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BUSINESS & PROFESSIONS CODE

Division 7 General Business Regulations

§ 17206.1. Additional civil penalty; Acts against senior citizens or disabled persons

(a) In addition to any liability for a civil penalty pursuant to Section 17206, any person who violates this chapter, and the act or acts of unfair competition are perpetrated against one or more senior citizens or disabled persons, may be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which may be assessed and recovered in a civil action as prescribed in Section 17206.

Subject to subdivision (d), any civil penalty shall be paid as prescribed by subdivisions (b) and (c) of Section 17206.

(b) As used in this section, the following terms have the following meanings:

(1) "Senior citizen" means a person who is 65 years of age or older.

(2) "Disabled person" means any person who has a physical or mental impairment which substantially limits one or more major life activities.

(A) As used in this subdivision, "physical or mental impairment" means any of the following:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss substantially affecting one or more of the following body systems: neurological; muscoloskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine.

(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional illness.

(B) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(c) In determining whether to impose a civil penalty pursuant to subdivision (a) and the amount thereof, the court shall consider, in addition to any other appropriate factors, the extent to which one or more of the following factors are present:

(1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.

(2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.

(3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.

(d) Any court of competent jurisdiction hearing an action pursuant to this section may make orders and judgments as may be necessary to restore to any senior citizen or disabled person any money or property, real or personal, which may have been acquired by means of a violation of this chapter. Restitution ordered pursuant to this subdivision shall be given priority over recovery of any civil penalty designated by the court as imposed pursuant to subdivision (a), but shall not be given priority over any civil penalty imposed pursuant to subdivision (a) of Section 17206. If the court determines that full restitution cannot be made to those senior citizens or disabled persons, either at the time of judgment or by a future date determined by the court, then restitution under this subdivision shall be made on a pro rata basis depending on the amount of loss.


Added Stats 1988 ch 823 § 1.

ANNOTATIONS
Collateral References:
Cal Forms Pl & Practice (Matthew Bender) ch 565 "Unfair Competition" IB, ch 500 "Sales and Secured Transactions"
Witkin Summary (9th ed) Equity § 93
Law Review Articles:
Review of Selected 1988 Legislation. 20 Pacific LJ 514

NOTES OF DECISIONS
Life insurance company that engaged in deceptive practices in connection with the sale of certain annuity policies to senior citizens was subject to $ 2.5 million in civil penalties and ordered to pay restitution for violating California's unfair competition law. Trial court's imposition of cumulative remedies was not an abuse of discretion. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Life insurance company who made representations to the public that its affiliate was an organization that functioned on behalf of senior citizens, rather than a sales organization, made knowingly untrue or misleading statements with the intent to induce the public to enter into obligations with respect to the company's annuity policy in violation of Cal. Bus. & Prof. Code § 17500. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463

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