GOODMAN, J.
In 2011 and 2012, the People of the State of California, acting by and through the city attorney of the City of Los Angeles (the People), brought
The trial court denied the People's omnibus motion for summary judgment and, in the alternative, summary adjudication, ruling the People had failed to present evidence and argument to support their claims for civil penalties. The trial court based its ruling on its view that claims for penalties made under each of the statutory plans through which the People sought relief are elements of the causes of action alleged. The People filed a petition for writ of mandamus which we now consider at the direction of our Supreme Court.
We hold that the penalties which the People seek are among the remedies available to them rather than elements of the causes of action which they allege in the several complaints, grant the People's petition and reverse the trial court's order. We therefore issue a writ of mandate, vacating the order denying the People's motion for summary judgment or summary adjudication and remand the matter to the trial court to fully consider the People's motion, including all evidence and objections presented, in a manner consistent with this opinion.
The People's 27 civil actions against 87 defendants
The People filed a single motion for summary judgment or in the alternative, summary adjudication of issues against specified Dispensary Defendants and Property Owner Defendants (the Motion) on March 10, 2014. The Motion sought "orders granting summary judgment, orders of abatement, permanent injunctions, and such other relief as permitted under [LAMC]
The hearing on the People's Motion was conducted on May 29, 2014. Prior to the hearing the trial court issued and made available its tentative ruling. The trial judge began the substantive portion of the hearing by referring to its tentative ruling and telling counsel, "I have gone off probably in a direction that catches you totally by surprise." He then explained: "It is a problem with the summary adjudication and the summary judgment statute that this issue of the penalty is what you might call a technical requirement for there to be a summary judgment or a summary adjudication of a cause of action. You are not alone in detecting this thin wire strung across the path at about ankle level on the way to summary judgment.... [¶] The problem is ... that it is part of the cause of action and part of the judgment that the penalty, if it is discretionary, and all of these penalties are, to a degree, discretionary, that has got [sic] to be nailed down and [be] beyond factual disputes. [¶] Now, the criteria for a proper penalty is something that we have not even taken up in the papers here today because the people did not perceive that to be an essential element of their various motions, but sadly, I do believe it is."
After a brief discussion, the trial court adopted its tentative ruling, as follows:
Thereafter the court denied the People's motion in full.
The People filed and later amended their petition for writ of mandamus to direct the trial court to vacate its May 29, 2014 order denying the Motion and ordering it to either grant the Motion or consider it on its merits. Our Supreme Court granted the People's petition for review and transferred the matter back to this court with directions to vacate our order denying mandate and to issue an order to show cause why the relief sought in the petition should not be granted.
The People seek review of the trial court's denials of their Motion, arguing the rulings were made "on the erroneous assumption that evidence relating to civil penalties must be presented as part of a motion for summary judgment/summary adjudication" and based on the trial court's legal determination that adjudication of penalties is an element of each of the causes of action alleged in the 27 complaints. The People contend that the trial court erred as a matter of law and that there is no issue of fact warranting denial of the Motion.
As the People express the issue in their petition for review, "This Petition presents the issue of whether summary judgment or summary adjudication is available in a case where a plaintiff is seeking an award of civil penalties and where there is no genuine issue of material fact as to liability."
Returns were filed by four sets of real parties in interest: by Michael Braum, individually and as trustee of the Braum Family Trust (Braum); by Alan Edward Broder, individually and as the Trustee of the Broder Great Grandchildren's Trust (Broder); by Our Elco;
As the People point out in their reply, because the returns were unverified and not in the form a demurrer, the factual contentions raised may not be considered. Instead, we will treat the returns only as memoranda discussing those arguments and authorities as are relevant. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 372, fn. 5 [36 Cal.Rptr.3d 31]; Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287 [2 Cal.Rptr.3d 484]; Fed. Rules Civ.Proc., rule 56(f), 28 U.S.C.)
Review of a trial court's ruling on a motion for summary judgment or summary adjudication is typically de novo. (See Centennial Ins. Co. v. United
We also address the circumstances that the trial court made no rulings on any of the evidentiary issues presented, whether on the objections filed by several defendants to the evidence offered by the People or with respect to the requests for judicial notice filed by multiple parties, and that the People now ask that we both reverse the trial court's legal determination and grant their request for judgment or, in the alternative, for summary adjudication, on each cause of action.
The standard for appellate review of evidence objections made but not resolved in the trial court is problematic. Reid v. Google, Inc. (2010) 50 Cal.4th 512 [113 Cal.Rptr.3d 327, 235 P.3d 988] resolved certain aspects: written evidentiary objections made prior to the hearing on a motion are deemed made at the hearing on the motion (id. at pp. 526, 531-532; Code Civ. Proc., § 437c, subd. (b)(5); see id., subd. (d));
In this case, however, the hearing never included consideration of the evidence proffered or the objections to that evidence. We consider the impact of that omission on this appeal. In Reid v. Google, Inc., supra, 50 Cal.4th 512, the Supreme Court noted that, at the request of a party (Google), the Court of Appeal considered the evidence objections that had been not ruled on by the trial court. (Id. at p. 535.)
Also, the general rules discussed above will not fit the factual and procedural circumstances of this case. It is clear from the record that the trial court here did not rule on the evidence issues presented to it because it considered the evidence irrelevant to the question of law it decided, viz., that penalties were an element of each cause of action. We agree that that conclusion made the determination of the scores of evidence issues irrelevant to the particular ruling of the trial court — but they remain relevant under the statute and case law, which require that they be resolved. Section 437c, subdivision (c) contains no exception to consideration of the evidence presented at the hearing on a motion brought under that section.
For these and additional reasons we discuss later in this opinion, we decline to take up what is traditionally the trial court's role: to hear the parties present their arguments on admissibility of evidence proffered and then resolve the evidentiary issues presented.
The 27 separate complaints filed by the People have common themes. The "typical" complaint describes the People's authorization to "seek injunctive relief and civil penalties" under the LAMC, the NAL and the UCL, and then sets out allegations with respect to the particular Dispensary Defendants and Property Owner Defendants. Each complaint contains allegations concerning the three provisions of law which the People contend the named Dispensary Defendants and/or Property Owner Defendants have violated. The first cause of action contains allegations of the dates from which the People allege that the named defendants have engaged in acts "not permitted in that zone and ... in violation of LAMC section 12.21 A.1(a) ... which constitutes a public nuisance under LAMC section 11.00(1)." The second cause of action alleges that the property described was and is being used "for the purposes of unlawfully selling, serving, storing, keeping, manufacturing or giving away controlled substances ..." in violation of the NAL. The third cause of action alleges that the Dispensary Defendants have engaged in "unlawful and unfair competition within the meaning of and in violation of ... section 17200, et seq., including but not limited to, one or more unlawful business acts or
The prayers for relief seek detailed and extensive terms of prohibitory injunctive relief (e.g., from operating, or in any way allowing, use of the property for any activity involving marijuana); mandatory injunctive relief (including but not limited to ordering the removal of signs or otherwise advertising the existence of a "marijuana establishment"); abatement of the "fixtures and moveable property" in accordance with Health and Safety Code section 11581; unspecified orders remedying the nuisance as permitted by Health and Safety Code section 11573.5; closure of the premises for one year; civil penalties of $2,500 per day under each of the LAMC and the UCL; a civil penalty of $25,000 under the Health and Safety Code; and law enforcement investigative costs, attorney fees and costs of suit.
We set out the trial court's ruling in detail above. In summary, the trial court held that penalties are an element of each of the causes of action alleged in each of the 27 similar complaints filed by the People. That ruling was premised on the view that proof of the amounts of penalties constituted essential elements of each of the People's causes of action. Further, it relied on People v. Superior Court, supra, 9 Cal.3d 283 (Jayhill), as the authority for its ruling. The People disagree with the legal conclusion reached and argue that they presented all proof necessary to establish the violations of the three laws and that "the Defendants failed to refute the proof."
We agree with the trial court's citation of the general rule that, by "[a] motion for summary judgment[,] the plaintiff has the burden to `establish every element necessary to sustain a judgment in their favor.'" (See Goldstein v. Hoffman, supra, 213 Cal.App.2d at p. 811.) However, we hold that the trial court erred in applying this general principle and the principles of Jayhill, supra, 9 Cal.3d 283, in this case.
The first difficulty with the trial court's determination is that its decision is contradictory. It is true, as the trial court states near the beginning of its ruling, that an award of civil penalties is a form of relief. And it is correct that the factors listed in the trial court's ruling (taken from Bus. & Prof. Code, § 17206, subd. (b)) are among the factors properly considered by a trial court in determining the appropriate penalty amounts.
The trial court's determination that penalties are an element of the cause of action because they would have to be determined to be included in the judgment is inconsistent with a proper reading of section 437c. The trial court based its conclusion in part on its statement that penalties are "not `post judgment relief,' as the People suggest." That conclusion is an incomplete statement of the adjudication process under section 437c which, if successful, ultimately leads to entry and filing of a judgment. As the People point out in
The trial judge's contrary ruling included his expression of concern at the hearing that the case must be concluded fully by the resolution of the motion itself (other than any determination of attorney fees and costs). This concern is not supported by the text of the statute.
Section 437c clearly requires that judgment be entered at some point, but none of its subsections states expressly when that is to occur. Subdivision (c) of section 437c provides: "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
And section 437c, subdivision (k) provides: "Except when a separate judgment may properly be awarded in the action,[
The People argued in the trial court that penalties could be determined in a "post-summary judgment proceeding," giving as examples the postjudgment hearings which are held on motions for attorney fees and on motions to tax costs.
No provision of section 437c contains an express statement regarding the content or timing for entry of the judgment obtained under that section and, as noted above, section 437c, subdivision (k) indicates that the grant of a motion under this section is an important step, but not the only step, in the course of litigation which will conclude later with entry of the final judgment. Notwithstanding the breadth of its coverage of other aspects of procedure, section 437c is silent on the exact form and text which "a judgment" otherwise determined to be appropriate is to take. The section refers to the grant of "a judgment" without specifying its parameters, and wisely so given the great breadth of matters that can be determined by this abbreviated procedure. Other provisions of the Code of Civil Procedure and of the Rules of Court address the issue of the form, and to some extent the terms, of the judgment eventually entered.
Among the aspects absent from section 437c is any mention of how a trial court determines the scope of any injunction to which a plaintiff may be entitled on grant of its motion for summary judgment in an action seeking equitable relief. While it is easy to determine the substance and form of a
Determination of the appropriate scope of an injunction is sometimes apparent to the wise trial judge — and sometimes it may not be. Certainly in the latter circumstance, she or he may determine that all of the elements of a plaintiff's cause of action are established — and then hear from the parties as to the scope of the injunctive relief that is appropriate in the particular case. That hearing may involve arguments on the law, and it may include factual presentations on the feasibility of certain aspects of the injunction to be issued. Section 437c does not address the application of this power. The key point is that the grant of a motion for summary judgment in an action seeking equitable remedies may not (and does not necessarily) end with that ruling.
Ascertaining the appropriate amount of penalties to be assessed is another remedy to be determined by the trial court sitting in equity as to which
We turn now to consider the other basis upon which the trial court determined that penalties are part of the cause of action, its erroneous conclusion that Jayhill, supra, 9 Cal.3d 283, compels that conclusion.
On first look, the trial court's ruling that penalties are an element of each of the causes of action in the People's several complaints may appear plausible: one of the People's requests is that the trial court assess a penalty against each of the defendants for alleged violations of the LAMC, the NAL and the UCL. That penalties are part of the cause of action may be suggested by the title of the complaints filed by the People. Typical of these complaints is the title "Complaint for Abatement, Injunction, Equitable Relief and Civil Penalties." California Rules of Court, rule 2.111(6), requires that each complaint contains on its face a brief statement of "the character of the action or proceeding." (See Sacramento etc. D. Dist. v. Superior Court (1925) 196 Cal. 414, 421 [238 P. 687] [complaint entitled "`Complaint to quiet title and for injunction'"]; United Food & Commercial Workers Union v. Superior Court (2000) 83 Cal.App.4th 566, 571, fn. 4 [99 Cal.Rptr.2d 849] [complaint entitled "`Verified Complaint for Temporary Restraining Order and Preliminary and Permanent Injunctions and Damages'"].)
Thus: "`Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving on the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself.... Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action.... [T]he existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof,
Our Supreme Court has discussed primary rights theory in numerous cases. For example, over one hundred years ago, in Beronio v. Ventura Co. Lumber Co. (1900) 129 Cal. 232, 235 [61 P. 958], a case in which the plaintiff was seeking to both quiet title to real property and annul a sheriff's deed to the defendant under foreclosure of a mortgage made after the recorded conveyance by the mortgagor by which plaintiff claimed title, the court addressed primary rights theory, holding that "[t]he complaint [there at issue] presents only a single cause of action, viz., the enforcement of the plaintiff's right to the premises in question .... As a portion of the remedy for the enforcement of that right [plaintiff] seeks annulment of the sheriff's deed, but a plaintiff may frequently be entitled to several species of remedy for the enforcement of a single right. [Citations.]" (Id. at pp. 235-236.)
That violation of the same primary right may allow for several remedies is illustrated by another early supreme court case, Frost v. Witter (1901) 132 Cal. 421 [64 P. 705]. In Frost, our Supreme Court discussed Pomeroy's theory of primary rights in the context of the propriety of allowing an amendment to a complaint to assert an additional remedy. In allowing the addition of another potential remedy to the complaint, the court noted: "The `cause of action' is therefore to be distinguished, also, from the `remedy,' — which is simply the means by which the obligation or the corresponding action is effectuated, — and also from the `relief' sought. (Pomeroy on Pleading and Practice, sec. 453.) [¶] Applying these definitions to the case at bar, it is clear that the cause of action set up in the original and that set up in the amended complaint was simply the obligation sought to be enforced, — that is to say, the obligation to pay the money agreed to be paid, — and that the only change that took place was in the remedy by which it was sought to enforce the obligation." (Id. at p. 426.)
Thus, our Supreme Court has confirmed the distinction between primary rights and the remedies available to vindicate those rights. In Jayhill, supra, 9 Cal.3d 283,
The trial court erroneously applied Jayhill, supra, 9 Cal.3d 283, to deny the People's Motion on the basis that penalties were an element of each cause of action. The trial court first cited Jayhill for the statement that, "A civil penalty is a form of relief on a cause of action under ... section 17500," but concluded the same paragraph with the ruling that penalties are "part of the cause of action." Our Supreme Court's decision in Jayhill rejects this very conclusion and holds that penalties are not part of the cause of action for violation of Business and Professions Code section 17500.
The Supreme Court made clear that the cause of action is for violation of the particular statute, there Business and Professions Code section 17500, and that among the remedies is determination of civil penalties under Business and Professions Code section 17536. The court did so notwithstanding that Business and Professions Code section 17536 read as follows: "Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed ... in a civil action brought in the name of [specified public officials] ...." (Italics added; see Stats. 1972, ch. 711, § 2, p. 1299.)
In the present case we apply the principles established in Jayhill to the People's complaints under the corollary statute defining the offense, then Civil Code section 3369, now Business and Professions Code section 17200, and its corresponding penalty statute, Business and Professions Code section 17206.
For the same reason that the penalties provided for in Business and Professions Code section 17536 were not elements of the cause of action for false and misleading advertising under Business and Professions Code section 17500, the penalties provided for under Business and Professions Code section
Just as Jayhill holds that the Attorney General has (the People have) only one cause of action against a defendant for violating Business and Professions Code section 17500 and that civil penalties are among the remedies which may be imposed, the same principles compel similar holdings for the offenses proscribed by the LAMC and NAL.
Our holding is consistent with principles of primary rights theory discussed above. The primary rights in this case are rights created by the UCL, LAMC section 12.21A.1.(a) and the NAL. Those sections define the elements of the causes of action; of the public's rights to be free from such conduct. The related penalty sections (Bus. & Prof. Code, § 17206; LAMC § 11.00(l); Health & Saf. Code, § 11581, subd. (b)(2)) establish remedies available in the event violations of the legislatively promulgated primary rights are established.
The trial court erred in concluding that penalties are an element of the causes of action here alleged, whether under the UCL or the LAMC or the NAL.
In its written ruling the trial court disposed of the causes of action under the NAL and the LAMC in a single sentence placed immediately after it concluded that Jayhill requires proof of penalties as an element to be established on motion for summary judgment or summary adjudication of a claim under the UCL. In disposing of these claims, the trial court stated only: "The same problem exists for civil penalties under subdivision (l) of section 11.00 of the [LAMC], and [Health and Safety Code] section 11581, subdivision (b)(2)."
Neither ruling is correct. These rulings are clearly premised on the trial court's incorrect understanding of Jayhill, as discussed above. In addition, its argument that penalties are elements of the proof of violation of these causes of action is even less compelling than in Jayhill as neither of these sections contains the language discussed above, that the penalties "shall be assessed and recovered in a civil action brought in the name of the people of the State of California ...." (Bus. & Prof. Code, § 17206, subd. (a); Civ. Code, former § 3370.1.)
LAMC section 11.00(l) is equally a "penalties as a remedy" law as it provides in the second paragraph of this section: "Violations of this Code are deemed continuing violations and each day that a violation continues is deemed to be a new and separate offense and subject to a maximum civil penalty of $2,500 for each and every offense."
There is thus no support for the ruling below that these laws require that penalties be established as elements of their respective causes of action.
The People point out that cases in which monetary damages are elements of a cause of action are distinguishable from cases in which one of the potential remedies is the award of penalties to a public agency. The two monetary awards serve different purposes and this, they argue, helps in understanding why the penalties the People seek are not elements of any of their causes of action.
The example the People give is a cause of action for breach of contract, in which damages are among the elements of proof of the "offense" (of breach of contract), along with the plaintiff's performance or excuse, and the defendant's breach (and the resulting damage to the plaintiff). (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388 [272 Cal.Rptr. 387].) The matter is well established. (See, e.g., Cutting Fruit Packing Co. v. Canty (1904) 141 Cal. 692, 695 [75 P. 564]; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241 [173 Cal.Rptr.3d 518]; and cases collected at 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 515, p. 648.)
By contrast, they argue, Jayhill established that civil penalties are not an element of the cause of action under the UCL. In light of Jayhill, we conclude that the trial court did err in holding that the penalties sought here are elements of the causes of action alleged, whether under the UCL, the LAMC or the NAL.
In their reply, the People ask that we "clarify the procedure to be used to determine civil penalties in a summary judgment/adjudication motion."
We comment only briefly for two reasons. First, raising arguments for the first time in a reply brief is unfair to the other parties, who lack an opportunity to respond. (See Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1296 [135 Cal.Rptr.3d 591].) Second, our role is to review for abuse of discretion matters such as the terms of injunctions and abatement orders, as well as the amounts of penalties as they are decided by trial courts rather than to determine these matters in the first instance. Additionally, our setting bright-line rules is fraught with the potential for exceptions to those same rules and may have an adverse effect on the exercise of our traditional appellate role as well as the role of the trial courts. The People may canvas the appellate cases for guidance and commit the determination of the appropriate procedure for assessing penalties in the particular case to the prudent trial judge in the first instance.
Real parties in interest raise several contentions in their returns, but in many instances do not provide either cogent argument or cite any authority in support of their claims. We decline to consider arguments not supported by adequate legal authority or which lack citation to the extensive record in this proceeding. (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [138 Cal.Rptr.3d 428] [arguments not properly presented are deemed forfeit]; In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294 [77 Cal.Rptr.3d 305] [same]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 76 [87 Cal.Rptr.2d 754] [appellate procedural requirements must be more strictly enforced as the size of the record grows].)
Braum's contention that he is being prosecuted both civilly and criminally is factually false; accordingly, we disregard it. (See Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1037 [141 Cal.Rptr.3d 109].) Braum's argument that the People may have sought a stipulation to proceed under section 437c, subdivision (s) is in error as the People were not seeking such a limited disposition.
This case is before us because, in denying the People's motion for summary judgment or alternatively for summary adjudication, the trial judge
Although the People ask us to rule on their motion, we have noted above certain difficulties in doing so, starting with the circumstance that they do not themselves adequately brief the issues left unresolved below, such as their response to the many objections filed prior to the hearing on their motion but never discussed on the record.
The procedure at a hearing on a motion for summary judgment is outlined in Reid v. Google, Inc., supra, 50 Cal.4th 512, in the following terms: "At the summary judgment hearing, the parties have the opportunity to persuade the trial court and respond to its inquiries. (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 260 [77 Cal.Rptr.2d 781].) At that hearing, the court considers the motion, any opposition to the motion, any reply, and all supporting papers submitted before the hearing, as well as arguments and evidentiary objections made at the hearing. (See § 437c, subds. (a), (b)(1)-(4); Cal. Rules of Court, rules 3.1352, 3.1354(a).) Therefore, written evidentiary objections made before the hearing, as well as oral objections made at the hearing are deemed made `at the hearing' under section 437c, subdivisions (b)(5) and (d), so that either method of objection avoids waiver. The trial court must rule expressly on those objections. (See Vineyard Springs Estates v. Superior Court [(2004)] 120 Cal.App.4th [633,] 642-643 [15 Cal.Rptr.3d 587] [trial courts have a duty to rule on evidentiary objections presented in proper form].) If the trial court fails to rule, the objections are preserved on appeal." (Reid v. Google, Inc., supra, 50 Cal.4th at pp. 531-532, fns. omitted, original italics.)
Were we to grant the People's request that we undertake to resolve the Motion, we would deprive the trial court of its opportunity (and obligation) to
There is a further set of reasons why we decline the People's request. The People seek injunctive relief, abatement of nuisances and civil penalties. Properly considering and resolving the terms of each injunction and abatement order that may be issued in this case will depend in part on the proof adduced with respect to the circumstances and conduct of each defendant or group of defendants over and above that necessary to establish the right to an order granting either a motion for summary judgment or summary adjudication.
The judicial officer who makes the evidentiary determinations at the hearing of the People's motion will have had the opportunity to consider the entire evidentiary record and to hear argument on its significance. The trial judge may need to hear additional evidence that, while not relevant to proof of the elements of the offenses, is relevant to the proper exercise of her or his equitable powers in fashioning terms of injunctions and abatement orders, as well as in assessing appropriate amounts of civil penalties. The evidence heard on the motions may be complemented by evidence later adduced to resolve these issues. If we were to determine the motions, we nevertheless would return the matter to the trial court to engage the parties on these important "post summary judgment/adjudication" issues. That judge would need to review the evidence we would have determined in the proper exercise of his or her discretion as to these matters.
While the People's request may be understandable, it is not efficient and intrudes on the normal judicial process, by which the trial court adjudicates motions such as those at issue here, and also resolves the issues of the
The petition for writ of mandate is granted and our order to show cause is discharged.
Let a peremptory writ of mandate issue directing respondent court (a) to vacate its order denying summary judgment and summary adjudication and (b) to conduct further proceedings consistent with this opinion, including ruling on the motions for summary judgment and adjudication and, in doing so, ruling on the evidence objections made heretofore and any which may be made on the hearing of these motions. If the trial judge determines that all or any part of these motions is to be granted, he or she will then proceed after further presentation and hearing as may be appropriate, to determine the terms of any injunctive relief and abatement orders to which he or she determines the People are entitled, and the amounts of any penalties to be assessed against one or more of the several defendants. Thereafter, attorney fees and costs would be determined according to statute and the California Rules of Court.
The order staying proceedings in the trial court will terminate upon issuance of the remittitur.
The People are awarded their costs in this original proceeding.
Turner, P. J., concurred.
KRIEGLER, J., Concurring.
I concur in the result. The trial court, on its own motion, interjected and then misinterpreted the decision in People v. Superior Court (1973) 9 Cal.3d 283 [107 Cal.Rptr. 192, 507 P.2d 1400] (Jayhill) during the hearing on the People's motion for summary judgment. In my view, the writ should issue on the People's petition because Jayhill supports, rather than defeats, the position asserted by the People. I concur
LAMC section 11.00(l) provides in its first paragraph: "In addition to any other remedy or penalty provided by this Code, any violation of any provision of this Code is declared to be a public nuisance and may be abated by the City or by the City Attorney on behalf of the people of the State of California as a nuisance by means of a restraining order, injunction or any other order or judgment in law or equity issued by a court of competent jurisdiction. The City or the City Attorney, on behalf of the people of the State of California, may seek injunctive relief to enjoin violations of, or to compel compliance with, the provisions of this Code or seek any other relief or remedy available at law or equity."
The trial court also erred in its decision that the People have the burden to adduce proof of each element set out in Business and Professions Code section 17206, subdivision (b). The law is to the contrary. (People v. First Federal Credit Corp. (2002) 104 Cal.App.4th 721, 728 [128 Cal.Rptr.2d 542].)
The parties did not brief how the amounts of penalties under the UCL, the LAMC or the NAL are to be determined. It is sufficient for this proceeding to resolve the more fundamental issue of the proper elements of each of the causes of action.
We omit discussion of more recent history of the UCL, in particular the passage of Proposition 64 in November 2004, as it is not necessary to the issues presented in this case.
On its enactment as Statutes 1972, chapter 1084, section 2, page 2020, Civil Code former section 3370.1 provided: "Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the state of California...."
Civil Code former sections 3369 and 3370.1 were reenacted as Business and Professions Code sections 17200 and 17206, respectively in 1977 by Statutes 1977, chapter 299, sections 1, 2, pages 1202, 1203; see Feitelberg, supra, 134 Cal.App.4th 997.
