL at all. We simply held that "... First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement...." (Blatty v. New York Times, supra, 42 Cal.3d at pp. 1044-1045.) In so holding, we affirmed a judgment dismissing numerous claims with that gravamen, including one for "unfair competition." (Id. at p. 1038.) Unlike this case, Blatty v. New York Times did not present the question whether the absence of a private right of action to enforce the predicate statute compromises a plaintiff's eligibility to maintain a UCL cause of action.
Nor, contrary to Lucky's implication, did we hold in Rubin v. Green, supra, 4 Cal.4th 1187, that a UCL action is barred whenever the predicate
Most importantly, neither Blatty v. New York Times, supra, 42 Cal.3d 1033, nor Rubin v. Green, supra, 4 Cal.4th 1187, focused on the question facing us. The outcome in those cases, rather, depended on overriding considerations not implicated here. In Blatty v. New York Times, we acted to prevent "creative pleading" from rendering nugatory the First Amendment limitations placed on litigation against speech. (42 Cal.3d at p. 1045.) In Rubin v. Green, as we later made plain, the specific bar we discerned to a UCL injunction was "the absolute bar to relief created by the litigation privilege." (Manufacturers Life, supra, 10 Cal.4th at p. 283 [discussing Rubin v. Green].)
In Manufacturers Life, also relied on by Lucky, we upheld the Court of Appeal's ruling that an unfair competition cause of action, based on conduct that violates both the Cartwright Act and the Unfair Insurance Practices Act (UIPA), is not barred by our holding in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 [250 Cal.Rptr. 116, 758 P.2d 58] (Moradi-Shalal) that the UIPA implies no private right of action. Lucky points to our statement in Manufacturer's Life that, in Rubin v. Green, in finding the plaintiff could not "plead around" the litigation privilege, we "analogized such pleading to the attempts [by other plaintiffs in other cases] to avoid the bar to `implied' private causes of action under [the UIPA]" that we had recognized in Moradi-Shalal (see Manufacturers Life, supra, 10 Cal.4th at p. 283), and to our observation that several Courts of Appeal had held the bar to implied private causes of action under the UIPA "could not be avoided by characterizing the claim as one under the UC[L]" (ibid., citing
In Manufacturers Life, moreover, we explained that Moradi-Shalal was not meant to impose sweeping limitations on private antitrust or unfair competition actions. In Moradi-Shalal, we stated, the court concluded "that the Legislature did not intend to create new causes of action when it described unlawful insurance business practices in [Insurance Code] section 790.03," but the court "did not hold that by identifying practices that are unlawful in the insurance industry... that violate the Cartwright Act, the Legislature intended to bar Cartwright Act causes of action based on those practices. Nothing in the UIPA would support such a conclusion. The UIPA nowhere reflects legislative intent to repeal the Cartwright Act insofar as it applies to the insurance industry, and the Legislature has clearly stated its intent that the remedies and penalties under the [UCL] are cumulative to other remedies and penalties." (Manufacturers Life, supra, 10 Cal.4th at p. 284, italics added, fn. omitted.)
The situation is similar here. Simply no basis exists for concluding that, by identifying and penalizing in Penal Code section 308 and the STAKE Act certain tobacco sales practices, the Legislature intended to bar unfair competition causes of action based on such practices. Section 308 and the STAKE Act nowhere reflect legislative intent to repeal other state statutes insofar as they may apply to tobacco retailers; in section 17205, on the other
Citing Safeco, supra, 216 Cal.App.3d 1491, Lucky suggests that, in prosecuting this action, SYA is attempting to circumvent the absence of a private right of action under Penal Code section 308. Undeniably, section 308 provides for its own direct enforcement only by public lawyers. It does not follow, however, that a private UCL action that "`"borrows" violations'" (Farmers Insurance Exchange v. Superior Court, supra, 2 Cal.4th at p. 383) of section 308 to establish predicate "unlawful" (§ 17200) business activity is barred. As relevant here, Safeco and similar cases on which Lucky relies, such as Maler v. Superior Court, supra, 220 Cal.App.3d 1592, and Rubin v. Green, supra, 4 Cal.4th 1187, stand at most for the proposition the UCL cannot be used to state a cause of action the gist of which is absolutely barred under some other principle of law. In Safeco and Maler, the concern was that "[t]o permit plaintiff to maintain [the UCL] action would render Moradi-Shalal meaningless" (Safeco, supra, 216 Cal. App.3d at p. 1494); in Rubin v. Green, the operative principle was the absolute privilege afforded litigation adversaries. Nothing in section 308, the STAKE Act or any other provision of law creates an analogous bar to this action.
Thus, contrary to Lucky's assertion, neither Blatty v. New York Times, Rubin v. Green nor Manufacturers Life (to the extent it embraced Safeco and its progeny's interpretation of Moradi-Shalal) implies a private UCL claim is barred whenever the predicate statute fails to afford a private right of action.
The Attorney General, representing the State of California as amicus curiae, suggests that construing section 17204 to confer standing on SYA would transform the criminal law into a body of civil law giving rise to private causes of action.
The Attorney General's suggestion is accurate only in the sense that violations of the Penal Code are, indisputably, "unlawful" (§ 17200) and, consequently, when committed as a "business act or practice" (ibid.), subject to UCL remediation in an action brought by "any person" (§ 17204). Recognition of that fact, however, "transforms" neither the criminal law nor the UCL.
Since their appearance in the early 1930's, California's unfair competition statutes have always expressly provided that, "in a case of ... unfair competition" (Civ. Code, former § 3369, subd. (1)), civil actions "to enforce a penal law" (ibid.) "may be prosecuted by ... any person" (id., subd. (5)), as well as by public prosecutors. (See generally, Note, Former Civil Code Section 3369: A Study In Judicial Interpretation (1979) 30 Hastings L.J. 705, 706 (Note).) In fact, the modern UCL had its inception in the Legislature's expansion in 1933, to include unfair competition cases, of an exception (previously just for nuisance cases) to the long-standing principle that "`[n]either specific nor preventive relief can be granted [inter alia, to private parties] to enforce a penal law....'" (Note, supra, 30 Hastings L.J. at p. 706, and fn. 5, quoting Civ. Code, former § 3369.)
In sum, Lucky and its supporting amici curiae fail to demonstrate the Court of Appeal erred in concluding that, pursuant to the plain language and legislative history of section 17204, and consistent with our previous pronouncements, SYA has standing to prosecute this UCL action.
2. Legislative bar
As previously discussed, in maintaining its right to prosecute this action, SYA relies on the Legislature's express provision that "[a]ctions for any relief pursuant to [the UCL] shall be prosecuted ... by any person acting for the interests of itself, its members or the general public." (§ 17204.) Also as noted, in construing section 17204, "the courts have repeatedly permitted persons not personally aggrieved to bring suit for injunctive relief under the unfair competition statute on behalf of the general public, in order to enforce other statutes under which parties would otherwise lack standing." (Consumers Union of the United States, Inc. v. Fisher Development, Inc., supra, 208 Cal. App.3d at p. 1440, italics in original, citing People v. McKale, supra, 25 Cal.3d at p. 632.) Nevertheless, sometimes mischaracterizing its argument as one for preemption, Lucky contends the Legislature impliedly barred this
The doctrine of preemption applies, generally, when it is necessary to determine what displacing effect federal law, pursuant, inter alia, to the supremacy clause of the United States Constitution (id., art. VI, cl. 2), may have on state laws (see generally, Smiley v. Citibank (1995) 11 Cal.4th 138, 147-148 [44 Cal.Rptr.2d 441, 900 P.2d 690]) or state law, pursuant, inter alia, to article XI, section 7 of the California Constitution, may have on local laws (see generally, Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897-898 [16 Cal.Rptr.2d 215, 844 P.2d 534]). In substance, Lucky's argument is more akin to one of implied repeal.
The precursor to the UCL was former Civil Code section 3369, which originally read: "`Neither specific nor preventive relief can be granted to
In 1977, the Legislature moved the UCL to section 17200 et seq. of the Business and Professions Code, "a move not intended to alter it substantively nor to affect the applicability of pre-existing interpretive case law." (Fellmeth, California's Unfair Competition Act: Conundrums and Confusions (Jan. 1995), published as part of Recommendation on Unfair Competition Litigation (Nov. 1996) 26 Cal. Law Revision Com. Rep. (1996) p. 232, fns. omitted.) The UCL now appears between the similarly titled Unfair Practices Act beginning at section 17000, which is roughly analogous to the federal Clayton Act (e.g., prohibiting predatory below cost and price discrimination offenses), and section 17500, which prohibits deceptive advertising. (Ibid.)
More recently, in 1992, the Legislature amended section 17200 to expand the definition of unfair competition to include "any unlawful, unfair, or fraudulent business act or practice" (See Stats. 1992, ch. 430, § 2, p. 1707 [inserting italicized language]) and amended section 17203 to expand the scope of injunctive relief to encompass past activity and out-of-state activity. (See Stats. 1992, ch. 430, § 3, p. 1707 [replacing "person performing or proposing to perform an act of unfair competition within this state" with "person who engages, has engaged, or proposes to engage in unfair competition"].) The 1992 amendments overruled former case law that had limited the statute's application. (See State of California ex rel. Vande Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1169-1170 [252 Cal.Rptr. 221, 762 P.2d 385] [UCL's "`practice' requirement envisions something more than a single transaction"].)
As the foregoing demonstrates, whenever the Legislature has acted to amend the UCL, it has done so only to expand its scope, never to narrow it. Consistently, just last term, the Legislature rejected several pieces of proposed legislation designed to restrict UCL standing in various ways. (See
Moreover, contrary to Lucky's contention, the Legislature's enactment of the STAKE Act belies, rather than supports, the notion that it meant Penal Code section 308 to be the exclusive means in California of combating sales of tobacco to minors. The STAKE Act requires the Department of Health Services (DHS), inter alia, to "[e]stablish and develop a program to reduce the availability of tobacco products to persons under 18 years of age through the enforcement activities" (§ 22952, subd. (a)) therein described, including "random, onsite sting inspections at retail sites" (id., subd. (c)). The Legislature's requirement of DHS "enforcement activities" in the STAKE Act plainly indicates it does not intend section 308 to be an exclusive device.
As SYA points out, Lucky in its briefing treats the STAKE Act as if its effect were to make DHS an additional public enforcer of Penal Code section 308. But section 308 makes no reference to DHS and DHS has no power under the STAKE Act (or any other statute) directly to enforce section 308. Thus, by their own terms, section 308 and the STAKE Act simply coexist, but not because either statute incorporates the other. Rather, the two enactments coexist because conduct "subject to either a criminal action ... or to a civil action" (§ 308, subd. (a)) under section 308 is also subject to other, cumulative state laws, including the STAKE Act.
Lucky cites Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 403 [20 Cal.Rptr.2d 164] (Bravo Vending) for the proposition that "the regulatory field preempted by section 308 is that of the penal — i.e., both criminally and civilly proscribed — aspects of the sale of cigarettes to minors." (Ibid.) At issue in Bravo Vending was whether Penal Code section 308 preempts a city ordinance that banned vending machine sale of cigarettes. While it may be that "the Legislature intended to preempt all local government regulation of the subject matter of section 308" (Bravo Vending, supra, 16 Cal. App.4th at p. 400), such would have no necessary consequence for our purposes, as neither the UCL nor this action is "local government regulation," and preemption is not an issue. Moreover, to the extent Bravo Vending is relevant, it aids SYA, not Lucky. That the Legislature meant section 308 to be the exclusive means of combating sales of
Nor can the notion of Penal Code section 308's exclusivity be reconciled with the Legislature's enactment of restrictions on tobacco promotion such as the tobacco use prevention provisions, Health and Safety Code section 104350 et seq., and Health and Safety Code section 118950, subdivision (b), which bans giving free cigarette samples on public sidewalks and in other locations.
Plainly, the mere fact the Legislature has enacted penal laws concerning minors and tobacco does not impliedly repeal any UCL remedy. "Notwithstanding Section 3369 of the Civil Code [providing that "[n]either specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, except in the case of nuisance or as otherwise provided by law"], specific or preventive relief may be granted to enforce a penalty, forfeiture, or penal law in a case of unfair competition." (§ 17202.) The UCL affords both "specific" and "preventive" relief, restitution being an example of the former (see Civ. Code, § 3367) and an injunction an example of the latter (id., § 3368).
Nor does the Legislature's failure expressly to preserve any UCL remedy when enacting Penal Code section 308 or the STAKE Act impliedly repeal any part or aspect of the UCL. "The omission to specify or affirm in [the Penal] Code any liability to damages, penalty, forfeiture, or other remedy imposed by law and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does not affect any right to recover or enforce same." (Pen. Code, § 9.)
It is undisputed that "[c]ivil actions lie in favor of crime victims. Violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224 [44 Cal.Rptr.2d 197].) We have recognized, moreover, that "even though a specific statutory enforcement scheme exists, a parallel action for unfair competition is proper pursuant to applicable provisions of the Business and Professions Code." (People v. McKale, supra, 25 Cal.3d at p. 632; see, e.g., Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284, 1299, fn. 6 [22 Cal.Rptr.2d 20] [recognizing right of private plaintiff to sue to enjoin acts made unlawful by the Knox-Keene [HMO licensing] Act]; Children's Television, supra, 35 Cal.3d at pp. 210-211 [unfair competition action available
The unfair competition law, moreover, states that "[u]nless otherwise expressly provided, the remedies or penalties provided by this chapter [i.e., ch. 5, Enforcement, Bus. & Prof. Code, §§ 17200-17209] are cumulative to each other and to the remedies or penalties available under all other laws of this state." (§ 17205, italics added.) Thus, even were we to conclude (contrary to our previous discussion) that Penal Code section 308 and the STAKE Act are a comprehensive scheme for combating teen smoking, we would still confront the fact that in neither of these provisions is it "expressly provided" that remedies under the UCL and those statutes are not cumulative to each other.
Our conclusion is reinforced by the observation that, when the Legislature has desired to limit UCL remedies, it has "expressly provided" (§ 17205) for such limitation. For example, the Rosenthal-Roberti Item Pricing Act provides that its remedies "are the exclusive remedies available to any person, state or local agency or law enforcement official." (Civ. Code, § 7104.)
We need not decide in this case whether section 17205's statement that UCL remedies are cumulative to others "unless expressly otherwise provided" necessarily precludes the Legislature from ever impliedly repealing any aspect of UCL standing. For present purposes, we merely conclude Lucky has not overcome, in this case, the strong presumption against implied repeal (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 419) of the UCL. That is, Lucky fails to demonstrate that Penal Code section 308, even when considered in light of the STAKE Act, is "irreconcilable" (People v. Hazelton, supra, 14 Cal.4th at p. 122) with the UCL's broad express standing provision. Still less has Lucky shown that, either alone or in light of the STAKE Act, section 308 and the UCL are "`"clearly repugnant, and so inconsistent that the two cannot have concurrent operation."'" (14 Cal.4th at p. 122.)
Lucky suggests this action creates the "offensive" possibility that a prosecutor would reap an inappropriate financial benefit, but SYA has no affiliation with any governmental agency and, in any event, requests that "defendants jointly and severally pay restitution to the State of California," not to SYA.
Trial courts, of course, are empowered to inquire into the bona fides of private lawsuits, including this or any private UCL action. Code of Civil Procedure section 128.7 provides that the filing of a pleading certifies that, to the attorney or unrepresented party's "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," the pleading is not being presented "primarily for an improper purpose," the claims, defenses and other legal contentions therein are "warranted," and the allegations and other factual contentions "have evidentiary support." (Id., subd. (b).) If these standards are violated, the court can impose an appropriate sanction sufficient to deter future misconduct, including a monetary sanction. (Id., subds. (c), (d).) Further, under Code of Civil Procedure section 1021.5, whether or not plaintiff's counsel is entitled to any attorney fees and,
Most fundamentally, as previously discussed, SYA is not suing under, or to enforce, Penal Code section 308 or the STAKE Act. Rather, SYA seeks to enforce the UCL by means of restitution and an injunction
Amicus curiae the State of California warns that our permitting SYA to predicate its UCL action on Penal Code section 308 will encourage "vigilante justice." More generally, Lucky suggests public confidence in the judicial system will be undermined if private plaintiffs are permitted to maintain UCL actions predicated on violations of the Penal Code. Citing People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 [218 Cal.Rptr. 24, 705 P.2d 347] (invalidating a contingent fee for a city nuisance-abatement lawyer), Lucky argues that public confidence in the judicial system will be strained if what Lucky characterizes as "private bounty hunters" are permitted to bring UCL actions based on violation of section 308. Lucky asserts that the "essential neutrality" that engenders public confidence in prosecutors is missing when a partisan advocate, seeking a client's (rather than the public's) best interest, relies upon a penal statute.
In this connection, Lucky and supporting amici curiae assert that SYA, in order to gather evidence for maintenance of this suit, hired minors to
Even assuming the truth of Lucky's allegations respecting SYA's prelitigation practices, it does not follow that our recognizing the viability of this UCL action — at the demurrer stage — would place an imprimatur on illegal practices. Our previous pronouncements make plain a private party has no privilege or immunity to employ illegal means to obtain evidence for a lawsuit. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 212 [271 Cal.Rptr. 191, 793 P.2d 524].) It need hardly be noted that illegal "sting" operations are not inherent to private UCL actions and our countenancing the latter in no way endorses the former.
Lucky also argues that, because the UCL has broad standing and remedial provisions, the operation of which may impact the California business climate, this court should exercise restraint in considering whether to construe the UCL as supporting a private unfair competition action predicated on violation of section 308. We are not persuaded.
Lucky may be correct in observing the UCL is broadly cast. Lucky asserts the UCL has lax standing provisions, lacks res judicata effect and carries the
As this court has often recognized, "`the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government....'" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [59 Cal.Rptr.2d 671, 927 P.2d 1175], quoting Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 [47 Cal.Rptr.2d 108, 905 P.2d 1248].) "It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature. `This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.'" (14 Cal.4th at p. 633, quoting Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365 [5 P.2d 882].)
For the preceding reasons, the judgment of the Court of Appeal is affirmed.
George, C.J., Mosk, J., Baxter, J., Kennard, J., and Cottle, J.,
Although I have serious reservations as to the ultimate viability of this lawsuit, I concur in the judgment and the reasoning underlying the conclusion that plaintiff has standing to prosecute this lawsuit. My concerns regarding this possible misuse of the Unfair Competition
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. (§§ 17201, 17203.) An unlawful act in the business context is, by definition, an action of unfair competition. (§ 17200.) Penal Code section 308 makes the knowing sale of tobacco products to minors unlawful. The complaint alleged that Lucky Stores, Inc., sold tobacco products to minors.
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." (§ 17205.) Nothing in the later enacted Stop Tobacco Access to Kids Enforcement Act (§ 22950 et seq.; (STAKE Act)) suggests, let alone "expressly provide[s]," a legislative intent to limit the scope or availability of the UCL insofar as the unlawful sale of tobacco products is concerned. There is neither an express nor an implied pro tanto repeal of the UCL in the STAKE Act or in Penal Code section 308. The STAKE Act and Penal Code section 308 reflect legislative awareness of the grave health risks posed by use of tobacco products. 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 (1979) 23 Cal.3d 442, 451 [153 Cal.Rptr. 28, 591 P.2d 51] [construing identical language in section 17535 applicable
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. Proc., § 430.30.) 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. (1965) 232 Cal.App.2d 56, 66 [42 Cal.Rptr. 473]; see also Franchise Tax Board v. Firestone Tire & Rubber Co. (1978) 87 Cal.App.3d 878, 885 [151 Cal.Rptr. 460].) 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,
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. "[D]amages are not available under section 17203. [Citations.] The only nonpunitive monetary relief available under the Unfair Business Practices Act is the disgorgement of money that has been wrongfully obtained or, in the language of the statute, an order `restor[ing] ... money ... which may have been acquired by means of ... unfair competition.' (§ 17203; cf. §§ 17206, 17207 [penalties].)" (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266 [10 Cal.Rptr.2d 538, 833 P.2d 545].)
To the extent that plaintiff seeks a monetary remedy, it is in the prayer for $10 billion to be paid to the State of California. "Restore" and "restitution" have a well understood meaning. "Restore" means "return" and "restitution" is the act of returning the thing which is restored. Section 17203 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 17203 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., and other defendants who were also named, but are no longer parties made from unlawful sales of tobacco products to minors. 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. The prayer that the defendant pay $10 billion "restitution" to the State of California therefore appears to be a claim
If plaintiff seeks restitution, I question whether plaintiff is entitled to any monetary relief. Stop Youth Addiction, Inc., does not claim to be a victim of the alleged unlawful business activities of the named defendants. 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 400 defendants, originally named in the complaint would have an individual right to seek restitution under the UCL. Arguably, the minor purchasers are victims
A similar, but less egregious, attempt to obtain restitution on behalf of absent parties in a UCL action was rejected in Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699 [262 Cal.Rptr. 899]. 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." (Id. at p. 717.) 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 (1957) 355 U.S. 225, 228 [78 S.Ct. 240, 242-243, 2 L.Ed.2d 228]; Twining v. New Jersey (1908) 211 U.S. 78, 110-111 [29 S.Ct. 14, 24-25, 53 L.Ed. 97].) Due process is denied because the nonjoined party has not been given notice of the proceedings or an opportunity to be heard. (Ibid.) 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. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 173 [167 Cal.Rptr. 735].)
"For over 50 years California has recognized that a judgment may not be entered either for or against one who is not a party to an action or proceeding. [Citations.]" (Bronco Wine Co. v. Frank A. Logoluso Farms, supra, 214 Cal. App.3d at p. 717.)
The rights of prospective UCL plaintiffs here cannot be foreclosed by the action of Stop Youth Addiction, Inc., which might agree to settle the claim for less than its worth, may not competently prosecute the lawsuit, and which seeks payment to the state of sums actually due to the prospective
While Bronco Wine Co. v. Frank A. Logoluso Farms, supra, 214 Cal.App.3d 699, addressed only the due process rights of the absent parties, its recognition that those parties are not bound by the judgment makes the potential for denial of the rights of the defendants in an action such as this clear. 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 1972, litigation under the so-called unfair competition law (Bus. & Prof. Code, §§ 17200-17209; (hereafter UCL or the Law)) has been a growth industry. According to the author of a recent study by the state's Law Revision Commission, the California Law is unique. "No statute of which we are aware in this state or nation confers the kind of unbridled standing to so many without definition, standards, notice requirements, or independent review.... [I]t is unclear who can sue for whom, what they have to do, whether it is final, and as to whom." (Fellmeth, Unfair Competition Act Enforcement by Agencies, Prosecutors, and Private Litigants: Who's on First? (Winter 1995) 15 Cal. Regulatory L. Rptr., pp. 1, 11 (hereafter Fellmeth).) 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. (Tent. Recommendation, Unfair Competition Litigation (May 1996) Cal. Law Revision Com. Rep.,
Stop Youth Addiction, Inc., is a for-profit corporation. Its sole shareholder is the mother of the corporation's attorney. He filed this lawsuit against 431 retailers. According to the 28-line, page-and-a-half-long complaint, each of the defendants violated section 308 of the Penal Code by selling cigarettes to minors. Because Penal Code section 308 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 complaint seeks $10 billion in restitution as an incident to an injunction against defendants, and attorney fees. The case is one of eight nearly identical suits filed in multiple venues by the same attorney.
The record includes portions of the deposition transcript of Carol Levy, the mother of Stop Youth Addiction's attorney, taken in related litigation. (Stop Youth Addiction, Inc. v. Southland Corporation, supra, No. 94-V-072446-C). Mrs. Levy testified that she and her son decided to form Stop Youth Addiction in July 1994. Before that, the two had filed six lawsuits against "computer software packages [sic]." Stop Youth Addiction, according to Mrs. Levy's deposition, is a for-profit corporation in which she "bought stocks" for "a thousand dollars." The corporation has no other source of funding. 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." Mrs. 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 ... [Stop Youth Addiction's attorney] to obtain
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.
I. STATUTORY CONSTRUCTION
The transformation of the UCL began in 1972, with this court's decision in Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 [101 Cal.Rptr. 745, 496 P.2d 817] (Barquis), a case in which we adopted a "sweeping" construction of the Law, broadening both its standing provision and conduct falling within its ambit. We concluded that Business and Professions Code section 17204 (hereafter section 17204) authorized prosecutions by "`the Attorney General [and other public attorneys] ... or by any person acting for the interests of itself, its members or the general public.'" (Barquis, supra, at p. 109, italics added.) The majority reaffirms that interpretation today, holding the UCL confers universal standing, reaches "`"anything that [is]... a business practice and that ... is forbidden by law"'" (People v. McKale (1979) 25 Cal.3d 626, 632 [159 Cal.Rptr. 811, 602 P.2d 731]), and makes the existence of a private right of action conferred by the underlying statute "immaterial," because "any unlawful business practice ... may be redressed by a private action" under the UCL (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 210-211 [197 Cal.Rptr. 783, 673 P.2d 660]). (See maj. opn., ante, at pp. 561-563.)
That result is compelled, the majority concludes, because the language of section 17204 "plainly suggests" the Legislature meant to confer standing on anyone and everyone without any limitations. (Maj. opn., ante, at p. 561.) But that interpretation runs afoul of significant grammatical impediments. Section 17204 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 750,000, 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
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 1963 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 (1968) 19 Hastings L.J. 398, 408-409, fn. omitted) means the statute is completely disconnected from any notion, not only of competitive harm, but any injury at all. The Barquis court concluded the language of then section 3369 of the Civil Code did not "limit its coverage to ... `deceptive' practices, but instead explicitly extends to any `unlawful, unfair or deceptive business practice'; the Legislature, in our view, intended by this sweeping language to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur." (Barquis, supra, 7 Cal.3d at p. 111, fn. omitted, second italics added.)
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. 2929 (1963 Reg. Sess.) was intended to make clear that the Law applied to business conduct that, while "unfairly" competitive, was not fraudulent. (Mem. from Charles A. James, Cal. Dept. of Justice, to Assemblyman Phillip L. Soto, dated June 14, 1963.) The 1963 amendment thus extended the Law's reach beyond fraudulent business practices to encompass those that were "unlawful." As the Attorney General's memorandum makes clear, however, it was not intended to confer standing on the universe at large to enjoin, as a recent Court of Appeal opinion put it, "any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory regulatory, or court-made." (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838-839 [33 Cal.Rptr.2d 438]
It is one thing to assert that business conduct that is illegal and competitively harmful (in his 1963 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. & Prof. Code, §§ 16750, 17071.) In short, even if the majority is correct in construing section 17204 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.
II. SEPARATION OF POWERS
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. "Vindicating the public interest ..." the court said, "is the function of Congress and the Chief
The passage from Lujan quoted above fairly describes the effect of judicial constructions of the scope of section 17204 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. (U.S. Const., arts. I, II, III; Cal. Const., art. III, § 3.) 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.g., Allen v. Wright, supra, 468 U.S. at p. 752 [104 S.Ct. at p. 3325]; State of California v. Superior Court (1986) 184 Cal.App.3d 394, 397 [229 Cal.Rptr. 74].)
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. (See, e.g., Allen v. Wright, supra, 468 U.S. at p. 751 [104 S.Ct. at pp. 3324-3325]; People v. Municipal Court (1972) 27 Cal.App.3d 193, 207 [103 Cal.Rptr. 645, 66 A.L.R.3d 717].) 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. (See, e.g., Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 11-12 [97 Cal.Rptr. 431]; Hamilton et al., The Federalist Papers, No. 70 (Rossiter ed. 1961) pp. 423-431; cf. Boll Weevil Eradication Found. v. Lewellen (Tex. 1997) 952 S.W.2d 454, 465-467; Kuttner v. Cuomo (1989) 147 A.D.2d 215 [543 N.Y.S.2d 172, 174].) 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., supra, 20 Cal. App.3d at pp. 11-12.) 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
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, 504 U.S. at p. 577 [112 S.Ct. at p. 2145]; Cal. Const., art. V, §§ 1, 13.) 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."'" (Lujan v. Defenders of Wildlife, supra, at p. 577 [112 S.Ct. at p. 2145].)
C. Injury in Fact
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. "The province of the courts," as Chief Justice Marshall explained, "is, solely, to decide on the rights of individuals." (Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 170 [2 L.Ed. 60, 71].) So long as litigation under the UCL is limited to the Attorney General and the other public prosecutors enumerated in section 17204, 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 160 years ago, understood the role of actual injury as a condition to a lawsuit: "It will be seen ... that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. 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." (De Tocqueville, Democracy in America (Ryan ed. 1994) p. 102.)
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
D. Prosecutorial Discretion
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. (People v. Cimarusti (1978) 81 Cal.App.3d 314, 323 [146 Cal.Rptr. 421]; People v. Smith (1975) 53 Cal.App.3d 655, 658 [126 Cal.Rptr. 195].) 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." (People v. Cimarusti, supra, at p. 323.) In both cases, "the charging function [lies] within the exclusive control of the executive." (Ibid.) 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 (1991) 53 Cal.3d 442, 451 [279 Cal.Rptr. 834, 807 P.2d 1063] ["The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor."]; State of California v. Superior Court, supra, 184 Cal. App.3d at p. 397 [judicial trespass on the Attorney General's internal policy is close to violation of constitutional mandate].) 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." (Wayte v. United States (1985) 470 U.S. 598, 607 [105 S.Ct. 1524, 1530, 84 L.Ed.2d 547].)
Yet because so much enforcement under the UCL has been delegated to private prosecution, discretion has effectively been placed beyond the range
That observation brings us full circle back to the UCL standing provision and how it should be construed. Because a judicial construction of section 17204 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 (1936) 297 U.S. 288, 347-348 [56 S.Ct. 466, 483, 80 L.Ed. 688] (conc. opn. of Brandeis, J.); cf. Loder v. City of Glendale (1997) 14 Cal.4th 846, 859 [59 Cal.Rptr.2d 696, 927 P.2d 1200].)
III. PRIVATE ENFORCEMENT OF PENAL STATUTES
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 308 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 308 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. City of Rancho Mirage (1993) 16 Cal.App.4th 383 [20 Cal.Rptr.2d 164], the Court of Appeal understood this arrangement. After reviewing the statute, it concluded that "the regulatory field preempted by section 308 is that of the penal — i.e., both criminally and civilly proscribed —
Like a civil proceeding brought by a prosecutor under Penal Code section 308, 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 308 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 308 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 308 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 ... but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633, 79 L.Ed. 1314].) 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." (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 268 [137 Cal.Rptr. 476, 561 P.2d 1164].)
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
IV. A JURISPRUDENCE OF ABSTENTION
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. That strategy, embodied in Penal Code section 308 and the Stop Tobacco Access to Kids Enforcement Act (Bus. & Prof. Code, §§ 22950-22959), is placed at risk by suits like this one. Private UCL litigation based on Penal Code section 308 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." (Fellmeth, supra, 15 Cal. Regulatory L. Rptr. at p. 2, original italics.)
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
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 308 — 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.
The utility of private UCL suits based on Penal Code section 308 is also problematic. 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. (See, e.g., Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 137-138 [62 Cal.Rptr.2d 620].)
Although California courts have not yet developed the doctrine fully, the fundamentals of an equitable jurisprudence of abstention in litigation
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." The legislative problem is especially acute in cases like this one, where change threatens the balance of advantage between two politically potent and contentious groups — those who sue under the Law, and those who defend. 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.