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BUSINESS & PROFESSIONS CODE

Division 7 General Business Regulations

§ 17200. Definition

As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.


Added Stats 1977 ch 299 § 1.
Amended Stats 1992 ch 430 § 2 (SB 1586).

ANNOTATIONS

Amendments:

1992 Amendment:
Added (1) "any" after "and include"; and (2) "act or" after "fraudulent business".

Historical Derivations:
Former CC § 3370, as added Stats 1949 ch 652 § 1.

Note:
Stats 1992 ch 430 provides:
SEC. 6. In enacting the amendments contained in this act, it is the intent of the Legislature not to change the decisional law of this state regarding the methods of determining the number of violations on which an award of civil penalties is based.
Cross References:
Violation of provisions governing sale of telephone equipment as unfair competition: B & P C § 17364
Violation of disclosure requirements for sale or advertising of gray market goods as violation of this section: CC § 1797.86
Unfair insurance practices: Ins C §§ 790 et seq
Referral to Healthy Families program for purpose of ending employment-related coverage: Ins C § 12693.81
Although a guest alleged that a hotel failed to give members of the public notice of the hotel's valet parking charge, the trial court properly ruled a parking ticket provided sufficient notice of the parking charge and the public was not likely to be deceived by the practice of providing notice via the parking ticket. Plotkin v Sajahtera, Inc. (2003, 2nd Dist) 106 Cal App 4th 953, 131 Cal Rptr 2d 303
Collateral References:
Witkin Summary (9th ed) Equity §§ 93, 95, 96, 99
Cal Jur 3d (Rev) Consumer and Borrower Protection Laws §§ 66, 68, 81, 371, Ejectment and Related Remedies § 126
Unfair competition law in 1994: the iceberg floats on. 16 CEB Bus L Rep 280
California Unfair Competition Act suits premised on violations of federal law: courts should look before they leap. 17 CEB Bus L Rep 53
Advertising liability insurance coverage for unfair competition. CEB Civ Lit Rep Vol. 12 No. 7 p 291
Insurance coverage for claims brought under California's unfair business practices statute. CEB Civ Lit Rep Vol. 12 No. 8 p 341
California's unfair business practices law expanded-SB 1586. CEB Civ Lit Rep Vol. 14 No. 8 p 481
California's unfair business practices statutes: Settling the "nonclass class" action and fighting the "two-front war." 12 CEB Civ Lit Rep No. 3 p 95
Miller & Starr, Cal Real Estate 2d § 4:27
Law Review Articles:
Unfair sales law. 38 ABAJ 921
Trade name infringement as unfair competition. 40 Cal LR 571
California law of unfair competition. 41 Cal LR 38
Unfair competition in ideas and titles. 42 Cal LR 77
The Role of Fluid Recovery in Consumer Protection Litigation: Kraus v. Trinity Management Services. 90 Cal LR 959
Unfair Competition Act enforcement by agencies, prosecutors, and private litigants: who's on first? 15 Cal Regul L Rep No. 1, p. 1
California Business and Professions Code § 17200: Insurance bad faith revival? 19 Cal Trial Law Forum No. 9 p 367
Intellectual property: Kendall-Jackson Winery v E. & J. Gallo Winery (1998, CA9 Cal) 150 F.3d 1042. 29 Golden Gate LR 122
The Future of the Concurrent Use of Trademarks Doctrine in the Information Age. 23 Hast Comm/Ent LJ 687
Reconstructing First Amendment Doctrine: The 1990s Revolution of the Central Hudson and O'Brien Tests. 23 Hast Comm/Ent LJ 723
Unfair competition by misappropriation of radio program content. 5 Hast LJ 81
Use of identical names on noncompetitive activities as constituting unfair competition. 6 Hast LJ 115
Greater representation for California consumers-fluid recovery, consumer trust funds, and representative actions. 46 Hast LJ 797
Copying of another's product as unfair competition. 29 LA Bar B 195
Premium treatment: has a state court gone too far in shielding the insurance industry from the Unfair Business Practices Act? 17 LA Law No. 9, p. 38
Reforming California's Unfair Competition Act. 20 LA Law No. 5, p. 76
Practice Tips: Res Judicata and California's Unfair Competition Law. > 26 Los Angeles Lawyer 20 (April, 2003)
Symposia: Financial Abuse of the Elderly in California. 36 Loyola U of LA LR 667
Law relating to consumer frauds. 8 San Diego LR 50
California's unfair competition act: will it give rise to yet another wave in smoking and health litigation? 35 Santa Clara LR 193
California law of unfair competition: unprivileged imitation. 28 SCLR 240
Arbitration of "Public Injunctions": Clash Between State Statutory Remedies and the Federal Arbitration Act. 76 SCLR 433
The new employment claim for the new century? 27 SF Atty No. 2, p. 39
Advising clients regarding liability for unfair competition. 48 St BJ 542
Piracy on records. 5 Stan LR 433
Rubin v. Green: Is Unrestricted Judicial Access at the expense of the victim the right choice? 25 UWLA LR 325
Nineteenth Annual Health Law Symposium: The Effective Use of California's Unfair Competition Law to Redress Managed Care Abuses. 22 Whittier LR 467
Attorney General's Opinions:
State law prohibits display of food illuminated by colored light if such light alters appearance of food. 58 Ops. Cal. Atty. Gen. 750
A dentist who advertises that he will waive his patient's copayment under a dental insurance plan in which an insurance company will pay a fixed percentage of the dentist's usual fee, in an effort to attract patients does not violate the California laws against false or misleading advertise as set forth in Bus. & Prof. Code, §§ 651, 1680, or 17200. 64 Ops. Cal. Atty. Gen. 782
Under Unfair Competition Act, private attorney may not collect monetary damages from person practicing law who is not active member of State Bar. 76 Ops. Cal. Atty. Gen. 193
A licensed residential mortgage lender may not charge the borrower interest from the date its funds are paid into escrow rather than from the date the funds are disbursed from escrow for the borrower's use. 82 Ops. Cal. Atty. Gen. 233
When a customer uses a debit card to purchase gasoline at a service station, the service station owner may not cause a hold to be placed upon the customer's bank account before allowing the gasoline to be pumped where the amount of the hold is in excess of the purchase price of the gasoline ultimately pumped, the hold extends beyond the fueling event, and the owner does not inform the customer of the existence of the hold. 85 Ops. Cal. Atty. Gen. 17
Annotations
Actionable nature of advertising that disparages or criticizes merchandise or products. 57 ALR2d 837
Commercial competitor's truthful denomination of his goods as copies of designs of another, using designer's name, as trademark infringement, unfair competition, or the like. 1 ALR3d 760
Use of "family name" by corporation as unfair competition. 72 ALR3d 8
Trade dress simulation of cosmetic products as unfair competition. 86 ALR3d 505
Unfair competition by imitation in sign or design of business place. 86 ALR3d 884
Scope and exemptions of state deceptive trade practice and consumer protection acts. 89 ALR3d 399
Practices forbidden by state deceptive trade practice and consumer protection acts. 89 ALR3d 449
Disclosure of trade secret as abandonment of secrecy. 92 ALR3d 138
Commercial tax preparer's advertising as unfair or deceptive act or practice under § 5 of Federal Trade Commission Act (15 USCS § 45(a)). 37 ALR Fed 81
Standing to bring false advertising claim or unfair competition claim under § 43(a)(1) of Lanham Act (15 USCS 1125(a)(1)). 124 ALR Fed 189

NOTES OF DECISIONS

1. In General; Scope of Statute

1.5. Abuse of Statute

2. Particular "Unfair Competition"

3. -Use of Name; Tradenames

4. -Trade Secrets

5. -Customer Information

6. -Advertising

7. -Real Property; Landlord-Tenant

8. Actions

9. Jurisdiction

10. Insurance

1. In General; Scope of Statute
Where one tradesman resorts to the use of any artifice or contrivance for the purpose of representing his goods or his business as the goods or business of a rival tradesman, thereby deceiving the people by causing them to trade with him when they intended to and would have otherwise traded with his rival, a fraud is committed which a court of equity will not allow to thrive. Weinstock, Lubin & Co. v Marks (1895) 109 Cal 529, 42 P 142
Essence of unfair competition lies in simulation and imitation of goods of rival or competitor with purpose of deceiving unwary public into buying the imitation under impression that it is purchasing goods of such competitor. American Philatelic Soc. v Claibourne (1935) 3 Cal 2d 689, 46 P2d 135
; Audio Fidelity, Inc. v High Fidelity Recordings, Inc. (1960, CA9 Cal) 283 F.2d 551, 127 USPQ 306
Unfair competition is question of fact, and no inflexible rule can be stated as to what conduct will constitute unfair competition. Universal test is whether public is likely to be deceived. Grant v California Bench Co. (1946) 76 Cal App 2d 706, 173 P2d 817
For competition to be justifiable, it can be only that which is carried on in good faith, not that by which wrongful party is seeking to gratify his feeling of chagrin, disappointment or hatred for another. Carter v Adler (1955, 2nd Dist) 138 Cal App 2d 63, 291 P2d 111
Rules of unfair competition are based, not only on protection of property right existing in complainant, but also on right of public to protection from fraud and deceit. People ex rel. Mosk v National Research Co. (1962, 3rd Dist) 201 Cal App 2d 765, 20 Cal Rptr 516
Though terms "unfair competition" and "unfair or fraudulent business practice" are generic terms and must be translated into specific fact situations in order to be cognizable, such terms are not void for uncertainty and vagueness where, due to consideration of concept of unfair competition in numerous cases, articles and texts, there is definite background of experience and precedents to illuminate meaning of words, and where it would be impossible to draft in advance detailed plans and specifications of all acts and conduct to be prohibited. People ex rel. Mosk v National Research Co. (1962, 3rd Dist) 201 Cal App 2d 765, 20 Cal Rptr 516
A valid claim of unfair competition requires that the unfairness be intrinsic in the criticized conduct, and a cause of action for unfair competition cannot arise out of a breach of agreement by defendants to desist from fair and legitimate competition. Television Adventure Films Corp. v KCOP Television, Inc. (1967, 2nd Dist) 249 Cal App 2d 268, 57 Cal Rptr 526
Although the appellation "unfair competition" is used to denominate the equitable doctrine and rules operative in the field of disputes over trade names, direct competition between the parties is not a prerequisite to relief; the emphasis is on the word "unfair" rather than on "competition." Ball v American Trial Lawyers Asso. (1971, 2nd Dist) 14 Cal App 3d 289, 92 Cal Rptr 228
Unfair competition is defined to include "unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising." (B & P C § 17200.) An unlawful business activity includes anything that can properly be called a business practice and that at the same time is forbidden by law. People v McKale (1979) 25 Cal 3d 626, 159 Cal Rptr 811, 602 P2d 731
Any person charged under B & P C §§ 17200 et seq., with the unlawful business practice of packaging nonfunctional slack filled containers in violation of B & P C § 12606, may only raise the defense that the container is not nonfunctionally slack filled, that is, that the container is not filled to substantially less than its capacity for reasons other than protection of the contents of such package or the requirements of machines used for enclosing the contents in such packages. Defenses of lack of deception or fraud or that the person's conduct is not unlawful or unfair, other than that expressed in the language of B & P C § 12606, are not available to such person. Hobby Industry Asso. v Younger (1980, 2nd Dist) 101 Cal App 3d 358, 161 Cal Rptr 601
B & P C § 12602(b), precludes prosecutions of wholesale or retail distributors of nonfunctionally slack filled packages, and the Attorney General may not institute any actions against wholesalers or retailers for engaging in that practice under the California Fair Packaging and Labeling Act, or otherwise, unless such individuals either actually package or label the nonconforming commodities themselves, prescribe the manner of packaging, or have knowledge of the commodities' nonconforming nature. Thus, suits may not be brought against such persons under the unfair competition statutes in B & P C §§ 17200 et seq. Although the Attorney General has broad powers under common law to institute actions involving the rights and interests of the state and its citizens, this power arises only in the absence of legislative restriction, and B & P C §§ 12606 and 12602, specifically restrict the scope of the prohibition against nonfunctional slack fill to wholesalers and retailers who fall within one of the three categories. Hobby Industry Asso. v Younger (1980, 2nd Dist) 101 Cal App 3d 358, 161 Cal Rptr 601
Under B & P C § 17200, defining unfair competition, an unlawful business activity includes anything that can properly be called a business practice and that at the same time is forbidden by law. Since B & P C §§ 17200, et seq., does not impose definitional limitations as to what are the unlawful business practices within its purview, the determination of the various unlawful business practices covered by the act must be made by looking to the particular proscriptive legislation itself which is carried into the statute by its broad language. Any defenses available under that particular unlawful business practice would be available in an enforcement action. Hobby Industry Asso. v Younger (1980, 2nd Dist) 101 Cal App 3d 358, 161 Cal Rptr 601
Historically, the tort of unfair business competition required a competitive injury. However, the language of B & P C § 17200, providing that unfair competition shall mean and include unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising, demonstrates a clear design to protect consumers as well as competitors by its final clause, permitting any member of the public to sue on his own behalf or on behalf of the public generally. Thus, the statute is not confined to anticompetitive business practice but is equally directed toward the right of the public to protection from fraud and deceit. Furthermore, the proscription in the statute against unfair competition is not restricted to deceptive or fraudulent conduct but extends to any unlawful business practice. The Legislature apparently intended to permit courts to enjoin ongoing wrongful business conduct in whatever context such activity might occur. Stoiber v Honeychuck (1980, 5th Dist) 101 Cal App 3d 903, 162 Cal Rptr 194
In determining whether a particular business practice is unfair under B & P C § 17200 (former CC § 3369), the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. Motors, Inc. v Times-Mirror Co. (1980, 2nd Dist) 102 Cal App 3d 735, 162 Cal Rptr 543
The unfair competition law (B & P C §§ 17200 et seq.) is not confined to anticompetitive business practices, but is equally directed toward the right of the public to protection from fraud and deceit. Furthermore, the proscription of "unfair competition" is not restricted to deceptive or fraudulent conduct but extends to any unlawful business practice. The Legislature apparently intended to permit courts to enjoin ongoing wrongful business conduct in whatever context such activity might occur. Committee on Children's Television, Inc. v General Foods Corp. (1983) 35 Cal 3d 197, 197 Cal Rptr 783, 673 P2d 660
Any unlawful business practice, including violations of the Sherman Food, Drug, and Cosmetic Law (Health & Saf. Code, §§ 26000 et seq.) may be redressed by a private action charging unfair competition in violation of Bus. & Prof. Code, §§ 17200 and 17203. Committee on Children's Television, Inc. v General Foods Corp. (1983) 35 Cal 3d 197, 197 Cal Rptr 783, 673 P2d 660
What constitutes "unfair competition" or an "unfair or fraudulent business practice" (B & P C § 17200) under any given set of circumstances is a question of fact, the essential test being whether the public is likely to be deceived. People v Toomey (1984, 1st Dist) 157 Cal App 3d 1, 203 Cal Rptr 642
Because the Petroleum Marketing Practices Act (15 U.S.C. §§ 2801-2806) preempts any provision of any law or regulation with respect to termination of any such franchise relationship unless such provision of such law or regulation is the same as the applicable provision of the federal act, the Franchise Investment Law (Corp C §§ 31000 et seq. and B & P C § 17200 (unfair business practices)) were preempted to the extent they were inconsistent with federal law and to the extent they were relied on by petroleum distributors to enjoin the constructive terminations of their franchises by the franchisor. California Arco Distributors, Inc. v Atlantic Richfield Co. (1984, 2nd Dist) 158 Cal App 3d 349, 204 Cal Rptr 743
The language of B & P C § 17200, which defines "unfair competition" to include any "unlawful, unfair, or fraudulent business practice," is intended to protect consumers as well as business competitors. Its prohibitory reach is not limited to deceptive or fraudulent conduct but extends to any unlawful business conduct. Perdue v Crocker National Bank (1985) 38 Cal 3d 913, 216 Cal Rptr 345, 702 P2d 503, app dismd 475 US 1001, 89 L Ed 2d 290, 106 S Ct 1170
"Unfair competition" has been broadly defined. Under B & P C § 17200, it includes unlawful business activity, i.e., anything that can properly be called a business practice and that at the same time is forbidden by law. The Legislature intended to permit tribunals to enjoin ongoing wrongful business conduct in whatever context such activity might occur. Although the tort historically required a competitive injury, § 17200 demonstrates a clear design to protect consumers as well as competitors by permitting any member of the public to sue on his or her own behalf or on behalf of the public generally. Thus, § 17200 is not confined to anticompetitive business practice but is equally directed toward the right of the public to protection from fraud and deceit. Consumers Union of United States, Inc. v Fisher Development, Inc. (1989, 1st Dist) 208 Cal App 3d 1433, 257 Cal Rptr 151
A violation of B & P C §§ 17200, 17500 (unfair competition and false and misleading statements), does not depend on potential customers reading a misleading contract. Such an interpretation would defeat the purpose behind the statutes, which is to protect against the likelihood of deception to the public, not just actual harm. The court may impose liability and civil penalties without individualized proof of reliance, deception, and injury if it is convinced that such a remedy is necessary to deter unfair practices. People v Dollar Rent-A-Car Systems, Inc. (1989, 1st Dist) 211 Cal App 3d 119, 259 Cal Rptr 191
False and misleading representations necessarily constitute unfair business practices within the meaning of B & P C § 17200 (unfair competition). Section 17200 is designed to protect consumers against fraud and deceit as well as to protect competitors. It is broadly interpreted to bar all ongoing wrongful business activities in any context in which they appear. People v Dollar Rent-A-Car Systems, Inc. (1989, 1st Dist) 211 Cal App 3d 119, 259 Cal Rptr 191
In an action to determine an insurer's liability for the losses suffered by investors as a result of the unfair and deceptive practices of financial service professionals, the trial court erred in ruling that the losses were covered by the protection for advertising liability contained in the professionals' comprehensive general liability policy. The term "unfair competition" as used in the policy language providing coverage for advertising injury referred to the common law tort of unfair competition, rather than to the conduct prohibited under the Unfair Business Practices Act (B & P C §§ 17200 et seq.). The phrase "unfair competition" is not ambiguous, and means the common law tort of passing off one's goods as those of another. Inasmuch as the investors sued for deceptive business practices, rather than for the common law tort of competitive rivalry, they were not entitled to coverage under the advertising liability provisions of the policy. Moreover, it was not necessary to decide whether the distribution of promotional materials was "advertising activity," since the policy did not cover the unfair and deceptive business practices. Chatton v National Union Fire Ins. Co. (1992, 1st Dist) 10 Cal App 4th 846, 13 Cal Rptr 2d 318
Pursuant to B & P C § 17200, which defines unfair competition, the "unlawful" practices prohibited are any practices forbidden by law be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. Section 17200 borrows violations of other laws and treats them as unlawful practices independently actionable. "Unfair" simply means any practice whose harm to the victim outweighs its benefits. "Fraudulent," as used in the statute, does not refer to the common law tort of fraud, but only requires a showing members of the public are likely to be deceived. A plaintiff suing under § 17200 does not have to prove he or she was directly harmed by the defendant's business practices. An action may be brought by any person, corporation, or association, or by any entity acting for the interests of itself, its members, or the general public. Saunders v Superior Court (1994, 2nd Dist) 27 Cal App 4th 832, 33 Cal Rptr 2d 438
Pursuant to California's unfair competition statute (B & P C § 17200), which is to be given the broadest possible definition, an unlawful business activity includes anything that can properly be called a business practice and that at the same time is forbidden by law. Reese v Payless Drug Stores Northwest, Inc. (1995, 1st Dist) 34 Cal App 4th 19, 40 Cal Rptr 2d 75
A department store's policy of deducting from paid commissions an amount for customer returns of merchandise for which the sales person could not be identified (unidentified returns) violated B & P C § 17200. That statute prohibits all business practices that are unlawful, unfair, or fraudulent, not merely anticompetitive business practices. Hudgins v Neiman Marcus Group, Inc. (1995, 1st Dist) 34 Cal App 4th 1109, 41 Cal Rptr 2d 46
B & P C § 17200, "borrows" violations of other laws and treats them as unlawful practices independently actionable under the Unfair Competition Act (UCA). Although the "business of insurance" has expressly been made subject to the provisions of the UCA (Ins C § 1861.03), the provisions of Ins C § 790.03 (unfair acts or practices in the business of insurance) may not be "borrowed" to serve as a basis for an action under the UCA. However, it is not necessary for a business practice to be "unlawful" in order to be subject to an action under the UCA. The "unfair" standard, the second prong of B & P C § 17200, also provides an independent basis for relief. This standard is intentionally broad, thus allowing courts maximum discretion to prohibit new schemes to defraud. In determining whether a business practice is unfair, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. An unfair business practice occurs when that practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. State Farm Fire & Casualty Co. v Superior Court (1996, 2nd Dist) 45 Cal App 4th 1093, 53 Cal Rptr 2d 229
An action for unfair trade practices under B & P C § 17200, arises when a business practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Wolfe v State Farm Fire & Casualty Ins. Co. (1996, 2nd Dist) 46 Cal App 4th 554, 53 Cal Rptr 2d 878
B and P C § 17200, of the Unfair Practices Act (B & P C §§ 17200 et seq.), defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. The unlawful practices prohibited by the statute are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court made. It is not necessary that the predicate law provide for private civil enforcement. "Unfair," as used in the statute, simply means any practice whose harm to the victim outweighs its benefits. "Fraudulent," as used in the statute, does not refer to the common law tort of fraud but only requires a showing that members of the public are likely to be deceived. Olsen v Breeze, Inc. (1996, 3rd Dist) 48 Cal App 4th 608, 55 Cal Rptr 2d 818
Because B & P C § 17200, of the Unfair Competition Act is written in the disjunctive, it establishes three varieties of unfair competition, including acts or business practices that are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as unfair or deceptive even if not unlawful and vice versa. Virtually any state, federal, or local law can serve as the predicate for an action under § 17200. The independent unfairness prong of the statute is intentionally broad, thus allowing courts maximum discretion to prohibit new schemes to defraud. The test of whether a business practice is unfair involves an examination of that practice's impact on its alleged victim balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. An unfair business practice occurs when the practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. The fraud prong of § 17200 is unlike common law fraud or deception. A violation can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived. Podolsky v First Healthcare Corp. (1996, 2nd Dist) 50 Cal App 4th 632, 58 Cal Rptr 2d 89
The unfair competition statute is not confined to anticompetitive business practices but is also directed toward the public's right to protection from fraud, deceit, and unlawful conduct. Thus, California courts have consistently interpreted the language of B & P C § 17200, broadly. An unlawful business activity includes anything that can properly be called a business practice and that at the same time is forbidden by law. Furthermore, the use of the phrase "business practice" in § 17200 indicates that the statute is directed at ongoing wrongful conduct. The "practice" requirement envisions something more than a single transaction. It contemplates a pattern of conduct, ongoing conduct, a pattern of behavior, or a course of conduct. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
The unlawful practices prohibited by B & P C § 17200, which defines unfair competition, are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. B & P C § 17200, borrows violations of other laws and treats them as unlawful practices that are independently actionable. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
Under B & P C § 17200, of the Unfair Competition Act, which prohibits unlawful, unfair, or fraudulent business practices, an "unlawful" business practice or act is one that is committed pursuant to business activity and that is at the same time forbidden by law. Virtually any law can serve as the predicate for a § 17200 action. Klein v Earth Elements, Inc. (1997, 1st Dist) 59 Cal App 4th 965, 69 Cal Rptr 2d 623
Determination of whether a business practice or act is "unfair" within the meaning of B & P C § 17200, of the Unfair Competition Act, which prohibits unlawful, unfair, or fraudulent business practices, entails examination of the impact of the practice or act on its victim, balanced against the reasons, justifications, and motives of the alleged wrongdoer. The court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. In general, the "unfairness" prong has been used to enjoin deceptive or sharp practices. Klein v Earth Elements, Inc. (1997, 1st Dist) 59 Cal App 4th 965, 69 Cal Rptr 2d 623
The test for "fraud" as contemplated by B & P C § 17200, of the Unfair Competition Act, which prohibits unlawful, unfair, or fraudulent business practices, is whether the public is likely to be deceived. Unlike common law fraud, a § 17200 violation can be established even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Klein v Earth Elements, Inc. (1997, 1st Dist) 59 Cal App 4th 965, 69 Cal Rptr 2d 623
Because state-law claims against unions for unfair competition and violation of prevailing wage statutes could be resolved without interpreting job targeting agreements (for collecting wages from workers on public works projects and distributing them as subsidies to other union-signatory contractors), the claims were independent of the agreements and not subject to federal preemption of suits based on collective bargaining agreements. The unions could not avoid civil or criminal liability by contracting with employers and then claiming preemption. Associated Builders & Contrs. v Local 302 IBEW (1997, CA9 Cal) 109 F.3d 1353
An allegation by a private, for-profit corporation in an action against a supermarket that defendant, in the course of its retailing activities, violated Pen. Code, § 308, prohibiting the sale of cigarettes to minors, adequately alleged unfair competition under the Unfair Competition Law (B & P C §§ 17200-17209). The Legislature intended the sweeping language of the law to include anything that can properly be called a business practice and that at the same time is forbidden by law. Stop Youth Addiction, Inc. v Lucky Stores, Inc. (1998) 17 Cal 4th 553, 71 Cal Rptr 2d 731, 950 P2d 1086
A complaint by a private, for-profit corporation in an action against a supermarket alleging that defendant, in the course of its retailing activities, violated Pen C § 308, prohibiting the sale of cigarettes to minors, adequately alleged a cause of action for unfair competition under the Unfair Competition Law (UCL) (B & P C §§ 17200-17209) sufficient to withstand a general demurrer. Public policy objections did not preclude maintenance of the action. A private UCL action predicated on Pen C § 308, did not threaten to put the public prosecutor's discretionary decisionmaking within the influence or control of an interested party, or create the "offensive" possibility that a prosecutor would reap an inappropriate financial benefit. Whether or not plaintiff brought the action to generate attorney fees or improperly used minors in a "sting" operation against defendant were not issues to be determined at the pleading stage. Trial courts are empowered to inquire into the bona fides of private lawsuits, including any private UCL action (CCP § 128.7). Stop Youth Addiction, Inc. v Lucky Stores, Inc. (1998) 17 Cal 4th 553, 71 Cal Rptr 2d 731, 950 P2d 1086
In a declaratory relief action brought by a California computer consulting corporation that had recruited and hired an employee of a competitive Maryland corporation in spite of her covenant not to compete, the trial court properly applied California law to rule that the Maryland noncompetition clause was rendered unenforceable by B & P C §§ 16600 (restraint of trade), and 17200 (unfair competition). California and Maryland had diametrically opposed laws regarding the enforceability of the employee's noncompetition clause: California law rendered such provisions void (B & P C § 16600), while Maryland law permitted them so long as they are reasonable in scope and duration. The trial court correctly declined to enforce the contractual conflict of law provision in the Maryland employment agreement, since B & P C § 16600, reflects a strong public policy, particularly important in its out-of-state application in these days of telecommuting and virtual employment, and California had a materially greater interest than Maryland in the application of its law to the parties' dispute. Furthermore, the Maryland corporation had significant contacts with California, which included head-to-head competition with the California corporation for California customers. Application Group, Inc. v Hunter Group, Inc. (1998, 1st Dist) 61 Cal App 4th 881, 72 Cal Rptr 2d 73
In a declaratory relief action brought by a California computer consulting corporation that had recruited and hired an employee of a competitive Maryland corporation in spite of her covenant not to compete, the trial court properly concluded that the Maryland noncompetition clause violated the Unfair Practices Act (B & P C §§ 17200 et seq.). Nonresident businesses can be held to account for wrongful business conduct affecting California employers and employees. Application Group, Inc. v Hunter Group, Inc. (1998, 1st Dist) 61 Cal App 4th 881, 72 Cal Rptr 2d 73
The unlawful business practices prohibited by the Unfair Trade Practices Act (B & P C § 17200) are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. Section 17200 borrows violations of other laws and treats them as unlawful practices independently actionable. An employer's business practices concerning its employees are within the scope of § 17200. Where the employer's policy or practice is forbidden by or found to violate the Labor Code or the Business and Professions Code, it may also be held to constitute an unlawful business practice subject to redress under § 17200. Application Group, Inc. v Hunter Group, Inc. (1998, 1st Dist) 61 Cal App 4th 881, 72 Cal Rptr 2d 73
In an antitrust action, state law claims based on predatory pricing failed. California Unfair Practices Act (B & P C §§ 17045 et. seq.), requires injury to competition; plaintiff vainly relied on predatory pricing as the relevant injury. Unfair competition under B & P C §§ 17200 and 17203 requires an independent, unlawful act; certain "anti-competitive acts" were only predatory pricing, already held insufficient. Tortious interference with contractual relations requires a valid and existing contract, of which defendant knew and for which defendant intended to induce a breach (and did induce breach) by unjustified conduct causing damage. Plaintiff did not identify any existing contracts and did not directly allege a breach. Interference with prospective economic advantage requires conduct wrongful by some legal measure other than the fact of interference itself; plaintiff showed no other wrongful act except those already held insufficient. Kentmaster Mfg. Co. v Jarvis Products Corp. (1998, CA9 Cal) 146 F.3d 691
B & P C §§ 17200 et seq. codifies California public policy against unfair competition, and prohibits wrongful business conduct in whatever context such activity might occur. Unfair competition is defined broadly as any unlawful, unfair or fraudulent business act or practice. An action based on B & P C § 17200 to redress an unlawful business practice essentially borrows violations of other laws and treats them as independently actionable. Premier Technical Sales v Digital Equipment Corp. (1998, ND Cal) 11 F Supp 2d 1156
In contrast to its limited remedies, the scope of the unfair competition law is broad. Unlike the Unfair Practices Act, it does not proscribe specific practices. Rather, it defines "unfair competition" to include any unlawful, unfair or fraudulent business act or practice. Its coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. By proscribing any unlawful business practice, § 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. However, the law does more than just borrow. The statutory language referring to "any unlawful, unfair or fraudulent" practice makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. Because B & P C § 17200 is written in the disjunctive, it establishes three varieties of unfair competition: acts or practices that are (1) unlawful, (2) unfair, or (3) fraudulent. Cel-Tech Communs., Inc. v Los Angeles Cellular Tel. Co. (1999) 20 Cal 4th 163, 83 Cal Rptr 2d 548, 973 P2d 527
Although the unfair competition law's scope is sweeping, it is not unlimited. Courts may not simply impose their own notions of the day as to what is fair or unfair. Specific legislation may limit the judiciary's power to declare conduct unfair. If the Legislature has permitted certain conduct or considered a situation and concluded that no action should lie, courts may not override that determination. Thus, when specific legislation provides a "safe harbor," plaintiffs may not use the general unfair competition law to assault that harbor. Cel-Tech Communs., Inc. v Los Angeles Cellular Tel. Co. (1999) 20 Cal 4th 163, 83 Cal Rptr 2d 548, 973 P2d 527
In actions for tortuous violations of CCP § 395, CCP §§ 1710.10 et seq., CCP § 1913, CC § 1788.15, regarding venue, enforcing foreign judgments, and debt collection practices, brought by California residents against Virginia banks after default judgments against plaintiffs for credit card debts brought in Virginia, the trial court properly granted summary judgment for defendants since none of these statutes was meant to govern conduct outside of California. To construe these statutes in the manner plaintiffs advocated could make them the kind of extraterritorial legislation the U.S. Constitution forbids. However, there is no constitutional impediment to a finding that defendants' conduct was unlawful under B & P C § 17200. Yu v Signet Bank/Virginia (1999, 1st Dist) 69 Cal App 4th 1377, 1395, 82 Cal Rptr 2d 304
Plaintiff filed a class action complaint for damages and injunctive relief against four rental car companies alleging they refused to rent automobiles to persons under age 25 or unreasonably restricted such rentals. The trial court properly sustained defendants' demurrer to plaintiff's cause of action for unfair competition since defendant's actions were not unlawful under the Unruh Civil Rights Act (CC § 51), and the actions of the rental companies was also specifically lawful under CC § 1936. Lazar v Hertz Corp. (1999, 1st Dist) 69 Cal App 4th 1494, 1505, 82 Cal Rptr 2d 368
In an action by an insurance agent against an insurer arising from a dispute and lawsuit over the termination of their insurance agency contract, the agent did not have a private cause of action to sue for damages under Ins C § 769, or a claim pursuant to the Unfair Business Practices Act (B & P C §§ 17200 et seq.). Although § 769 provides for 120 days' advance written notice for termination of a brokerage contract by an insurer, except by mutual agreement, the statute does not contain any language providing a remedy or means of enforcing its substantive operative provisions. Ins C § 790.06 specifically gives the Insurance Commissioner the power to undertake administrative proceedings to enjoin unfair business practices not enumerated or defined in § 790.03. Additionally, the difficulty with the agent's argument for enforcement under §§ 17200 et seq. was that this act provides a right to and the means of obtaining equitable relief only. Here, the agent was suing for unrealized commissions and general compensatory damages it claimed to have suffered as a result of being given less than 120 days' notice of termination. The provisions of § 769 do not create a private right to sue for damages, either directly or by indirect operation of the Unfair Business Practices Act. Vikco Ins. Servs., Inc. v Ohio Indemnity Co. (1999, 1st Dist) 70 Cal App 4th 55, 82 Cal Rptr 2d 442
In an action by an employer against its workers' compensation insurer, the State Compensation Insurance Fund (SCIF), for tortious breach of the implied covenant of good faith and fair dealing, and unfair, unlawful, or fraudulent business practices (B & P C § 17200), based on allegations that defendant's failure to estimate reasonable claim reserve levels resulted in plaintiff's paying higher premiums and receiving lower dividends, the trial court properly issued an injunction requiring defendant to delete the term "maximum probable potential" from its claims estimating manual and to return to a previous standard. Defendant was also enjoined from denying insureds access to claim files as relevant to the employer's premium, from refusing to communicate with an insured's authorized representative, and from refusing to allow such representative to conduct an appropriate claim file review (Lab C § 3762). Although SCIF is a public entity, it is to be treated as a private enterprise pursuant to Ins C § 11873, and thus as a "person" for purposes of § 17200. Unfair business practices was shown by evidence that SCIF intended to mask its change in reserve guideline to maximum probable potential cost, and that plaintiff would not have continued its relationship with SCIF had it been aware of the change. Notrica v State Compensation Ins. Fund (1999, 2nd Dist) 70 Cal App 4th 911, 941, 83 Cal Rptr 2d 89
In a class action against a mortgage company alleging violation of the unfair competition law, (UCL; B & P C §§ 17200 et seq.), the trial court erred in granting nationwide class certification on the basis that UCL provides a remedy to non-California residents for unfair business practices that occur entirely outside California. Although the trial court has great discretion to grant class certification and its ruling will ordinarily be affirmed if supported by substantial evidence, its ruling may be reversed if based on erroneous legal assumptions or criteria. B & P C § 17200 et seq. contain no express declaration that it was designed or intended to regulate claims of nonresidents arising from conduct occurring entirely outside of California. Applying California law to these claims would be arbitrary and unfair and transgress due process limitations, even though defendant was incorporated and does business in California. Northwest Mortgage, Inc. v Superior Court (1999, 4th Dist) 72 Cal App 4th 214, 85 Cal Rptr 2d 18
The unlawful practices prohibited by B & P C § 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. Section 17200 borrows violations of other laws and treats them as unlawful practices independently actionable under §§ 17200 et seq. Here, plaintiff car dealership's contention that defendant auto financing company's business practice of calculating interest under the 365/360 method was unlawful as contrary to B & P C § 17500, CC § 1916, contract law, and public policy was without merit. California has no law or regulation requiring a lender to use a 265-day year in computing interest or quoting annual interest rates on commercial loans. Nor did defendant's conduct constitute an unfair business practice or a fraudulent business practice, and it was not misleading advertising. South Bay Chevrolet v General Motors Acceptance Corp. (1999, 4th Dist) 72 Cal App 4th 861, 881, 85 Cal Rptr 2d 301
Unfair competition laws prohibit any unfair, deceptive, or unlawful business or other practice violating false advertising laws. The Attorney General may obtain injunctive relief and civil penalties, and the remedies are cumulative to those available under other provisions of the law. The court may impose civil penalties of $2,500 for each violation of Business and Professions Code sections 17200 and 17500. People v Orange County Charitable Services (1999, 4th Dist) 73 Cal App 4th 1054, 1076, 87 Cal Rptr 2d 253
Where plaintiff automobile insurer sought recovery of the monies it paid for bodily injury and damages arising from accidents in which its insureds were involved while driving cars rented from defendant car rental company, plaintiff's claims fell directly into the category of expenses for bodily injury or property damage, arising out of the use, operation, or possession of the rental vehicle. The costs and attorneys fees expended by defendant in defending plaintiff's subrogation claim were properly recoverable by defendant under the rental agreement (CC § 2778). Further, the insureds' obligation to indemnify defendant included the defense of plaintiff's claims for declaratory relief or violation of B & P C § 17200. But for the accidents and resulting personal injury claims, plaintiff would not have filed its complaint. The purpose of plaintiff's claims for declaratory relief and violation of § 17200 was to shift the resulting liability from the insureds to defendant. Thus, defendant was entitled to indemnity for the defense of these claims under the rental agreement. United Services Automobile Assn. v Snappy Car Rental, Inc. (1999, 4th Dist) 74 Cal App 4th 461, 465, 87 Cal Rptr 2d 742
Under B & P C § 17200, any unlawful business act constitutes unfair competition, and a private cause of action can be based on the unlawful act even if the predicate law does not provide for a private cause of action. A violation of RESPA or Regulation X is made unlawful under California law by Fin C § 50505. Washington Mutual Bank v Superior Court (1999, 2nd Dist) 75 Cal App 4th 773, 786, 89 Cal Rptr 2d 560
B & P C §§ 17200 et seq. (prohibiting unfair business practices) and 17500 et seq. (prohibiting false advertising) do not apply to election campaign practices. National Committee v Democratic Nat. Committee (1999, CA9 Cal) 168 F.3d 360
Federal law preempts a bankruptcy debtor's action for malicious prosecution against a creditor. Congress has established several remedies for improper use of bankruptcy procedures; and permitting parties to proceed on a myriad of state law remedies would undermine attempts to achieve uniformity in this area of the law. The court dismissed plaintiff's claim under the California Business and Professions Code as preempted by federal law. Rogers v Nationscredit Financial Services Corp. (1999, ND Cal) 233 BR 98
In an action that is not certified as a class action, but is brought as a representative action on behalf of absent persons by a private party under the unfair competition law (UCL) (B & P C §§ 17200 et seq.), disgorgement into a fluid recovery fund is not an available remedy. The statutory authorization in B & P C § 17203 to make orders necessary to restore money to any person in interest is clear; when restitution is made to a person in interest, fluid recovery is unnecessary. And nothing in the history of the UCL suggested that fluid recovery was contemplated by the UCL itself. Fashioning a fluid recovery remedy in an action that has not been certified as a class action is not a proper exercise of the court's inherent equitable powers. Kraus v Trinity Management Services, Inc. (2000) 23 Cal 4th 116, 127, 96 Cal Rptr 2d 485, 999 P2d 718
The provision of the False Claims Act prohibiting the bringing of "a related action based on the facts underlying the pending action" (Gov C § 12652(c)(10)) does not preclude a subsequent action for alleged violations of the unfair competition law (B & P C §§ 17200 et seq.). In light of the nonexclusivity provisions of Gov C § 12655, the bar on "related actions" under § 12652(c)(10) applies only to subsequent qui tam actions filed under the False Claims Act. Rothschild v Tyco Internat. (US), Inc. (2000, 4th Dist) 83 Cal App 4th 488, 99 Cal Rptr 2d 721
Much like a claim for injunctive relief under the Consumers Legal Remedies Act, CC § 1750, a claim for injunctive relief under the Unfair Competition Act, B & P C § 17200 is brought by a plaintiff acting in the capacity as a private attorney general, under B & P C § 17203. Coast Plaza Doctors Hospital v Blue Cross of California (2000, 2nd Dist) 83 Cal App 4th 677, 99 Cal Rptr 2d 809
In contrast to a claim under B & P C § 17200, a party suing for violation of B & P C § 17020 under one of the many provisions of the Unfair Trade Practices Act, may bring a private right of action for damages suffered directly by the party, and also seek injunctive relief for the protection of the party and the public at large. Coast Plaza Doctors Hospital v Blue Cross of California (2000, 2nd Dist) 83 Cal App 4th 677, 99 Cal Rptr 2d 809
Proof of intent to injure is not necessary to prove a violation of the California Unfair Business Practices Act, B & P C §§ 17200 et seq. Irwin v. Mascott (2000, ND Cal) 94 F. Supp. 2d 1052; 2000 U.S. Dist. LEXIS 1767
Like class actions, claims under B & P C § 17200 sought relief on behalf of numerous individuals; however, in determining jurisdiction over § 17200 claims, courts could not consider the potential costs to defendant of compliance with a potential injunction because those costs would be from the separate claims of individual policyholders, rather than an aggregated claim on behalf of a unified group. Surber v Reliance Nat'l Indem. Co. (2000, ND Cal) 110 F. Supp. 2d 1227; 2000 U.S. Dist. LEXIS 10862
Where a service station franchisee alleged that a franchisor's true reason for terminating a dealer agreement was to enable the franchisor to acquire the franchise at a price well below market value, the state law claim focused on the grounds for terminating the dealer agreement; because the claim focused on the grounds for terminating the dealer agreement, it was preempted by the Petroleum Marketing Practices Act of 1979, 15 USCS §§ 2801 et seq. Chevron, U.S.A., Inc. v Mebtahi (2000, CD Cal) 148 F. Supp. 2d 1019; 2000 U.S. Dist. LEXIS 20849
Defendant's settlement with the Consumer Protection Safety Commission did not divest the court of the authority to act; further, Congress intended the savings clause in the Consumer Protection Safety Act to preclude the preemption of claims of false advertising and unfair business practices because compliance with federal consumer product safety rules did not relieve defendant of liability under state common law or statute. Churchill Village, L.L.C. v GE (2000, ND Cal) 169 F. Supp. 2d 1119; 2000 U.S. Dist. LEXIS 7505
Because plaintiff's unfair competition claim alleged that defendant appropriated its property by publishing and selling it on the internet and pleaded a "hot news" misappropriation, the claim survived a motion to dismiss based on preemption under the Copyright Act, 17 USCS § 10, et seq.; the "hot news" misappropriation was an extra element not protected under the Copyright Act. Pollstar v Gigmania Ltd. (2000, ED Cal) 170 F. Supp. 2d 974; 2000 U.S. Dist. LEXIS 21035; Copy. L. Rep. (CCH) P28,329; 45 U.C.C. Rep. Serv. 2d (Callaghan) 46
California's unfair competition law prohibits not only unlawful business practices, but also unfair business practices. Accordingly, the conduct of a tow truck operator in violation of Veh C § 22658 also constituted an unlawful business practice in violation of B & P C §§ 17200 et seq., where the injuries inflicted upon the unwitting victims were substantial and the defendant's conduct was entirely unethical and unscrupulous with no redeeming value. People ex rel. Renne v Servantes (2001, 1st Dist) 86 Cal App 4th 1081, 103 Cal Rptr 2d 870
Traditional res judicata principles had no application to a judgment resulting from an unlawful competition law lawsuit filed by the Attorney General or another public prosecutor in a subsequent lawsuit brought by victims of improper business practices. An action brought pursuant to B & P C §§ 17200 et seq. by a prosecutor was fundamentally different from a class action or other representative litigation. Accordingly, a subsequent action for restitution was not barred where none of the plaintiffs received any money as a result of the earlier prosecutors' litigation. Payne v National Collection Systems, Inc. (2001, 2nd Dist) 91 Cal App 4th 1037, 111 Cal Rptr 2d 260
Whether a business act or practice constitutes unfair competition within B & P C § 17200 is a question of fact. Watson Labs., Inc. v Rhone-Poulenc Rorer, Inc. (2001, CD Cal) 178 F Supp 2d 1099
B & P C § 17200 broadly proscribes unlawful business practices. The unlawful practices prohibited by B & P C § 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law provide for private civil enforcement. Watson Labs., Inc. v Rhone-Poulenc Rorer, Inc. (2001, CD Cal) 178 F Supp 2d 1099
Where a corporation's messages made representations of fact about its own business operations for the purpose of promoting sales of its products, these messages were commercial speech for purposes of applying state laws barring false and misleading commercial messages. Kasky v Nike, Inc. (2002) 27 Cal 4th 939, 119 Cal Rptr 2d 296, 45 P3d 243, cert gr (US) 154 L Ed 2d 767, 123 S Ct 817
Where a medical insurance carrier for a patient who had a tort claim based on the injuries for which medical services were provided paid the hospital an agreed-upon discounted amount for the medical services, it was not an unlawful business practice under B & P C §§ 17200 et seq. for the hospital to file a lien against the recovery the patient might obtain from the tortfeasor because the hospital lien was authorized by the Hospital Lien Act, CC §§ 3045.1 et seq. and privileged under CC § 47(b)(2). Swanson v St. John's Regional Medical Center (2002, 2nd Dist) 97 Cal App 4th 245, 118 Cal Rptr 2d 325
"Fraudulent," as used in B & P C § 17200, did not refer to the common law tort of fraud and required only a showing that members of the public were likely to be deceived, rather than a showing that one was actually deceived, relied upon the fraudulent practice, and sustained damage; thus, the parol evidence rule did not bar an action against a car dealership based on bait and switch allegations and was specifically excepted from the parol evidence rule by CCP § 1856(g). Wang v Massey Chevrolet (2002, 2nd Dist) 97 Cal App 4th 856, 118 Cal Rptr 2d 770
Claims under California's Unfair Competition Law (UCL) and class actions are not mutually exclusive as matter of law. Where a class has properly been certified, a plaintiff in a UCL action may seek disgorgement of unlawful profits into a fluid recovery fund. Corbett v Superior Court (2002, 1st Dist) 101 Cal App 4th 649, 125 Cal Rptr 2d 46
Trial court may certify a claim under California's Unfair Competition Law as a class action when the statutory requirements of CCP § 382 are met. Corbett v Superior Court (2002, 1st Dist) 101 Cal App 4th 649, 125 Cal Rptr 2d 46
Trial court erred when it ruled that a plaintiff could not bring a class action for a claim under California's Unfair Competition Law as a matter of law. Corbett v Superior Court (2002, 1st Dist) 101 Cal App 4th 649, 125 Cal Rptr 2d 46
Judgment in favor of the federally charted savings association, regulated by the Home Owners' Loan Act, 12 U.S.C.S. § 1461 et seq., was reversed when the claims brought against it by the borrowers under the unfair competition law, B & P C §§ 17200 et seq., were not federally preempted by 12 C.F.R. § 560.2, as the claims involved state laws of general application that affected lending only incidentally. Gibson v World Savings & Loan Assn. (2002, 4th Dist) 103 Cal App 4th 1291, 128 Cal Rptr 2d 19
Fraud prong of B & P C § 17200 bears little resemblance to common law fraud or deception; under § 17200, the test is whether the public is likely to be deceived. This means that a § 17200 violation, unlike common law fraud, can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
As used in B & P C §§ 17200 et seq., unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice. Written in the disjunctive, this language establishes three varieties of unfair competition. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Action based on B & P C § 17200 to redress an unlawful business practice "borrows" violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable and subject to the distinct remedies provided under of B & P C §§ 17200 et seq., the "unfair competition law." The remedies and penalties are cumulative to those imposed under the other laws. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
As to an unfair business practice under B & P C §§ 17200 et seq., the "unfair competition law," the court has not yet developed or approved a definition regarding what is unfair in the context of a suit involving injury to consumers. In deciding what is unfair, courts may not apply purely subjective notions of fairness; this prong is intentionally broad, thus allowing courts maximum discretion to prohibit new schemes to defraud. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Where the trial court found 300 separate violations of B & P C §§ 17200 et seq., as well as 400 violations of B & P C §§ 17500 et seq., the imposition of civil penalties and issuance of a permanent injunction were affirmed because B & P C §§ 17206, 17536 did not require the State to present evidence of an appellant's financial condition in that the court was required to impose a penalty even in the absence of any evidence as to an appellant's financial status, statutory penalties did not equate with punitive damages, the trial court did not abuse its discretion in assessing the penalty amount or in holding the appellants jointly and severally liable, and the trial court did not abuse its discretion in issuing the permanent injunction because the individuals were principals of the corporation who acted unscrupulously. People v First Federal Credit Corp. (2002, 2nd Dist) 104 Cal App 4th 721, 128 Cal Rptr 2d 542
Appellate court determined that individual alleged that a shopping center owner and a grocer were engaging in unfair business practices that would result in urban blight by failing to lease an anchor store in the shopping center, failed to state a claim under the unfair competition law, and the trial court properly granted the grocer's demurrer. Gregory v Albertson's, Inc. (2002, 1st Dist) 104 Cal App 4th 845, 128 Cal Rptr 2d 389
Test for determining a violation of the unfair competition law, B & P C § 17200, is a disjunctive one. Plaintiff may show that the acts or practices at issue are either unlawful or unfair or deceptive. Coast Plaza Doctors Hospital v UHP Healthcare (2002, 2nd Dist) 105 Cal App 4th 693, 129 Cal Rptr 2d 650
Private right of action for violation of an insurance regulation is available in federal court under B & P C § 17200. Hangarter v Paul Revere Life Ins. Co. (2002, ND Cal) 236 F Supp 2d 1069, affd (CA9 Cal) 2004 US App LEXIS 12841
Under the Unfair Competition Act definition of "competition," to mean and include any unlawful, unfair or fraudulent business act or practice, liability can be based on a single transaction and does not require a showing of ongoing wrongful business conduct. Hangarter v Paul Revere Life Ins. Co. (2002, ND Cal) 236 F Supp 2d 1069, affd (CA9 Cal) 2004 US App LEXIS 12841
Cause of action for violations of Ins C § 790.09 may be asserted under B & P C § 17200. Hangarter v Paul Revere Life Ins. Co. (2002, ND Cal) 236 F Supp 2d 1069, affd (CA9 Cal) 2004 US App LEXIS 12841
To prevail on claims of unfair competition under B & P C §§ 17200 et seq., a plaintiff must prove that the defendant is engaged in any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. Pepsico, Inc. v Cal. Sec. Cans (2002, CD Cal) 238 F Supp 2d 1172
Language of B & P C § 17203 is clear that the equitable powers of a court are to be used to prevent practices that constitute unfair competition and to restore to any person in interest any money or property acquired through unfair practices. While the "prevent" prong of § 17203 suggests that the legislature considered deterrence of unfair practices to be an important goal, the fact that attorney fees and damages, including punitive damages, are not available under the unfair competition law, B & P C §§ 17200 et seq., is clear evidence that deterrence by means of monetary penalties is not the act's sole objective. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Under the unfair competition law, B & P C §§ 17200 et seq., an individual may recover profits unfairly obtained to the extent that those profits represent monies given to a defendant or benefits in which a plaintiff has an ownership interest. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Action under the Unfair Competition Law (UCL) is not an all-purpose substitute for a tort or contract action. Instead, the UCL provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Unfair Competition Law (UCL) prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct; it embraces anything that can properly be called a business practice and that at the same time is forbidden by law. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
B & P C § 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices. In addition, under § 17200, a practice may be deemed unfair even if not specifically proscribed by some other law. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
While the scope of conduct covered by the Unfair Competition Law (UCL) is broad, its remedies are limited. A UCL action is equitable in nature; damages cannot be recovered; civil penalties may be assessed in public unfair competition actions, but the law contains no criminal provisions. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Order for restitution is one compelling an Unfair Competition Law defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person. The object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
While restitution is an available remedy under the unfair competition law, disgorgement of money obtained through an unfair business practice is an available remedy in a representative action only to the extent that it constitutes restitution. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Although law corporation was required to register under B & P C §§ 6161 and 6171, it did not engage in an unlawful business practice under B & P C §§ 17200 et seq. when it rendered services to clients before the required registration, when the individual members of the corporation were licensed attorneys at the time the services were rendered. Olson v Cohen (2003, 2nd Dist) 106 Cal App 4th 1209, 131 Cal Rptr 2d 620
Trial court properly granted judgment against claims brought under B & P C §§ 17500 and 17200 for false advertising and unfair competition against a seller of homeopathic medicines where the party bringing the action claimed that the seller was making false claims in connection with the marketing of the products but offered no evidence in support of its allegations; the legislature had provided that the burden of proof in such actions should lie with the party claiming that the advertising claims were false, and the appellate court would not change the law to require the seller to prove that the claims were true. National Council Against Health Fraud, Inc. v King Bio Pharmaceuticals, Inc. (2003, 2nd Dist) 107 Cal App 4th 1336, 133 Cal Rptr 2d 207
Theory of duplicative preemption did not bar Oakland, Cal., Mun. Code § 5.33.040 D merely because it declared that a violation of federal lending laws also violated § 5.33.040 D because there were many lenders covered by § 5.33.040 D that were exempt from liability under Fin C § 50505; moreover, no criminal penalties were associated with B & P C § 17200 American Financial Services Assn. v City of Oakland (2003, 1st Dist) 111 Cal App 4th 1435
Although caselaw has considered only the application of the reasonable consumer standard to the False Advertising Act and the Unfair Competition Law (UCL), the reasonable consumer standard also applies to the Consumer Legal Remedies Act (CLRA), which like the UCL concerns unfair methods of competition and unfair or deceptive acts or practices under CC § 1770(a) and B & P C § 17200, and which is intended to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection under CC § 1760 and is cumulative to other legal remedies pursuant to CC § 1752; thus, the reasonable consumer standard was the proper standard for a trial court to adopt in determining whether to grant defendant satellite companies' pretrial motions to dismiss for lack of merit under CC § 1781(c)(3), a class action by plaintiffs, consumer advocates and an individual satellite customer against the companies for breach of warranty and false or misleading statements under the CLRA, the False Advertising Act, and the UCL. Consumer Advocates v Echostar Satellite Corp. (2003, 2nd Dist) 113 Cal App 4th 1351
Under B & P C § 17200, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising Mercado v Allstate Ins. Co. (2003, CA9 Cal) 340 F.3d 824
In an unfair competition suit, a first computer corporation could not counterclaim that a second computer corporation's actions with respect to a settlement agreement constituted unfair competition in violation of Unfair Competition Law (UCL), B & P C § 17200 et seq., because the first computer corporation's allegations did not fall within the California Supreme Court's definition of "unfair" in § 17200, as it did not allege harm to competition, but only harm to itself. Sun Microsystems, Inc. v Microsoft Corp. (In re Microsoft Corp. Antitrust Litig.) (2003, DC Md) 274 F Supp 2d 747
Damages are not available under B & P C § 17200. In re Paxil Litig. (2003, CD Cal) 218 FRD 242, 2003 US Dist LEXIS 21195
Under B & P C § 17200, plaintiffs, current and past users of a prescription drug, need not have been injured by, much less have relied upon, defendant's misrepresentations. In re Paxil Litig. (2003, CD Cal) 218 FRD 242, 2003 US Dist LEXIS 21195
Neither B & P C § 17200 nor Fed. R. Civ. P. 23 required plaintiffs, current and past users of a prescription drug, to point out with specificity the offending conduct, and they were entitled to pursue wrongful business conduct in whatever context such activity occurred. In re Paxil Litig. (2003, CD Cal) 218 FRD 242, 2003 US Dist LEXIS 21195
B & P C § 17200 does not require individualized proof of deception, reliance and injury, thereby presenting the possibility that a large number of victims will have never been subjected to the allegedly offending statements sought to be enjoined, but would nevertheless be benefitted by the monetary amounts sought to be restituted. In re Paxil Litig. (2003, CD Cal) 218 FRD 242, 2003 US Dist LEXIS 21195
Filing of an action by a private plaintiff under California's Unfair Competition Law, B & P C §§ 17200 et seq., does not confer on that plaintiff the stature of a prosecuting officer. Net2phone, Inc. v Superior Court (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 835, 2003 CDOS 4936
Argument that an employer's act of age discrimination was an "intra company" matter not injurious to competitors or consumers was rejected because actual injury to competition was not a required element of proof for a violation of the California Unfair Competition Law, B & P C §§ 17200 et seq. Herr v Nestle U.S.A., Inc. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 855, 2003 CDOS 5043, 2003 Daily Journal DAR 6362
The fact that violations of intellectual property laws may create the underlying unfair or unlawful act under B & P C § 17200 did not transform the statute into a law pertaining to intellectual property for which immunity was provided by the Communications Decency Act, 47 U.S.C.S. § 230. Perfect 10, Inc. v CCbill, LLC (2004, CD Cal) 2004 US Dist LEXIS 17643, 71 USPQ2d 1568
Claims added by plaintiffs, decedent's spouse and children, to action for decedent's wrongful death which had been removed by defendants to federal court, based on California's Unfair Competition Statute, B & P C §§ 17200 et seq., would be dismissed, as plaintiffs did not have standing under U.S. Const. art. III to bring an action in federal court under B & P C §§ 17200 et seq. Nishi v Ethicon, Inc. (2003, ND Cal) 2003 US Dist LEXIS 3101
Where debtors failed to state a valid claim that debt collection agency's policy and procedure of sending collection notices in the form of validation letter and notice of default to debtors and to members of the general public violated the Fair Debt Collection Practices Act, 15 U.S.C.S. §§ 1692 et seq., they also failed to state a valid claim that this policy and procedure was "unlawful" within the meaning of B & P C § 17200. In addition, the debtors failed to state a valid claim that the policy and procedure of which they complained was either "unfair" or "fraudulent" within the meaning of B & P C § 17200. Bush v Loanstar Mortgagee Servs., L.L.C. (2003, ND Cal) 2003 US Dist LEXIS 3313
State common law claims of unfair competition and actions pursuant to B & P C § 17200 are substantially congruent to claims made under the Lanham Act, 15 U.S.C.S. §§ 1051 et seq. Thus, where plaintiff's trademark infringement claim under the Lanham Act fails, its unfair competition claims under both federal and state law also fail. Yellow Cab Co. of Sacramento v Yellow Cab Co. of Elk Grove (2003, ED Cal) 2003 US Dist LEXIS 9458
Lawsuit against wholesale electrical suppliers for alleged violations of California's unfair business practices law, B & P C §§ 17200 et seq., was barred by conflict preemption; application of California's unfair competition law would have thwarted Congress' objective to divide regulation of electric energy into two distinct spheres and to vest exclusive jurisdiction over the wholesale component in federal hands. Cal. ex rel. Lockyer v Mirant Corp. (2003, ND Cal) 2003 US Dist LEXIS 10005
Allegations that wholesale electricity suppliers violated California's unfair competition law, B & P C §§ 17200 et seq., sought redress for actions that fell squarely within the field preempted by the Federal Power Act, 16 U.S.C.S. §§ 824 et seq.; plaintiffs' claims failed because they sought to challenge practices and contracts taken in connection with federal regulations governing the sale of wholesale electricity. As a necessary consequence, plaintiffs attempted to transform California's unfair competition law into a means to regulate conduct that was otherwise regulated by the Federal Energy Regulatory Commission (FERC); that plaintiffs sought to do so on the back of FERC did not afford an avenue to regulate matters that were wholly within FERC's exclusive domain. Cal. ex rel. Lockyer v Mirant Corp. (2003, ND Cal) 2003 US Dist LEXIS 10005
Where an individual brought an action under state law, specifically, California's Unfair Competition Law (UCL), B & P C §§ 17200 et seq., acting as a private attorney general to bring an action on behalf of the general public to challenge the marketing by various national brokerage firms of callable certificates of deposit, or callable CDs, the firms removed the action on the basis that the district court had exclusive jurisdiction over the action under § 27 of the Securities Exchange Act of 1934, codified at 15 U.S.C.S. § 78aa; the appellate court found that the district court lacked jurisdiction over the action in part because the individual had not engaged in artful pleading in order to defeat federal jurisdiction, and his action was remanded to the state court. The individual's claim was not preempted by 15 U.S.C.S. § 78aa because the individual challenged conduct solely under state law; federal law was not a necessary element of the individual's UCL claim, and there were no basic or pivotal federal questions that impinged on his right to relief. Lippitt v Raymond James Fin. Servs., Inc. (2003, CA9 Cal) 2003 US App LEXIS 17657
H & S C § 1395, under the Knox-Keene Act, H & S C §§ 1340 et seq., expressly exempts approved plans from the prohibitions under B & P C §§ 655, 2556, and approved plans operating such offices do not violate §§ 655, 2556, are not acting unlawfully, and thus do not violate B & P C § 17200; thus, an approved provider company did not violate any laws governing unfair business practices when it set up optician centers in retail stores and in agreement with the stores set up optometrists or ophthalmologists in separate but nearby offices, and the court further noted that no harm on the company's part was shown, which was a necessary element under § 17200. Consumer Cause, Inc. v National Vision, Inc. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 1369
Health care service plan was not liable to pay an emergency care provider after a medical provider went out of business because H & S C § 1371.4(e) allowed the plan to delegate its duty to pay to the medical provider. That section provided a safe harbor from an action for unfair competition. California Emergency Physicians Medical Group v PacifiCare of Cal. (2003, Cal App 4th Dist) 2003 Cal App LEXIS 1376
Claims by electricity buyers against energy suppliers, alleging unfair business practices in California's wholesale energy market, in violation of B & P C §§ 17200 et seq., fell within the jurisdiction of the Federal Energy Regulatory Commission, thus preempting the electricity buyers' claims; the suit was dismissed. T & E Pastorino Nursery v Duke Energy Trading & Mktg., L.L.C. (2003, SD Cal) 2003 US Dist LEXIS 16352
Derivative claim alleging that plumbing parts discharged lead into drinking water was allowed to proceed under the Unfair Competition Law (UCL), B & P C §§ 17200 et seq., even though direct claims under the Safe Drinking Water and Toxic Enforcement Act of 1986, H & S C §§ 25249.5-25249.13, enacted as Proposition 65, were dismissed due to failure to serve legally sufficient 60-day notices. The trial court improperly granted summary judgment on the UCL claim, finding that plaintiff environmental group had not performed a Tier 1 test, because the specific test asserted was not a Tier 1 test in that context. Mateel Environmental Justice Foundation v Edmund A. Gray Co. (2003, Cal App 1st Dist) 2003 Cal App LEXIS 1990
Trial court properly dismissed citizens' action against organizations under CCP § 425.16 and the citizens did not and could not meet their statutory burden under the statute of showing a reasonable probability of prevailing on the merits because (1) the challenged statements of the organization were expressions of opinion about an issue of genuine scientific debate, and those statements were noncommercial speech fully protected by the United States Constitution and not actionable under B & P C § 17200 of the Unfair Competition Law, B & P C §§ 17200 et seq., or B & P C § 17500 of the False Advertising Law, B & P C § 17500 et seq., and (2) the citizens' challenge to the organizations' statements regarding the safety of abortion failed as a matter of law because the citizens' own evidence showed that the challenged statements were noncommercial expressions of opinion about an issue of genuine scientific debate. Bernardo v Planned Parenthood Federation of America (2004, Cal App 4th Dist) 2004 Cal App LEXIS 111
B & P C § 17200 does not apply to securities transactions. Bowen v Ziasun Technologies, Inc. (2004, Cal App 4th Dist) 2004 Cal App LEXIS 291
Where a brokerage firm's agents tape recorded calls made from their Georgia office to California residents without telling the residents, Georgia law allowing such conduct prevailed over California law prohibiting such tape recording without consent; hence, in a putative class action filed by California residents against the brokerage firm and its agents, alleging that such conduct violated Pen C § 632 of the Invasion of Privacy Act, Pen C §§ 630 et seq., and B & P C § 17200, the trial court properly sustained a demurrer without leave to amend. Kearney v Salomon Smith Barney, Inc. (2004, Cal App 1st Dist) 2004 Cal App LEXIS 437
Protestors' claim under B & P C § 17200 failed because the governmental entity defendants were not businesses for purposes of § 17200 and the protestors alleged no facts that the individual police officers fell into the required definition of "business." Meggs v City of Berkeley (2004, ND Cal) 2004 US Dist LEXIS 7305
Court granted defendant's motion to reconsider the denial of its motion for summary judgment on its claim that plaintiff's Unfair Competition Law, B &P C §§ 17200 et seq., claim for injunctive relief should have been dismissed because there was no substantial live controversy between the parties and because the injunctive relief that plaintiff was seeking was based on contractual rights of a party that no longer existed. Pegasus Satellite TV, Inc. v DirecTV, Inc. (2004, CD Cal) 2004 US Dist LEXIS 8584
Counsel in an class action relating to overtime pay had a duty to consider, and assert as appropriate, all related claims that arose out of the same facts as those in the certification order and that class members would reasonably expect to be considered. Thus, a class member stated a malpractice claim based on the class counsels' failure to pursue an Unfair Competition Law (UCL) claim, as well as the original labor code claim, where caselaw that was announced during the action provided support for a claim for unpaid wages under the UCL. Janik v Rudy, Exelrod & Zieff (2004, Cal App 1st Dist) 2004 Cal App LEXIS 986
Federal likelihood-of-confusion standard applies to unfair-competition claims under B & P C § 17200. Chimney Safety Inst. of Am. v Chimney King (2004, ND Cal) 2004 US Dist LEXIS 11985
Plaintiffs, members of a national rural telecommunications cooperative, had not made a showing that the public was impacted at all by the satellite television company's alleged actions. Thus, their claims under the "fraudulent" prong of the Unfair Competition Law (UCL), B & P C §§ 17200 et seq., failed as a matter of law. Nat'l Rural Telcoms. Coop. v DIRECTV, Inc. (2003, CD Cal) 2003 US Dist LEXIS 25374
Merchant's complaint against credit card services companies alleging that the companies provided financial services to infringers did not state a claim for unfair competition under 15 U.S.C.S. § 1125(a) or under California unfair business practices law; vicarious liability has no application to actions brought under B & P C § 17200 et seq. Perfect 10 v Visa Int'l Serv. Ass'n (2004, ND Cal) 2004 US Dist LEXIS 15895
Age discrimination in violation of the California Fair Employment and Housing Act is an unlawful employment practice that may be enjoined under California's Unfair Competition Law, B & P C § 17200 et seq., whose remedies are cumulative. Alch v Superior Court (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 1531

1.5. Abuse of Statute
Defendant, an attorney, appealed the denial of his anti-SLAPP motion, CCP § 425.16, in an action by the attorney general to stop the attorney from filing allegedly abusive unfair competition lawsuits. Defendant's appeal was dismissed as frivolous because the anti-SLAPP statute specifically exempted actions by public prosecutors, including the attorney general; the court commented that the appeal virtually had the words "brought for reasons of delay" tattooed on its forehead. >People ex rel. Lockyer v Brar (2004, 4th Dist) 115 Cal App 4th 1315
Dissatisfied former patient was entitled to strike a medical institute's trademark infringement claims and claims under B &P C § 17200, which arose from the patient's creation of two websites and registration of two Internet domain names containing the institutes trademark name in order to disseminate critical consumer commentary; the patient properly filed a motion to strike pursuant to the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, CCP § 425.16, because the relief sought by the institute would have had a chilling effect on the patient's free speech rights under U.S. Const. amend. I. Bosley Med. Inst., Inc. v Kremer (2004, SD Cal) 2004 US Dist LEXIS 8336

2. Particular "Unfair Competition"
Unfair competition may consist of appropriating property of another and selling it as one's own. Ojala v Bohlin (1960, 2nd Dist) 178 Cal App 2d 292, 2 Cal Rptr 919
Misuse of confidential information in breach of trust and in competition with trustor is unfair competition, and for that reason alone equity will grant appropriate relief. Ojala v Bohlin (1960, 2nd Dist) 178 Cal App 2d 292, 2 Cal Rptr 919
As matter of law, defendant's violation of fiduciary duties as officer of plaintiff corporation and unfair competition by other defendants (competing corporation and its president) were shown by evidence that officer's conduct was designed to obtain plaintiff's employees for competitor, that he misled management about danger of competitor employing plaintiff's personnel, that he suggested plaintiff defer part of its employees' salary increases without divulging his solicitation of employees for competitor or of plans for further solicitations if negotiations were successful, and that he disclosed to competitor confidential information about salaries of able and desirable employees to facilitate their solicitation by competitor. Bancroft-Whitney Co. v Glen (1966) 64 Cal 2d 327, 49 Cal Rptr 825, 411 P2d 921, 24 ALR3d 795
The trial court erred in sustaining a demurrer to the People's complaint seeking an injunction and assessment of civil penalties for unlawful business practice as defined by B & P C § 17200, where the complaint alleged that defendants, a corporation and its officers, had been engaged for approximately one year prior to the filing of the complaint in commercially distributing and possessing for commercial distribution obscene matter as defined in Pen C § 311(a), and specifically had distributed or possessed for distribution various copies of 44 named obscene films and various copies of three named obscene magazines. Though B & P C § 17200, deals with "unfair competition" it is liberally construed to extend the meaning of that term to anything that can properly be called a business practice and that at the same time is forbidden by law. The complaint adequately alleged unlawful conduct as a business practice. It was not necessary additionally to allege specifically that the unlawful business practice was anticompetitive or harmful to consumers. The fact that certain conduct is a crime will not prevent the issuance of an injunction if the conduct also falls within a specific statute authorizing an injunction, and B & P C § 17202, specifically authorizes injunctions and civil penalties in addition to the remedies of the penal law. People v E.W.A.P., Inc. (1980, 2nd Dist) 106 Cal App 3d 315, 165 Cal Rptr 73
Because an unlawful business activity includes anything that can properly be called a business practice and at the same time is forbidden by law, a restaurant that allegedly credited employees' tips against the minimum wage was properly charged with an unfair business practice under B & P C § 17200. The fact the Labor Code provided relief against unlawful labor practices did not foreclose cumulative remedies under the Business and Professions Code if the alleged misconduct did indeed constitute an unfair business practice. Thus, because crediting tips against minimum wages violates the provisions of Lab C § 351, providing such tips are the sole property of the employee, the practice constituted an unfair business practice. People v Los Angeles Palm, Inc. (1981, 2nd Dist) 121 Cal App 3d 25, 175 Cal Rptr 257
A liquor store owner was properly found to have engaged in an unfair business practice within the meaning of B & P C § 17200 (defining unfair competition to include unlawful, unfair or fraudulent business practices), where vehicles in his parking lot were hoisted or towed away without sufficient warning, where drivers were subjected to "let-down" fees, were coerced into paying by physical intimidation or misrepresentation as to the existence of liens or other rights of the tower, were charged unconscionable fees and were forced to waive claims for property damage, and where there was evidence that the owner participated in these practices by authorizing the impounds and by taking kickbacks on fees. People v James (1981, 4th Dist) 122 Cal App 3d 25, 177 Cal Rptr 110
In an action brought by the state against a nursing home alleging multiple unlawful and unfair acts related to patient care, evidence that there was a lack of adequate staff at defendant's facilities constituted not only an unlawful act but an unfair act as well, under B & P C § 17200. An "unfair" business practice under § 17200, occurs when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. People v Casa Blanca Convalescent Homes, Inc. (1984, 4th Dist) 159 Cal App 3d 509, 206 Cal Rptr 164, 53 ALR4th 661
B & P C § 17200, which provides for an injunction against "unfair competition," is not confined to anticompetitive business practice, but rather is applicable, by its terms, to "any unlawful business practice"; and under B & P C § 17204, which includes among those authorized to bring actions for such injunctions "any person acting for the interest of itself, its members or the general public," suit may be brought by any person acting in his own behalf or on behalf of the general public. Thus, two Jewish businessmen and a Jewish civic organization formed to combat prejudice (the latter acting as a private attorney general), who alleged that a "Christian Yellow Pages" publisher's practice of limiting advertisements to those placed by born-again Christians was an unfair business practice causing irreparable injury to members of the general public who were discriminatorily excluded, had standing to bring an action for injunctive relief under B & P C §§ 17200 et seq., either on their own behalf or on behalf of the general public. Pines v Tomson (1984, 2nd Dist) 160 Cal App 3d 370, 206 Cal Rptr 866
B & P C §§ 17200 et seq. (providing for enforcement of laws regarding unfair competition and false advertising), and B & P C §§ 17500 et seq. (prohibiting false advertising), do not apply to political election campaign practices. Thus, in an action by an incumbent assemblyman alleging that by attributing false and derogatory statements regarding him to well-known persons, defendants, a candidate seeking election to plaintiff's seat and her campaign consulting firm had violated both statutes, the trial court erred in overruling defendants' demurrers. O'Connor v Superior Court (1986, 5th Dist) 177 Cal App 3d 1013, 223 Cal Rptr 357
The trial court erred in sustaining the demurrers of defendants, a group of certified shorthand reporters and two insurance companies, to a complaint filed by competing certified shorthand reporters, alleging unfair business practices, arising from the practice of "direct contracting" under which defendant reporters contracted with defendant insurers for the exclusive right to report depositions taken by attorneys representing the insurers' policyholders. Plaintiffs alleged that the contract called for defendant reporters to provide training to facilitate defense of policyholders, to comment upon testimony taken before reporters, to critique attorneys' performance, and to evaluate whether attorneys should be replaced. Whether all this activity violated the requirement that a reporter be impartial (B & P C § 8025; suspension or revocation of reporter's certificate), required expert testimony at trial. Plaintiffs also alleged that defendant reporters allowed defendant insurers a discount for copies of depositions, which may have violated § 8025 despite defendants' assertion that they were merely containing litigation costs. Thus, the issues could not be resolved at the demurrer stage and required trial on the merits. Saunders v Superior Court (1994, 2nd Dist) 27 Cal App 4th 832, 33 Cal Rptr 2d 438
Something more than a single transaction, either ongoing wrongful business conduct or a pattern of wrongful business conduct, must be alleged in order to state a cause of action under the Unfair Business Practices Act. In an action by writers of bad checks against a debt collection agency and its outside attorneys for violation of federal debt collection provisions and state law (including B & P C §§ 17200 et seq.), plaintiffs met this requirement since they alleged a pattern of conduct rather than a single act. Also, with regard to the equitable defense of unclean hands, an equitable bar to relief applies only if the inequitable conduct occurs in a transaction directly related to the matter before the court and affects the equitable relationship between the litigants. Defendants could not rely on alleged inequitable conduct directed to the merchants who received the bad checks; as the alleged bad conduct of plaintiffs did not occur vis-a-vis the debt collector defendants, they could not assert this conduct as a defense to the claim for injunctive relief under the B & P C. Newman v Checkrite Cal. (1995, ED Cal) 912 F Supp 1354
The trial court properly sustained the demurrer of an interinsurance exchange (a reciprocal insurer) to an action by subscribers of the exchange that sought to compel it to deposit into subscriber savings accounts all surplus funds that exceeded legally required amounts. Decisions for managing surplus funds of an insurer are exercises of business judgment, and courts are unqualified to second-guess determinations made by an insurer as to the amount of funds necessary to assure adequate funds to cover catastrophic losses, or as to the optimal form in which the funds should be held. Assuring availability of funds to cover losses is a rational business purpose for an insurer. Moreover, the business judgment rule applies to reciprocal insurers, just as it applies to other business concerns; the relationship between the directors of a reciprocal insurer and its subscribers is identical in all significant ways to the relationship between the directors of any business organization and the organization's investors or other nonmanaging participants. Where the reason is the same, the rule should be the same (CC § 3511). Moreover, management of the exchange's funds did not constitute an unlawful business practice (B & P C § 17200). Actions that are reasonable exercises of business judgment, that are not forbidden by law, and that fall within the discretion of the directors of a business under the business judgment rule cannot constitute unlawful business practices. Lee v Interinsurance Exchange (1996, 2nd Dist) 50 Cal App 4th 694, 57 Cal Rptr 2d 798
Summary judgment for plaintiff manufacturer and distributor of computer video game systems on federal and state claims including California trade name infringment (B & P C §§ 14401 et seq.) and unfair competition (B & P C §§ 17200 et seq.) against defendant, an operating-computer electronic bulletin board which contained and distributed pirated and unauthorized versions of plaintiff's video game software. There was a likelihood of confusion with the use of plaintiff's trade name on the electronic bulletin board; the games and marks were substantially identical. Sega Enterprises Ltd. v Maphia (1996, ND Cal) 948 F Supp 923
In an unfair competition action brought by a private individual and others against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, the trial court properly found that defendant's acts constituted ongoing business practices within the meaning of B & P C § 17200, part of the unfair competition statute. A large number of trees were cut over three different time periods. The fact that these acts were charged as violations of the Z'berg-Nejedly Forest Practice Act (Pub. Resources Code, §§ 4511 et seq.), a conditional use permit, and a temporary restraining order was immaterial. These multiple violations were a course of conduct, not one isolated incident. Furthermore, the fact that defendant may have believed that its conduct was lawful was not a defense. An intent to engage in an unlawful business practice is not an element of a violation of B & P C § 17200, which imposes strict liability. Finally, the fact that other entities might have addressed defendant's violations had no bearing on whether defendant's conduct also constituted an unlawful business practice. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
In an unfair competition action brought by a private individual and others against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, the trial court properly concluded that there was abundant evidence that defendant cut the trees intending to sell the lumber. By cutting the trees for this commercial purpose, defendant engaged in a timber operation, and, since it did not have a timber harvesting plan, as required by Pub. Resources Code, § 4581, of the Z'berg-Nejedly Forest Practice Act (Pub. Resources Code, §§ 4511 et seq.), it violated the act and committed an unlawful business practice under B & P C § 17200. Furthermore, the trial court was not required to defer to the Department of Forestry's interpretation of Pub Res C § 4527, namely, that a timber operation occurs only if the lumber is actually sold, since this was not the only departmental view on the meaning of Pub Res C § 4527. The situation presented by defendant's tree cutting was unique and had never occurred previously. Witness testimony suggested that the lack of a sale might make it difficult to prove that a property owner cut trees for commercial purposes, but that such action might nonetheless be a violation of the act. In the present case, however, there was ample evidence of defendant's intent at the time of the tree cutting. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
In an unfair competition action brought by a private individual and others against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, the trial court properly concluded that defendant's violations of the Z'berg-Nejedly Forest Practice Act (Pub. Resources Code, §§ 4511 et seq.) constituted unlawful business practices under B & P C § 17200. The act was sufficiently clear to give defendant fair notice of the proscribed conduct. Defendant cut the trees with the intent to sell the felled lumber. Pub. Resources Code, § 4581, requires a property owner to have a timber harvesting plan before engaging in timber operations. Pub. Resources Code, § 4527, defines "timber operations" as the cutting of trees for commercial purposes. Cutting trees for the purpose of selling them constitutes a commercial purpose. There was nothing unclear about the act or defendant's conduct. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
In an unfair competition action brought by a private individual, an environmental rights organization, and the county district attorney, against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, plaintiffs were not estopped from asserting that the cutting without an approved timber harvesting plan violated the Z'berg-Nejedly Forest Practice Act (Pub. Resources Code, §§ 4511 et seq.) and constituted unlawful business practices under B & P C § 17200. The fact that after the cut, the Department of Forestry advised defendant to withdraw its timber harvesting plan and cancel its timberland conversion plan had no bearing on defendant's conduct at the time of the cut. The department did nothing to encourage defendant to cut early, nor did defendant rely on the department's advice in choosing to proceed with the cuts nearly three months ahead of schedule. Given the unilateral nature of defendant's actions, there could be no estoppel. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
In an unfair competition action brought by a private individual and others against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, defendant's violations of a conditional use permit could properly form the basis for a claim of unlawful business activity under B & P C § 17200, since such permits have the force of law. First, conditional use permits are part of local zoning laws and are the mechanism for enforcing zoning ordinances. A violation of a permit's conditions is also a violation of the zoning law and is therefore unlawful. Second, the county municipal code in the present case expressly made unpermitted uses unlawful. Moreover, nothing in the county land use or zoning ordinances suggested that remedies for permit violations were limited to those outlined in the county code. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
In an unfair competition action brought by a private individual and others against a ski resort, after defendant, while litigation was pending, cut down more than 1,800 trees to carry out its planned project to develop additional ski runs, defendant's violation of a temporary restraining order (TRO), which was issued immediately after the trees were cut and enjoined defendant from any further cutting or removal of trees, could properly form the basis for a claim of unlawful business activity under B & P C § 17200. The TRO was issued on Jan. 30 and was extended on Mar. 10 "until the question of whether to issue an injunction may be heard and resolved" on April 19. On Mar. 17, defendant cut an additional 18 trees in the disputed area, thereby violating the TRO. Under CCP § 527, which provides for a 20-day extension when a TRO is granted without notice, the TRO had not lapsed by operation of law by the time of the Mar. 17 cutting, even though the order lasted for more than 20 days. By the statute's express language, the 20-day time frame applies only to TRO's issued without notice to the opposing party. However, defendant was given notice when it was told when and where plaintiffs would apply for relief. Further, defendant's TRO violation was not required to be handled in contempt proceedings. Proceedings under the unfair competition statutes are cumulative to other possible remedies or penalties, and violations of a TRO may therefore be prosecuted as an unlawful business practice. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
The unlawful business activity proscribed by B & P C § 17200, consists of any type of business practice that, at the same time, is forbidden by law. In essence, an action based on § 17200 to redress unlawful business practices "borrows" violations of other laws and treats them as unlawful practices that are independently actionable under § 17200. Laws that have been enforced under § 17200's "unlawful" prong include antidiscrimination laws, antitrust laws, criminal laws, environmental protection laws, fish and game laws, housing laws, labor laws, and vehicle laws. The statute does not give the courts a general license to review the fairness of contracts but rather has been used to enjoin deceptive or sharp practices. Californians for Population Stabilization v Hewlett-Packard Co. (1997, 6th Dist) 58 Cal App 4th 273, 67 Cal Rptr 2d 621
In an unfair business practice action concerning a contract by which a company based in India hired computer engineers in India to work for companies in California, the trial court properly determined that a provision for the recovery of liquidated damages of $30,000 from an employee who breached the agreement by, among other things, quitting before the assignment was completed, did not violate CC §§ 1670.5 and 1671, or constitute an unfair business practice. The provision met the requirements imposed by CC § 1671, which favors the validity of liquidated damages agreements except in certain consumer transactions, and which casts the burden on the opposing party to prove unreasonableness. A liquidated damages provision is not invalid merely because it is intended to encourage a party to perform, so long as it represents a reasonable attempt to anticipate the losses to be suffered. While a standardized employment contract does not present a realistic opportunity to negotiate a liquidated damages provision, that in itself does not make the provision unreasonable. Since the liquidated damages clause met the requirements imposed by CC § 1671, no claim could be made that the provision was nonetheless unconscionable under CC § 1670.5. Californians for Population Stabilization v Hewlett-Packard Co. (1997, 6th Dist) 58 Cal App 4th 273, 67 Cal Rptr 2d 621
In an unfair business practice action concerning a contract by which a company based in India hired computer engineers in India to work for companies in California, the trial court properly determined that the inclusion of unenforceable terms in the form employment contract was not a deceptive practice under B & P C § 17200. It was stipulated that the documents were legal under Indian law, and the mere fact that certain provisions were unenforceable in California did not render the use of the documents an unfair business practice. Californians for Population Stabilization v Hewlett-Packard Co. (1997, 6th Dist) 58 Cal App 4th 273, 67 Cal Rptr 2d 621
Defendant publishers' motions for summary judgment were granted as to all claims except for the claim that one publisher's prompt-pay sweepstakes was an illegal lottery, in an action on behalf of plaintiff and the general public of California, seeking to enjoin various statements by defendants in their magazine sweepstakes solicitations. Plaintiff claimed sweepstakes solicitations violated state laws prohibiting false and misleading advertising, that the operation of the sweepstakes constituted an unfair business practice, and that they were illegal lotteries. The sweepstakes did not fit within the scope of the lottery statute merely because some customers came to believe they could enhance their chances of receiving further solicitations if they purchased a product. Because eligibility for customer-only sweepstakes did not hinge on the payment of consideration, they were not illegal. However, it could not be determined whether the prompt-pay sweepstakes imposed a new obligation on potential entrants and required contestants to pay something to enter. Haskell v. Time, Inc. (1997, ED Cal) 965 F Supp 1398
"Unfair competition" means any unlawful, unfair, or fraudulent business act or practice (B & P C § 17200). A business practice constitutes unfair competition if it is (1) forbidden by any law, be it civil, criminal, federal, state, municipal, statutory, regulatory, or court-made, or (2) unfair, that is, if it offends an established public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. The test of whether a business practice is "unfair" involves an examination of that practice's impact on its alleged victim, balanced against the reasons, justifications, and motives of the alleged wrongdoer. In brief, the court must weigh the utility of defendant's conduct against the gravity of harm to the alleged victim. People v Duz-Mor Diagnostic Laboratory, Inc. (1998, 2nd Dist) 68 Cal App 4th 654, 658, 662, 80 Cal Rptr 2d 419
Plaintiff class members did not have a cause of action against the California State Lottery Commission (CSLC) for money lost by Keno players during the period CSLC operated the Keno lottery game before it was declared illegal where the basis of plaintiffs' claim was that operation and promotion of Keno constituted unfair business practices in violation of B & P C §§ 17200 and 17500 (Unfair Practices Act). The Unfair Practices Act applies to specific "persons," which term means and include all natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons (B & P C § 17201). However, government entities, such as CSLC, are not included in this definition. Thus, plaintiffs' unfair business practices and misleading advertising claim failed as a matter of law. Janis v California State Lottery Com. (1998, 2nd Dist) 68 Cal App 4th 824, 831, 80 Cal Rptr 2d 549
The court granted defendant's motion to dismiss as to claims by plaintiff who received a collection letter at her home which was delivered by defendant Western Union's "Total Collection Solution" message service. Allegations were insufficient under B & P C § 17200. While plaintiff may have found Western Union's tactics offensive, she was unable to set forth any factual allegations that the defendant's approach violated any state or federal provisions. Aquino v Credit Control Services (1998, ND Cal) 4 F Supp 2d 927
In an action for violations of the Fair Debt Collection Practices Act (FDCPA), 15 USCS §§ 1692 et seq., and the California Unfair Business Practices Act (CUBPA), B & P C §§ 17200 et seq., the court observed that UCC §§ 2709 and 2710 are contained in Division 2 of the California Commercial Code which governs "Sales," and Chapter 7 which governs "Remedies." The imposition of a service charge in question was not governed by Division 2, but by Division 3, of the California Commercial Code. The CUBPA prohibits unfair competition; and because the imposition of a service charge and representations concerning the same constituted violations of the FDCPA, defendants' actions also violated the CUBPA. The service charge was neither expressly authorized by an agreement creating the debt or permitted by law; representation that the service charge was authorized under California law falsely represented the character and legal status of the debt and was deceptive; and these violations constituted "unfair competition." Ballard v Equifax Check Services, Inc. (1998, ED Cal) 27 F Supp 2d 1201
As to a claim for unfair competition under B & P C § 17200, the court reasoned that although the litigation privilege is codified in CC § 47, the crux of the allegations against a bank was that it has exceeded its role as a mere lender to the debtor and had exercised control through a pattern of wrongful acts and unfair practices which had injured the debtor, creditors and estate; this type of conduct was separate and distinct from conduct typically found within even the most litigious court proceedings; and the litigation privilege does not bar suits addressing such injurious conduct. The bank allegedly engaged in unfair business practices by imposing confirmation of a plan of reorganization as an event of default under a stock pledge, and other wrongful acts including discouraging other investors from purchasing the debtor's assets by refusing to make information available about the debtor to prospective investors on reasonable terms. The court denied a motion to dismiss the unfair competition claim. In re Morpheus Lights, Inc. (1998, ND Cal) 228 BR 449
In an action against a homeowner's insurer for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices stemming from defendant's failure to pay medical and funeral expenses resulting from a drive-by shooting where the homeowners' daughter was one of several people in the car, the trial court did not err in sustaining defendant's demurrer. The medical coverage provision in question limited liability to third persons injured away from the home to injuries caused by an insured, and here, there had been no determination that the insureds' daughter had caused the death and injury. Thus, there was no violation of the unfair competition law. Shaolian v Safeco Ins. Co. (1999, 2nd Dist) 71 Cal App 4th 268, 276, 83 Cal Rptr 2d 702
B & P C § 17200 is not confined to anticompetitive business practices, but is also directed toward the public's right to protection from fraud, deceit, and unlawful conduct. Thus, California courts have consistently interpreted the language of § 17200 broadly. The statute imposes strict liability; it is not necessary to show that the defendant intended to injure anyone. To state a claim under § 17200, a plaintiff need not plead and prove the elements of a tort. Instead, one need only show that members of the public are likely to be deceived. Allegations of actual deception, reasonable reliance, and damage are unnecessary. Further, the statute authorizes courts to order restitution without individualized proof of deception, reliance, and injury if necessary to prevent the use or employment of an unfair practice. Because § 17200's definition is disjunctive, the statute is violated where a defendant's act or practice is unlawful, unfair, fraudulent or in violation of § 17500. Here, an auto financing company's use of the 365/360 method to calculate interest on wholesale floor plan loans to plaintiff dealership did not violate § 17200 as a matter of law. On the evidentiary record, the trial court reasonably concluded that plaintiff could not be deceived since in her capacity as plaintiff's agent vested with responsibility for overseeing its wholesale floor plan financing, plaintiff's business manager received adequate disclosures of defendant's use of the 365/360 interest calculation method and indeed had actual knowledge of its use. South Bay Chevrolet v General Motors Acceptance Corp. (1999, 4th Dist) 72 Cal App 4th 861, 877, 85 Cal Rptr 2d 301
Where plaintiff car dealership contended that defendant auto financing company's business practice of calculating interest under the 365/360 method was an unlawful business practice under various theories, the trial court did not err in granting defendant's motion for judgment under CCP § 631.8 on plaintiff's private attorney general claim on behalf of all California dealerships receiving similar financing. Based on substantial evidence, the trial court reasonably found nothing to support a conclusion that defendant-financed California dealerships were similarly situated with respect to the likelihood of deception by defendant's business practices involving use of the 365/360 method to calculate interest. Similarly, the court reasonably found nothing to support a conclusion that defendant's statewide business practices were otherwise unlawful, unfair, fraudulent, or in violation of B & P C § 17500. Hence, the court properly determined that it could not make any determination that defendant was liable statewide. South Bay Chevrolet v General Motors Acceptance Corp. (1999, 4th Dist) 72 Cal App 4th 861, 894, 85 Cal Rptr 2d 301
The Unfair Competition Act (B & P C §§ 17200 et seq., UCA) allows, and neither Ins C § 1631 nor Cal Code of Regs title 10 § 2110 et seq. bar actions brought by private plaintiffs under the UCA for violations of these licensing requirements. While restitution is available under the UCA as the applicable remedy, plaintiff did not properly plead restitution. While such causes of action may be stated, the operative complaints in this action were deficient, and so leave to amend the complaints should have been granted. Stevens v Superior Court of Los Angeles County (1999, 2nd Dist) 75 Cal App 4th 594
In a class action against a life insurance company alleging violation of the unfair competition law (B & P C §§ 17200 et seq.), the trial court properly overruled the insurer's demurrer to this cause of action, where the complaint alleged, @ifinter alia,@rf that the insurer pursued the sale of universal life insurance policies as a replacement of whole or term policies knowing that such replacement seldom, if ever, was appropriate and that it provided its agents with materials instructing them how to manipulate premium schedules in a deceptive manner. The complaint thus alleged a pattern of behavior or course of conduct constituting unfair business practices. Wilner v Sunset Life Ins. Co. (2000, 2nd Dist) 78 Cal App 4th 952, 964, 93 Cal Rptr 2d 413
In an action challenging a rental car company's fuel service charge, the claim that the amount of the service charge was an unfair business practice did not state a cause of action under the unfair competition law (B & P C § 17200). The charges were avoidable within the meaning of CC § 1936(m)(2) and therefore lawful; by authorizing avoidable fuel service charges § 1936(m)(2) provides a "safe harbor" and insulates the reasonableness of such charges from judicial scrutiny. The Legislature's failure to explicitly limit the amounts rental car companies may charge for optional services, as it did limit other charges such companies may charge, can reasonably be thought to reflect a legislative intent to permit such avoidable charges to be regulated only by free market forces. Schnall v Hertz Corp. (2000, 1st Dist) 78 Cal App 4th 1144, 1154, 93 Cal Rptr 2d 439
In an action challenging a rental car company's fuel service charge, the claim that the service charge was unfairly and fraudulently concealed or obscured stated a cause of action under the unfair competition law (UCL) (B & P C § 17200). The confusing provisions of the rental agreement and rental record appeared to violate fundamental rules of honesty and fair dealing, and CC § 1936(m)(2) did not provide a "safe harbor" against allegations that defendant confused and misled customers in violation of the "unfair" and "fraud" prongs of the UCL. A question of fact existed as to whether a reasonable customer would know from the rental agreement and record the amount of the fuel service charge to which the customer might be exposed if he or she rejected the fuel purchase option. Schnall v Hertz Corp. (2000, 1st Dist) 78 Cal App 4th 1144, 1163, 93 Cal Rptr 2d 439
An unfair business practice action (B & P C §§ 17200 et seq.) against every major provider of cellular telephone services and related wireless personal communication services was preempted by federal law. Plaintiffs could not invoke state law to complain of having to pay noncommunication time after August 7, 1995, since the preemptive force of 47 USCS 332(c)(3)(A) became effective in California on August 8, 1995, and such a complaint would involve the state in regulating "the rates charged." However, plaintiffs could invoke state law to complain that such charges, before and after August 5, 1995, were not disclosed; this is because such disclosure is a "term and condition" over which the state can exercise its laws. Plaintiffs could also claim that defendants violated their pre-August 8, 1995 tariffs on file with the Public Utilities Commission. Ball v GTE Mobilnet (2000, 3rd Dist) 81 Cal App 4th 529, 533, 96 Cal Rptr 2d 801
In an action challenging a car rental company's refueling charges for rental cars returned without full gas tanks, the trial court properly sustained defendant's demurrer without leave to amend, since the gas charge at issue was not prohibited by CC § 1936(m)(2). Where an allegedly unfair business practice has been authorized by the Legislature, no factual or equitable inquiry need be made, as the court can decide the matter entirely on the law. By authorizing avoidable fuel service charges, § 1936(m)(2) insulates the reasonableness of such charges from judicial scrutiny. In addition, no cause of action was stated under the fraud prong of B & P C § 17200, since each of the three payment options was clearly printed and the public was not likely to be deceived. Shvarts v Budget Group, Inc. (2000, 2nd Dist) 81 Cal App 4th 1153, 1158, 97 Cal Rptr 2d 722
The court granted defendant model's motion for summary judgement as to plaintiff magazine enterprise's claims, which included trademark dilution and infringement, and unfair competition. Defendant's web-site included photographs of herself and others (both nude and clothed), a fan club posting board, and an autobiography. Plaintiff had informed defendant that use of plaintiff's trademarks were restricted; he invited defendant to join plaintiff's new Cyber Club. Defendant refused this invitation, and plaintiff had continued to demand that defendant remove the "Playmate of the Year" title from defendant's home page as well as remove plaintiff's watermark from the background. Playboy Enterprises, Inc. v Terri Welles, Inc. (2000, SD Cal) 78 F Supp 2d 1066
In an action under the unfair competition law (UCL) (B & P C §§ 17200 et seq.) for declaratory and injunctive relief on the issue of whether an insurer could shed all liability under a class of policies providing asbestos and environmental (A & E) coverage by restructuring itself and assigning its liabilities to another company, the trial court erred in granting the insurer's demurrer without leave to amend, since allegations that defendant violated the UCL when it transferred the A & E policies held by its California policyholders without obtaining the policyholders' consent, and then disclaimed any further responsibility, stated a cause of action under CC § 1457. The violation of § 1457, in turn, was adequate to allow plaintiffs to proceed under the theory that the insurer's action was an unlawful business practice under the UCL. In addition, allegations that the notice that was sent was deceptive and misleading were sufficient to state a cause of action for fraud under the UCL. Aicco, Inc. v Insurance Co. of N. America (2001, 1st Dist) 90 Cal App 4th 579, 109 Cal Rptr 2d 359
In an action under the Unfair Competition Law (UCL) (B & P C §§ 17200 et seq.) against 194 insurance companies, alleging that their practice of adjusting property loss claims on the basis of replacement cost less depreciation, rather than on the basis of fair market value, constituted an unlawful business practice, the trial court properly sustained defendants' demurrers without leave to amend and entered a judgment of dismissal. The complaint did not state a claim under the UCL, since it failed to take into consideration the safeguard of the appraisal process provided by the Legislature within Ins C § 2071. The appraisal provision created an arbitration agreement subject to the statutory contractual arbitration law. As an arbitration award, an appraisers' award could be vacated or confirmed and judgment entered upon it. Thus, notwithstanding how an insurer approached valuation of damaged property during adjustment of the claim, the Legislature had provided the remedy to which the parties must resort for determination of the amount of loss. Nor could it be concluded that a practice by one or more carriers of using the "replacement cost less depreciation" valuation was an unfair practice. The complaint did not allege that defendants violated § 2071 or that they interfered with the appraisal process or engaged in any acts which might have been a breach of the standard form policy. Community Assisting Recovery, Inc. v Aegis Security Ins. Co. (2001, 2nd Dist) 92 Cal App 4th 886, 112 Cal Rptr 2d 304
In an action against an appliance manufacturer alleging that it required retailers to maintain minimum resale prices for its products, the trial court properly sustained a demurrer without leave to amend. The complaint failed to state a cause of action for violation of the unfair competition law (B & P C §§ 17200 et seq.), since the conduct was permissible under the Colgate doctrine and since, as a matter of law, conduct that had been determined to be permissible under this doctrine could not be deemed "unfair" under the unfair competition law. This was not to say that in all circumstances an "unfair" business act or practice must violate an antitrust law to be actionable under the unfair competition law. However, conduct alleged to be "unfair" because it unreasonably restrained competition and harmed consumers, such as the resale price maintenance agreement at issue, was not "unfair" if the conduct was deemed reasonable and condoned under antitrust laws. Chavez v Whirlpool Corp. (2001, 2nd Dist) 93 Cal App 4th 363, 113 Cal Rptr 2d 175
Automobile insurers selling single multiple vehicle policies who, consistent with Ins C § 11580.2, refused to recognize the piecemeal "by vehicle" waiver of uninsured motorist coverage, were not liable under the Unfair Competition Law (UCL). Allegations that they had engaged in such conduct did not reflect an unlawful or unfair business activity and was therefore no cause of action could be stated under B & P C § 17200. However, as to insurers selling separate policies for multiple vehicles who were alleged to have adopted the same business practice and to have refused to recognize any waiver that did not apply to all of an insured's vehicles, such a practice, while not an "unlawful" business activity, might well constitute an "unfair" business practice actionable under the UCL. Smith v State Farm Mutual Automoblie Ins. Co. (2001, 2nd Dist) 93 Cal App 4th 700, 113 Cal Rptr 2d 399
In an action under the Unfair Competition Law (UCL) (B & P C § 17200 et seq.) against a health care service plan, which had a capitation agreement with a physicians association that had filed for bankruptcy, to recover payment for services plaintiff hospital had provided to defendant's subscribers, the trial court properly granted the plan's demurrer, despite the claim that the plan's practices of requiring providers to waive rights against it and its subscribers and transferring its risk to intermediaries amounted to unfair business practices. Capitation agreements were specifically approved of by the Legislature (H & S C § 1348.6) and, as such, there was nothing unlawful, unfair, or fraudulent about those agreements. Further, because the remedies available under the UCL, namely injunctions and restitution, were equitable in nature, courts had the discretion to abstain from employing them. Where a UCL action would drag a court of equity into an area of complex economic policy, equitable abstention was appropriate. In such cases, it was primarily a legislative and not a judicial function to determine the best economic policy. Desert Healthcare Dist. v PacifiCare FHP, Inc. (2001, 4th Dist) 94 Cal App 4th 781, 114 Cal Rptr 2d 623
When a party sues an ostensible competitor under the unfair prong of B & P C § 17200, the claim may be proven only on the basis of conduct that threatens an incipient violation of an anti-trust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition. Nothing in this test requires actual harm to competition or consumers. Watson Labs., Inc. v Rhone-Poulenc Rorer, Inc. (2001, CD Cal) 178 F Supp 2d 1099
In an action by a hospital group's board member against a lawyer and the medical advocacy organizations he represented, alleging unfair business practices, a violation of B & P C § 17200, and defamation arising from the publishing of a newspaper article regarding the lawyer's letter to the attorney general seeking investigation of the hospital group's activities, pursuant to Gov C § 12598(a), the trial court properly granted the lawyer's motion to strike the complaint pursuant to the anti-SLAPP statute, CCP § 425.16, which allows a trial court to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue; section 425.16 applies to both causes of action. Kashian v Harriman (2002, 5th Dist) 98 Cal App 4th 892, 120 Cal Rptr 2d 576
Medical care provider's filing of liens against a Medicaid beneficiary's personal injury claims was protected from a Medicaid beneficiary's class action claim alleging unfair competition because there was a statutory basis for the filing of the lien, which provided a safe harbor against the unfair competition claim. Olszewski v Scripps Health (2003) 30 Cal 4th 798, 69 P3d 927
Violations, as found by the jury, of the State Bar Act (SBA), Cal. B & P C § 6125, the Unlawful Detainer Assistants Act (UDAA), B & P C §§ 6400 et seq., and the Consumer Legal Remedies Act (CRA), CC §§ 1750 et seq., were not contested on appeal and demonstrated that defendant engaged in a prolonged pattern of unfair business practices; thus, even if defendant was correct that the false advertising claims under Cal. B & P C § 17500 were not supported by sufficient evidence, injunctive relief against defendant under the Unfair Competition Law, Cal. B & P C §§ 17200 et seq., was proper based on the unchallenged verdicts on the UDAA and CRA theories, while, apart from false advertising, the SBA violations alone supported an injunction preventing defendant from continuing to hold himself out as a source for "Legal Aid" or "Legal Services" and the like. Brockey v Moore (2003, 3rd Dist) 107 Cal App 4th 86, 131 Cal Rptr 2d 746
Where insureds filed a purported class action against insurers, alleging that the insurers violated the duty under Cal. Ins C §§ 330-332, 334, and 361 to inform the insureds when they applied for insurance about impending changes to their insurance policy affecting benefits and premiums and that the nondisclosure also violated B & P C §§ 17200 et seq., the insurers' demurrer for failure to state a claim was improperly sustained because the complaint, viewed as asserting the truth for purposes of appeal, alleged a statutory duty to disclose such material changes in the coverage and that the insurers failed to disclose such changes until after the insureds purchased policies. Pastoria v Nationwide Ins. (2003, 2nd Dist) 112 Cal App 4th 1490
On appeal by plaintiffs, consumer advocates and an individual satellite customer, in a class action against defendant satellite companies alleging breach of warranty and false or misleading statements under the Consumer Legal Remedies Act (CLRA), the False Advertising Act, and the Unfair Competition Law (UCL), the trial court did not err in ruling on the companies' motion for summary judgment/summary adjudication, and a determination that the action was without merit because the trial court had the power to determine that the CLRA cause of action was without merit under CC § 1781(c)(3). Although the trial court properly found that the companies' representations that their service was "crystal clear" and "CD quality" were boasts, rather than factual representations, and were not actionable under CC § 1770 and B & P C § 17200, the trial court erred in finding that the companies' representation that customers would receive "50 channels" and a "7 day schedule" were not actionable because these were factual representations, and there were triable issues as to whether the representations were likely to deceive a reasonable consumer. Plaintiffs did not have to produce a consumer survey but could prove the falsity by testing, scientific literature, or anecdotal evidence, and the companies' technical interpretations of its statements, even if possible, could be actionable if they were misleading. Consumer Advocates v Echostar Satellite Corp. (2003, 2nd Dist) 113 Cal App 4th 1351
Because the trial court dismissed the state law claim under B & P C §§ 17200 et seq., whether the alleged misrepresentations about the cash payout were the basis for a claim was not a question before the court, as the trial court had not foreclosed the avenue of relief. Grimes v New Century Mortg. Corp. (2003, CA9 Cal) 340 F.3d 1007
Director's motion for leave to amend complaint to assert statutory unfair business practice and deceptive advertising claims under B & P C §§ 17200 et seq. was denied because the director had known of that particular theory, but opted for the federal claim under § 43(a) (15 U.S.C.S. § 1125(a)) of the Lanham Act, 15 U.S.C.S. §§ 1051 et seq.; passage of the discovery cut-off date and an imminent trial date constituted prejudice, and the director's desired statutory unfair business practice claim would have been futile because the director's putative unfair competition claim would have failed for the same reasons his Lanham Act claim failed. Williams v UMG Recordings (2003, CD Cal) 281 F Supp 2d 1177
Court improperly granted defendants' motion for summary judgment on plaintiff's unfair competition claims, since plaintiff had raised a triable issue of fact as to defendants' market share representations. Because those representations were literally false, they carried a presumption that consumers relied on and were deceived by them. Avid Identification Sys. v Schering-Plough Corp. (2002, CA9 Cal) 33 Fed Appx 854, 2002 U.S. App. LEXIS 5195, 2002-1 CCH Trade Cases P 73651
Former agent's unfair competition claim, premised on intentional interference with contract and unfair competition, failed to survive summary judgment, where defendants did not induce college football player's termination of the contract with the former agent. Bauer v Interpublic Group of Cos. (2003, ND Cal) 2003 US Dist LEXIS 5202
Counterclaim defendants could be potentially liable for an unlawful business practice under the California Unfair Competition Act, B & P C §§ 17200 et seq. if counterclaim defendants did not hold the proper permit for harvesting Dungeness crab under F & G C § 8280.1, but counterclaim plaintiffs had not shown that the permits held by defendants were not proper. Dooley v Crab Boat Owners Ass'n (2003, ND Cal) 2003 US Dist LEXIS 12381
Under a commercial general liability policy, the insurer did not have a duty to defend the insured, a swap meet, in an action arising from a disabled person's inability to access a restroom. The swap meet intended for the restrooms to be configured as they were, and therefore the inability to access the facilities did not constitute an "accident" or "occurrence" and was not a covered event. Modern Development Co. v Navigators Insurance Co. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 1347
Court denied defendant's motion for summary judgment as to plaintiffs' Bus & P C § 17200 claim because the California courts had held that an employer's treatment of its employees could form the basis for an unfair competition claim. McCaffrey v Brobeck, Phelger & Harrison, L.L.P. (2004, ND Cal) 2004 US Dist LEXIS 2768
Employer's treatment of its employees can form the basis for an unfair competition claim. McCaffrey v Brobeck, Phelger & Harrison, L.L.P. (2004, ND Cal) 2004 US Dist LEXIS 2768
Charter school students and their parents could not sue their public charter schools for violations of B & P C §§ 17200 et seq., misrepresentation, or breach of contract based on allegations that their charter schools failed to deliver a proper public education as charter schools were part of the public school system and, hence, public entities. Wells v One2one Learning Foundation (2004, Cal App 3rd Dist) 2004 Cal App LEXIS 254
Court granted summary judgment pursuant to Fed. R. Civ. P. 56 to counterdefendants on one defendant's claim that counterdefendants engaged in unlawful or unfair business practices pursuant to the California Unfair Competition Act, B & P C § 17200 et seq., by engaging in predatory pricing in violation of B & P C § 17043 because the one defendant had not demonstrated that counterdefendants were capable of injuring competitors or destroying competition. Dooley v Crab Boat Owners Ass'n (2004, ND Cal) 2004 US Dist LEXIS 7117
Where a fishing company claimed a total of $218,292 in damages as a result of not being able to fish due to the cutting of their crab pot lines by certain defendants, their request for compensatory relief could not be recoverable because under California's Unfair Competition Laws, specifically B & P C § 17200, damages were limited to restitution; therefore, the court granted defendants' motion for summary judgment under Fed. R. Civ. P. 56 under the claim. Dooley v Crab Boat Owners Ass'n (2004, ND Cal) 2004 US Dist LEXIS 7117
Patentee's motion to dismiss a company's counterclaim alleging unfair competition pursuant to B & P C § 17200 et seq. was granted, where the company failed to plead with reasonable particularity; the company did not provide a factual basis for the allegation that the patentee knew or should have known that the patent was invalid or not infringed when the patentee filed the present action. Qarbon.com, Inc. v eHelp Corp. (2004, ND Cal) 2004 US Dist LEXIS 7682
Where a national association of chimney-sweep operators permitted the use of two marks by those who finished the association's training-and-certification program, the association was entitled to a default judgment on a claim of unfair competition against alleged infringers who used the marks without certification and who did not respond to the lawsuit; the association set forth in detail facts supporting likelihood of confusion, the dispositive issue. Chimney Safety Inst. of Am. v Chimney King (2004, ND Cal) 2004 US Dist LEXIS 11985
Breach of contract may form the predicate for a claim pursuant to B & P C § 17200 provided it also constitutes conduct that is "unlawful, or unfair, or fraudulent." Nat'l Rural Telcoms. Coop. v DIRECTV, Inc. (2003, CD Cal) 2003 US Dist LEXIS 25374
Plaintiffs, members of a national rural telecommunications cooperative, did not raise a genuine issue of material fact that defendant satellite television company's conduct threatened an incipient violation of an antitrust law, or violated the spirit or policy of those laws or otherwise significantly threatened or harmed competition. Thus, even if plaintiffs were found at trial to be competitors of defendant, their unfair competition claims on the basis of "unfair" business practices would necessarily have failed. Nat'l Rural Telcoms. Coop. v DIRECTV, Inc. (2003, CD Cal) 2003 US Dist LEXIS 25374
Corporation's motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss a claim for fraudulent business practices under B & P C § 17200 was granted because a patentee and an assignee failed to allege that members of the public were likely to be deceived by the corporation's alleged patent infringement. Hull v D & J Sports, Inc. (2004, ND Cal) 2004 US Dist LEXIS 15798
Corporation's motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss a claim for unfair and unlawful business practices under B & P C § 17200 was denied in part because the corporation failed to make a distinction between the different standards required to allege fraudulent business practices and unfair business practices, and thus the corporation failed to argue separately against all three theories in order to successfully dismiss the § 17200 claim. Hull v D & J Sports, Inc. (2004, ND Cal) 2004 US Dist LEXIS 15798
In a class action lawsuit brought by television writers alleging age discrimination, the trial court erred in ruling that the writers had to allege potential competitive harm or likely consumer deception in order to state a claim for unfair competition. Alch v Superior Court (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 1531

3. -Use of Name; Tradenames
While an individual can conduct a business in his own name, he cannot allow a corporation to use his name after having previously given another corporation the right to do so, where such use will create confusion and enable the new corporation to obtain the other corporation's business. Dodge Stationery Co. v Dodge (1904) 145 Cal 380, 78 P 879
In an action to enjoin unfair competition, a complaint alleging the use by the defendant of the plaintiff's trade name and badge, thereby deceiving people and causing them to trade with the defendant when they meant to trade with the plaintiff, is sufficient. Morton v Morton (1905) 148 Cal 142, 82 P 664
A person has the right to use his own name in his own business, even though he may interfere with and injure another's business bearing the same name, provided he does not resort to artifice or do any act calculated to mislead the public as to the identity of the establishments or to produce injury to others beyond that which results from the similarity of names. MacSweeney Enterprises, Inc. v Tarantino (1951) 106 Cal App 2d 504, 235 P2d 266
The use of one's own name is not absolute and one may be enjoined from using his name in connection with his business if such use is calculated to cause confusion or to deceive. MacSweeney Enterprises, Inc. v Tarantino (1951) 106 Cal App 2d 504, 235 P2d 266
While fact that plaintiffs and defendants are not in same geographic area may not be conclusive in determining whether public was deceived or was likely to be deceived by similarity of names used in connection with drive-in restaurant, the wide separation of the competing establishments is factor which trier of fact may properly consider in determining whether such deception exists as to constitute unfair competition for which injunctive relief may be granted. D & W Food Corp. v Graham (1955, 1st Dist) 134 Cal App 2d 668, 286 P2d 77
Similarity of appearance between designation and another's trademark is determined by total effect of designation rather than by comparing individual features. Don Alvarado Co. v Porganan (1962, 3rd Dist) 203 Cal App 2d 377, 21 Cal Rptr 495
Though names and designations that are not capable of becoming technical trademarks or tradenames are not regarded as property, law of unfair competition protects them under doctrine of secondary meaning. Colvig v KSFO (1964, 1st Dist) 224 Cal App 2d 357, 36 Cal Rptr 701
To sustain a cause of action for unfair competition in the use of a tradename justifying the issuance of an injunction, the plaintiff must prove that during prior, continuous use of plaintiff's name or mark, plaintiff's defendant used and is using a tradename which, under all of the circumstances, the purchasing public is likely to confuse with the plaintiff's name or mark, and that, by reason of the deceptive appearances, the public is likely to identify the defendant's product as that of the plaintiff or to conclude that the plaintiff has some connection with the product of the defendant's goods or services. Cowles Magazines & Broadcasting, Inc. v Elysium, Inc. (1967) 255 Cal App 2d 731, 63 Cal Rptr 507
A nonprofit organization may maintain a suit for "unfair competition" to protect its trade name. Ball v American Trial Lawyers Asso. (1971, 2nd Dist) 14 Cal App 3d 289, 92 Cal Rptr 228
Plaintiff winery was entitled to a permanent injunction against a foreign paper products company's use of the word GALLO in violation of trademark infringement and unfair competition laws (B & P C §§ 14200 et seq., 17200 et seq.), defendants' estoppel by acquiescence defense being unavailable under California law; its laches defense having failed; and its mark not having achieved secondary meaning in the United States. Also, defendants' use of the mark constituted dilution under Bus. & Prof. Code § 14330. Such use would likely detract from the unique character of plaintiff's mark. E. & J. Gallo Winery v Pasatiempos Gallo, S.A. (1994, ED Cal) 905 F Supp 1403
The court denied motions to dismiss claims by the owner of a television network entitled "The Crime Channel" that defendants used the service mark "The Crime Channel" in their motion picture about a young boy who watches a cable television station called "The Crime Channel." Where plaintiff alleged that its mark was inherently distinctive and had become known to the consuming public as identifying and distinguishing plaintiff exclusively and uniquely as the source of the services to which the mark applied, distinctiveness and famousness could not be determined as a matter of law. Allegations also were sufficient to state a claim under B & P C § 17200. Films of Distinction v Allegro Film Productions (1998, CD Cal) 12 F Supp 2d 1068
Zipper manufacturer was granted summary judgment on its B & P C § 17100 unfair competition claim against the distributors of a competing zipper where the strength of the manufacturer's mark, the proximate nature of the goods, the similarity of the marks, and the parties' status as direct business competitors supported the conclusion that there was likelihood of confusion and the only factor weighing in favor of the distributors, i.e., the degree of care typically exercised by the purchasers of the parties' products, was undermined by the distributors' own expert survey suggesting that a significant amount of confusion was likely to occur even among that group of sophisticated consumers. YKK Corp. v Jungwoo Zipper Co. (2002, CD Cal) 213 F Supp 2d 1195
Nonrestitutionary disgorgement of profits is not an available remedy in an individual action under the unfair competition law. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
In a royalty tracking service company's action against a producer of Christian music products for trademark infringement, 15 U.S.C.S. § 1114, trade name infringement, B & P C § 14402, and unfair competition, B & P C § 17200, the producer was entitled to summary judgment under Fed. R. Civ. P. 56 on the issue of likelihood of confusion; no reasonable jury could conclude that there was a likelihood of forward or reversed confusion between the producer's Christian music products and the company's music products and business services. The relevant consumers were not likely to associate the producer's Christian products with the services of the company, and the parties' products were not classified as the same genre. M2 Software, Inc. v M2 Communs., L.L.C. (2003, CD Cal) 281 F Supp 2d 1166
Plaintiff was entitled to partial summary judgment on defendant's liability for its unfair competition claims where defendant had committed unfair competition by knowingly importing and distributing unlicensed digital video disc players bearing plaintiff's registered trademarks. Defendant used plaintiff's exact trademark in a way that suggested that plaintiff was sponsoring and endorsing defendant's product. Digital Theater Sys. v Mintek Digital, Inc. (2004, CD Cal) 2004 US Dist LEXIS 16832, 71 USPQ2d 1448

4. -Trade Secrets
Matters that are completely disclosed by goods that one markets cannot be his secret. Futurecraft Corp. v Clary Corp. (1962, 2nd Dist) 205 Cal App 2d 279, 23 Cal Rptr 198
A trade secret may consist of any formula, patent, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it, including formulas for chemical compounds, processes of manufacturing, treating or preserving materials, patents for machines or other devices, and lists of customers. Diodes, Inc. v Franzen (1968, 2nd Dist) 260 Cal App 2d 244, 67 Cal Rptr 19
One who seeks protection against the use or disclosure of a trade secret must plead facts showing (1) the existence of subject matter which is capable of protection as a trade secret, (2) that the secret was disclosed to the defendant, or to a person for whose conduct the defendant is liable, under circumstances giving rise to a contractual or other legally imposed obligation on the disclosee not to use or disclose the secret to the detriment of the discloser, and (3) if the defendant is an employee or former employee of the plaintiff, or if the defendant is charged with having received the secret from an employee or former employee, the facts alleged must also show that the public policy in favor of the protection of the complainant's interest in maintaining the secret outweighs the interest of the employee in using his knowledge to support himself in other employment. Diodes, Inc. v Franzen (1968, 2nd Dist) 260 Cal App 2d 244, 67 Cal Rptr 19
A trade secret agreement is effective only between the contracting parties and does not constitute a bar to free copying by other persons who independently discover the idea. Sinclair v Aquarius Electronics, Inc. (1974, 1st Dist) 42 Cal App 3d 216, 116 Cal Rptr 654, 184 USPQ 682
Unlike a patentable matter, a know-how or trade secret does not necessarily include novelty; it may relate to engineering detail or mechanical improvement, and may be a process, compilation or device which was clearly anticipated in the prior act. And, although a trade secret does not give its owner any monopoly and is subject to being copied once it is given away, the owner is, nevertheless, entirely free to keep his idea secret and not to divulge it to the general public. Sinclair v Aquarius Electronics, Inc. (1974, 1st Dist) 42 Cal App 3d 216, 116 Cal Rptr 654, 184 USPQ 682
Summary judgment for defendant in an action by a patent holder alleging defendant's misappropriation of a trade secret in the design of athletic shoes. Under B & P C §§ 17200 et seq., and CC § 3426.1(d), an unprotected disclosure of a holder's secret terminates the existence of the trade secret; and defendant did not make use of plaintiff's trade secret, if at all, before it was placed in the public domain upon issuance of the patent. Also, summary judgment granted on the alternative ground of statutes of limitation (CCP §§ 338(d), 339(1), CC § 3426.6), plaintiff having constructive knowledge of defendant's products and the potential use of plaintiff's trade secrets based on widespread publicity through advertising, media reporting, and distribution of the shoes. Stutz Motor Car of Am. v Reebok Int'l (1995, CD Cal) 909 F Supp 1353
Where a California corporation sued a Massachusetts corporation alleging that it furnished the California corporation's trade secret to a competitor, the California corporation was entitled to a reasonable royalty, under CC § 3426.3, only if neither actual damages nor unjust enrichment were provable; the California corporation could not be awarded a reasonable royalty, under B & P C § 17200 et seq., because suits by a private party for damages were not authorized under that portion of the code. Cacique, Inc. v Robert Reiser & Co. (1999, CA9 Cal) 169 F.3d 619

5. -Customer Information
Customer list built up by employer over period of years is his property, and its use by former employee for his own advantage will be enjoined. California Intelligence Bureau v Cunningham (1948) 83 Cal App 2d 197, 188 P2d 303, 76 USPQ 234
; Alex Foods, Inc. v Metcalfe (1955, 4th Dist) 137 Cal App 2d 415, 290 P2d 646
; Reid v Mass Co. (1957, 2nd Dist) 155 Cal App 2d 293, 318 P2d 54
Former employee has right to engage in competitive business for himself and to enter into competition with his former employer, even for business of those who have been customers of his former employer, provided competition is fairly and legally conducted. Alex Foods, Inc. v Metcalfe (1955, 4th Dist) 137 Cal App 2d 415, 290 P2d 646
Merely informing customers of one's former employer of change of employment, without more, is not solicitation, and equity will not enjoin former employee from receiving business from former employer's customers, even though circumstances may be such that he should be prohibited from soliciting such business. Alex Foods, Inc. v Metcalfe (1955, 4th Dist) 137 Cal App 2d 415, 290 P2d 646
Trade route cases as well as other cases involving knowledge of customers' buying habits come within rule that former employee who acts on confidential information as to his former employer's customers, acquired during employment, is guilty of unfair competition. Reid v Mass Co. (1957, 2nd Dist) 155 Cal App 2d 293, 318 P2d 54
To establish unfair competition by former employee through use of confidential list of subscribers, it is not necessary to show that former employee actually used such list, if he carried it in his mind or memory. Reid v Mass Co. (1957, 2nd Dist) 155 Cal App 2d 293, 318 P2d 54
Unfair competition by former employee through use of information acquired during course of his former employment was indicated where information was confidential and not readily accessible to competitors, he solicited his former employer's customers with intent to injure former employer, he sought out certain preferred customers whose trade was particularly profitable and whose identities were not generally known to trade, business was such that customer would ordinarily patronize only one concern, and established business relation between customer and former employer would normally continue unless interfered with. Reid v Mass Co. (1957, 2nd Dist) 155 Cal App 2d 293, 318 P2d 54
Where defendant used recorded information with reference to course and custom of plaintiff's customers' dealings, including their reputation and credit standing, which he could not have secured other than as employee of plaintiff to plaintiff's detriment while he was still supposedly working for plaintiff, and where he, for benefit of other defendants made use of information he had secured in his capacity as fiduciary and which he had agreed in writing to return but did not, this amounted to trade secret larceny. Southern California Disinfecting Co. v Lomkin (1960, 2nd Dist) 183 Cal App 2d 431, 7 Cal Rptr 43
An individual's complaint, which alleged that defendant store failed to advise customers that some of its products contained saccharin, sufficiently stated a cause of action for unfair competition under California's unfair competition statutes (UCS) (B & P C §§ 17200 et seq.). Thus, the court erred in sustaining defendant's demurrer. Plaintiff alleged that defendant's failure to advertise and post signs about the saccharin content of some of its products violated the federal Food, Drug, and Cosmetics Act and that this violation constituted an unfair business practice within the meaning of the state statutes. Accepting plaintiff's allegations as true, as a court must in ruling on a demurrer, and given the broad reach of "unfair competition" under the UCS, plaintiff stated the elements of a cause of action for unfair competition sufficient to withstand a general demurrer. Engaging in the sale of products containing saccharin without also posting a federally required notice constituted an unlawful business activity-a business practice that is also an act forbidden by law. Reese v Payless Drug Stores Northwest, Inc. (1995, 1st Dist) 34 Cal App 4th 19, 40 Cal Rptr 2d 75

6. -Advertising
Advertisements stating or suggesting that one advertising possesses good will of one well known in business, when such is not fact, constitutes unfair competition. Metro-Goldwyn-Mayer, Inc. v Lee (1963, 2nd Dist) 212 Cal App 2d 23, 27 Cal Rptr 833
Actual public deception or confusion arising from misleading advertisements need not be shown to establish fact of unfair competition; it is likelihood or probability of public deception that forms acid test. Metro-Goldwyn-Mayer, Inc. v Lee (1963, 2nd Dist) 212 Cal App 2d 23, 27 Cal Rptr 833
Use in radio and television commercials of song, allegedly so popularized by plaintiff that her name was identified with the song, and use of singer purportedly imitating plaintiff's voice and style did not amount to unfair competition. Sinatra v Goodyear Tire & Rubber Co. (1970) 435 F.2d 711, 168 US Pat Quart 12, cert den 402 US 906, 28 L Ed 2d 646, 91 S Ct 1376
A state regulation providing for the imposition of civil monetary penalties for the negligent dissemination of untruthful or misleading advertising does not offend the free speech provisions of U.S. Const., First Amend., and Cal. Const., art. I, § 2. Thus, in an action by a district attorney against a real estate company for injunctive relief and to recover civil penalties for alleged dissemination of false and deceptive newspaper advertisements in violation of B & P C § 17500, prohibiting false or misleading advertising, and B & P C § 17200, prohibiting unfair competition, the trial court erred in ruling that § 17500 was unconstitutional on its face as violating the free speech provision of both the federal and state Constitutions, by permitting recovery of civil penalties for negligently making false and misleading statements in an advertisement, and that § 17200 was unconstitutional as applied to defendants, as defining unlawful and unfair business practices to include a violation of § 17500 thereby permitting recovery of civil penalties for negligent dissemination of false advertising. People v Superior Court of Orange County (1979, 4th Dist) 96 Cal App 3d 181, 157 Cal Rptr 628, cert den 446 US 935, 64 L Ed 2d 787, 100 S Ct 2152
In a class action alleging that a newspaper's two-tiered advertising rate structure amounted to an unfair business practice under B & P C § 17200 (former CC § 3369), in that wholesale distributors of products such as plaintiff were required to pay 30 percent more for an advertisement informing the public where certain products could be purchased at retail than were retail establishments selling the same product, the trial court erred in sustaining defendant newspaper's demurrer without leave to amend and in dismissing the action (CCP § 581(3)), where the complaint stated a prima facie case of detriment to plaintiff that had its genesis in an apparently unfair business practice. Thus, defendant should have been required to justify its practice. Motors, Inc. v Times-Mirror Co. (1980, 2nd Dist) 102 Cal App 3d 735, 162 Cal Rptr 543
A complaint by organizations, parents, and children against a manufacturer, retailer, and two advertising agencies alleging fraudulent, misleading and deceptive advertising in the marketing of sugared breakfast cereals over a period of four years, designed to persuade children, by imagery and example, to influence their parents to buy sugared cereal, alleged sufficient facts to notify defendants of the claim made against them and to frame the issues for litigation, and the allegations were thus sufficient to overcome a general demurrer and to state causes of action for injunctive relief and restitution under both the false advertising law (B & P C §§ 17500-17572) and the unfair competition law (B & P C §§ 17200-17208). The complaint described the alleged deceptive scheme in considerable detail, leaving no doubt as to what advertisements were at issue and as to what deceptive practices were called into question. The contention that the words and images did not constitute misrepresentations, and did not conceal material facts, framed an issue for trial, not demurrer. Committee on Children's Television, Inc. v General Foods Corp. (1983) 35 Cal 3d 197, 197 Cal Rptr 783, 673 P2d 660
Publishers of a "Christian Yellow Pages" limiting advertisements to those placed by born-again Christians, which clearly had business attributes, were engaged in a "business practice" as that term is used in the unfair competition statute (B & P C §§ 17200 et seq.), notwithstanding the fact that they operated under the aegis of a nonprofit religious corporation and believed their work was a ministry. Pines v Tomson (1984, 2nd Dist) 160 Cal App 3d 370, 206 Cal Rptr 866
The Court of Appeal properly determined that plaintiff could state a cause of action against a cigarette manufacturer based on allegations that an advertising campaign targeting minors for the purpose of inducing and increasing their illegal purchase of cigarettes constituted an unlawful and unfair business practice under B & P C §§ 17200 et seq., and that the cause of action was not preempted by the Federal Cigarette Labeling and Advertising Act (15 U.S.C. §§ 1331 et seq.). The express preemption provision in the act providing: "No requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes ...." (15 U.S.C. § 1334(b)) does not encompass the more general duty not to unfairly assist or advertise illegal conduct. The action seeks to prohibit advertising of cigarettes targeting minors based on state statutes prohibiting unfair business practices (B & P C §§ 17200 et seq.) and selling or furnishing cigarettes to minors (Pen. Code, § 308). The prohibition against selling cigarettes to minors is not one "based on smoking and health," but is a prohibition against any advertisement soliciting unlawful purchases of cigarettes by minors. Moreover, given the presumption against preemption, courts assume that the historic police powers of the states are not to be superseded by federal law unless that is a clear and manifest purpose of Congress. Mangini v J.R. Reynolds Tobacco Co. (1994) 7 Cal 4th 1057, 31 Cal Rptr 2d 358, 875 P2d 73
Claims against a securities brokerage were improperly dismissed, in a class action against a federally chartered savings and loan association, its former and current parent companies, and its brokerage subsidiary, for unfair and deceptive business practices in violation of B & P C §§ 17200 (unfair competition) and 17500 (false advertising), fraud, and negligent misrepresentation in connection with the brokerage's inducing the association's customers to purchase investment products that, unlike the products of the federally insured association, were subject to substantial risk of loss. The brokerage was a service corporation wholly owned by the association. The Federal Home Loan Bank Board had disclaimed any intention to preempt any state regulation of service corporations. Neither Congress nor the Bank Board intended that federal law preempt state law claims against service corporations absent an actual conflict. The state law causes of action were not preempted by the Home Owners' Loan Act of 1933, as amended (12 U.S.C. §§ 1461 et seq.) or its implementing regulations. Fenning v Glenfed, Inc. (1995, 2nd Dist) 40 Cal App 4th 1285, 47 Cal Rptr 2d 715
In an action to enjoin allegedly false statements about certain vehicles, the court noted that B & P C § 17200 is designed to protect consumers from fraud and deceit by allowing any member of the public to sue on his or her own behalf; that the statute only applies to activities that can properly be called a business practice; and that plaintiff sufficiently alleged that defendant's publication of defamatory and disparaging statements about the vehicles with intent to deceive the public constituted a business practice under B & P C § 17200. However, plaintiff's claim for relief under B & P C § 17200 was dismissed with prejudice to the extent it sought relief beyond enjoining defendant from making specific statements determined to be unprotected by the First Amendment. Plaintiff would have leave to amend the claim for relief since once a jury has determined that a certain statement is libelous, it is not a prior restraint for a court to enjoin a defendant from repeating that statement. Isuzu Motors Ltd. v Consumers Union of U.S., Inc. (1998, CD Cal) 12 F Supp 2d 1035
Plaintiff sued on behalf of the general public, contending that publishers' advertisements on the covers of books and videotapes, trumpeting falsely inflated investment returns, violated California's false advertising and unfair business practice laws, and the trial court erroneously sustained defendants' demurrers without leave to amend. The complaint stated causes of action for false advertising and unfair business practice and that the advertising, alleged in the complaint to be false, was commercial speech which was not, in the context presented, protected by the First Amendment. As commercial speech, the statements were entitled only to qualified free speech protection. Keimer v Buena Vista Books,Inc. (1999, 1st Dist) 75 Cal App 4th 1220, 1226, 89 Cal Rptr 2d 781
Defendant magazine's conduct violated principles of unfair competition as codified in B & P C §§ 17200 et seq., because defendant used plaintiff's name and likeness; defendant used the name and likeness in an unlawful, unfair, or fraudulent manner; defendant used the name and likeness in a manner constituting unfair, deceptive, untrue or misleading advertising; and plaintiff was injured and suffered damage as a result of defendant's conduct. Hoffman v Capital Cities/ABC, Inc. (1999, CD Cal) 33 F Supp 2d 867
In an unfair competition action alleging a bank was responsible for false and misleading advertising in promoting a credit program as "same-as-cash," the trial court abused its discretion in ruling that the action should not be brought as a representative action, since an individualized inquiry was not required in order to find a violation of B & P C § 17200. Under the unfair competition law, a representative plaintiff need only show that members of the public were likely to be deceived by a practice that was unlawful, unfair, deceptive, untrue or misleading. It therefore was not necessary for the trial court to determine which advertisements, disclosures, or representations actually were relied on by members of the public who participated in the credit program in order to determine liability. The trial court used the wrong standard in focusing on issues of proof regarding individual consumers. Prata v Superior Court (2001, 2nd Dist) 91 Cal App 4th 1128, 111 Cal Rptr 2d 296
In an action brought by plaintiff against defendant manufacturer of dietary supplements for, inter alia, violation of California's unfair competition law, even if the manufacturer's list of a product's ingredients on product labels and on its Web site satisfied the first prong of CCP § 425.16 that the cause of action arose from protected speech, the trial court properly denied the manufacturer's motion to strike the complaint because plaintiff provided sufficient admissible evidence to show he had a probability of prevailing on the merits of his claims. Nagel v Twin Laboratories., Inc. (2003, 4th Dist) 109 Cal App 4th 39, 134 Cal Rptr 2d 420
District court erred in denying producers of a series of magic specials summary judgment on unfair competition claims premised on allegedly falsely advertising that the featured magic tricks had "never before been revealed," brought pursuant to B & P C § 17200 by the owner of a copyrighted home video which revealed the secrets behind certain well-known magic tricks, where the alleged false statements made by the host during the television specials were part of the show and were not made in promotion or marketing of the specials, and where the statements made on the jacket of the videotape of the television specials offered to viewers could not have been observed by potential customers prior to purchase and, therefore, could not have influenced the purchasing decision. Rice v Fox Broad. Co. (2003, CA9 Cal) 330 F.3d 1170
Manufacturer's anti-SLAPP motion to strike a consumer's personal injury complaint was properly denied because although the gravamen of the consumer's false advertising claim was that the manufacturer had made false claims in its advertising about its product, such advertising was not a public issue as contemplated by CCP § 425.16 because it was about a specific consumer product and was made only for the purposes of increasing the sales of that particular product; hence, CCP § 425.16 did not apply to the false advertising claim. Scott v Metabolife Internat., Inc. (2004, Cal App 3rd Dist) 2004 Cal App LEXIS 115, 2004 CDOS 840
Player's claim under the Unfair Practices Act, B & P C §§ 17200 et. seq., was not preempted by the Labor Management Relations Act, § 301 to the extent it was premised on the team and basketball association's instigation of a media campaign designed to portray in a false and negative light. 266 F.3d 979; 2001 U.S. App. LEXIS 20434; 168 L.R.R.M. 2225; 86 Fair Empl. Prac. Cas. (BNA) 1121; 87 Fair Empl. Prac. Cas. (BNA) 1844; 2001 Cal. Daily Op. Service 8123; 2001 Daily Journal DAR 10021

7. -Real Property; Landlord-Tenant
In an action against the owner and operator of a mobile home park for unfair competition, an allegation that the owner and operator of the park advertised the park on an outdoor sign located at the park and in local newspapers as being available to adults only, sufficiently alleged a violation of B & P C §§ 17200-17208, prohibiting deceptive, untrue or misleading advertising, sufficient to withstand a general demurrer, where defendants on several occasions leased park spaces to families with children. People v McKale (1979) 25 Cal 3d 626, 159 Cal Rptr 811, 602 P2d 731
In an action against the owner and operator of a mobile home park for unfair competition, a cause of action alleging a pattern of discriminative conduct on the part of defendants toward particular applicants and tenants, varying from instances of abusive language by managers to discriminative sales and leasing policies, adequately stated a cause of action for unfair competition pursuant to B & P C § 17200, to withstand a general demurrer. People v McKale (1979) 25 Cal 3d 626, 159 Cal Rptr 811, 602 P2d 731
The term "unfair competition" as it is used in B & P C § 17200 (formerly CC § 3369), includes any business practice that is forbidden by law. Thus, a landlord's institution of unlawful detainer actions on the basis of tenant overcrowding was an unlawful business practice, where the landlord had accepted the rentals knowing that overcrowding would occur. The institution of such proceedings was an integral part of the landlord's unlawful business practice of maintaining substandard, dangerous, and overcrowded conditions in the rental property. Hernandez v Stabach (1983, 2nd Dist) 145 Cal App 3d 309, 193 Cal Rptr 350
In an action by property owners against defendants who leased the property from prior owners and allegedly contaminated the property with hazardous waste during the leasehold, a count alleging the nuisance created and maintained by defendant constituted unfair business practices in violation of B & P C § 17200, failed to state facts sufficient to constitute a cause of action. A "practice" requires at a minimum ongoing conduct, while a reasonable interpretation of the complaint showed that defendant's alleged misconduct occurred some 20 years ago. Relief under § 17200 is unavailable to remedy past misconduct. Mangini v Aerojet-General Corp. (1991, 3rd Dist) 230 Cal App 3d 1125, 281 Cal Rptr 827
Landlords who violated a rent control ordinance by requiring prospective tenants to sign long-term leases as a condition of tenancy were liable for statutory penalties and restitution under California's Unfair Competition Law, B & P C § 17200 et seq. People v Beaumont Investment, Ltd. (2003, Cal App 6th Dist) 2003 Cal App LEXIS 1215

8. Actions
Under the statutory prohibition of endless chain marketing and deceptive marketing practices, defendant health and skin care products company and its attorney were not entitled to summary judgment, in an action against it by the company's distributors, where there were material issues of fact whether the distributors' purchasing of large quantities of merchandise was a pyramid scheme emphasizing remuneration through personnel recruitment rather than product sales, under which the distributors would become supervisors and receive commissions on purchases made by later recruited distributors; and where material issues existed whether the attorney attorney would be liable under a statute prohibiting untrue or misleading advertising, and common law fraud, for statements in a promotional video that defendant's profits, driven by retail sales, could never be considered a pyramid scheme. Webster v Omnitrition Int'l, 79 F.3d 776, 1996 US App LEXIS 3873, 96 CDOS 1419, 96 Daily Journal DAR 2427, Fed Sec L Rep (CCH) P 99071 (9th Cir Cal 1996)
Falsely imprisoned immigrant garment workers, allegedly under involuntary servitude, stated a claim for unfair business practices under federal and California labor law. Bureerong v Uvawas, 922 F Supp 1450, (1996 CD Cal)
An action against a seller of discount casino and shopping coupons charging him, first, with misrepresentations and nondisclosures (B & P C § 17500), second, with unfair competition (B & P C § 17200) with respect to the sale of casino coupons, third, with violation of a preliminary injunction (B & P C § 17535.5), and fourth, with violation of the statute governing home solicitation sales (Civ. Code, §§ 1689.5 et seq.), was civil in nature, not penal, and the substantial evidence standard of review generally used in civil actions was proper. People v Toomey (1984, 1st Dist) 157 Cal App 3d 1, 203 Cal Rptr 642
In an action against a seller of discount casino and shopping coupons charged with misleading solicitations, assessment of $150,000 in civil penalties for violation of B & P C §§ 17200 (unfair competition), and 17500 (false advertising), in addition to a $150,000 penalty for violation of a preliminary injunction (B & P C § 17535.5) and restitution (B & P C § 17535) was not excessive as a matter of law. Determination of the number of violations of §§ 17200 and 17500 depends on the circumstances of the case, and the trial court properly used the number of sales, which it estimated at at least 150,000. Since B & P C §§ 17205 and 17534.5, specifically allow for cumulative remedies, the trial court properly assessed penalties under both B & P C §§ 17206 and 17536, for each violation; and since §§ 17206 and 17536 each allows a maximum penalty of $2500 per violation, the court's assessment was clearly reasonable. With respect to violation of the preliminary injunction, since § 17535.5 permitted an award of up to $6,000, and since the seller had repeatedly violated the injunction, the award was reasonable. Finally, since the statutes authorizing restitution (B & P C §§ 17203 and 17535) did not make reliance or actual damages a condition to an award, it was proper for the trial court not to limit restitution to purchasers who appeared at trial and requested refunds. People v Toomey (1984, 1st Dist) 157 Cal App 3d 1, 203 Cal Rptr 642
A retrial based on harmless error violates the requirement of prejudice set forth in Cal. Const., art. VI, § 13. Allied Grape Growers v Bronco Wine Co. (1988, 5th Dist) 203 Cal App 3d 432, 249 Cal Rptr 872
Federal law did not preempt an individual's action under California's unfair competition statutes (UCS) (B & P C §§ 17200 et seq.) to compel a store to display signs advising customers that some of its products contained saccharin, as required by the federal Food, Drug, and Cosmetics Act (FDCA). The FDCA contains no express preemption clause, and the section of the act that specifies the parties who have standing to enforce the FDCA does not constitute such a clause. Further, that act does not impliedly preempt state law. Courts are reluctant to find implied preemption, and a comprehensive regulatory scheme by the federal government is not tantamount to exclusive occupation of the regulated field. Moreover, the two statutory schemes serve differing interests. The primary objective of the FDCA is the protection of public health, and the UCS is primarily concerned with unlawful business practices or unfair competition. If the store's action indeed violated the FDCA, its business practices would fall within the UCS definition of unfair competition. Although, under the facts alleged, the two statutes were intertwined, that intertwining did not support a finding of implied preemption. Reese v Payless Drug Stores Northwest, Inc. (1995, 1st Dist) 34 Cal App 4th 19, 40 Cal Rptr 2d 75
In a class action against a federal savings and loan association, its former and current parent companies, and its brokerage subsidiary, for unfair and deceptive business practices in violation of B & P C §§ 17200 (unfair competition) and 17500 (false advertising), fraud, and negligent misrepresentation in connection with inducing association customers to purchase the subsidiary's investment products that, unlike the products of the federally insured association, were subject to substantial risk of loss, the trial court erred in dismissing the claims on federal preemption grounds. The lawsuit did not, in effect, regulate the operations of a savings association. Actions for fraud are governed almost exclusively by state law, and do not raise issues of great federal interest. Congress did not intend to preempt common law tort claims, effectively granting savings associations immunity from such state law claims. Plaintiff's ability to sue for fraud did not interfere with what the association could do (how it could conduct its operations); plaintiff only insisted that the association not misrepresent how it operated, or employ fraudulent methods. The state could not dictate to the association how it could or could not operate, but the state could insist that the association operate free from fraud and other deceptive practices. Fenning v Glenfed, Inc. (1995, 2nd Dist) 40 Cal App 4th 1285, 47 Cal Rptr 2d 715
Under the Unfair Competition Act (B & P C §§ 17200 et seq.), injunctive relief to prevent unlawful, unfair, or fraudulent business acts or practices, and restitution (that is, disgorgement) of money or property wrongfully obtained "by means of such unfair competition," are authorized (B & P C § 17203). The statute imposes strict liability. It is not necessary to show that the defendant intended to injure anyone. Because the definition contained in B & P C § 17200, is disjunctive, a "business act or practice" is prohibited if it is "unfair" or "unlawful" or "fraudulent." In other words, a practice is prohibited as "unfair" or "deceptive" even if not "unlawful" and vice versa. The "fraud" contemplated by the third prong of B & P C § 17200, bears little resemblance to common law fraud or deception. The test is whether the public is likely to be deceived. This means that a violation, unlike common law fraud, can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. State Farm Fire & Casualty Co. v Superior Court (1996, 2nd Dist) 45 Cal App 4th 1093, 53 Cal Rptr 2d 229
A cause of action against an insurer was properly brought under the Unfair Competition Act (UCA) (B & P C §§ 17200 et seq.) by a group of insured homeowners whose homes were damaged in an earthquake, based on the insureds' allegations of fraudulent deceit and breach of the covenant of good faith implied in their policies. Even though plaintiffs' allegations that the insurer had fraudulently reduced their earthquake coverage charged violations of several of the statutory proscriptions in Ins. Code, § 790.03 (unfair practices in insurance business), and although Ins C § 790.03, cannot serve as a basis for a UCA claim, plaintiffs also alleged acts amounting to common law fraud and multiple breaches of the implied covenant of good faith. Furthermore, as plaintiffs sought injunctive or restitutive relief under the UCA rather than compensatory or punitive damages, their claim did not conflict with any of the public policy reasons for barring UCA claims based on Ins. Code, § 790.03. Similarly, plaintiffs' claim for injunctive relief would not interfere with the Insurance Commissioner's ability to uniformly regulate the insurance industry. State Farm Fire & Casualty Co. v Superior Court (1996, 2nd Dist) 45 Cal App 4th 1093, 53 Cal Rptr 2d 229
In an action brought by an individual on behalf of himself and all others in the state who own or seek to rent or purchase ski bindings against a ski shop, a ski area operator, and six ski binding distributors, agreements between customers and defendants requiring, as a condition of the return of equipment, the customers to sign a form releasing defendants from any liability for injury resulting from use of the equipment, were lawful and enforceable, and did not constitute unfair competition under the Unfair Practices Act (B & P C §§ 17200 et seq.). First, such releases were not overly broad, and the public interest does not preclude enforcement of an agreement to bar claims for negligent adjustment of ski bindings. Second, the releases that certain defendants modified during the pendency of the proceeding, to conform to the law, to exclude product defect or strict liability claims were lawful, even though they did not expressly exclude such claims, since the releases neither expressly included strict liability claims nor excluded claims prohibited by law. Further, even assuming the use of the old releases was actionable, the trial court did not abuse its discretion by choosing not to exercise its power to enjoin defendants from repeating past misconduct (B & P C § 17203). Olsen v Breeze, Inc. (1996, 3rd Dist) 48 Cal App 4th 608, 55 Cal Rptr 2d 818
It is not unconscionable and, therefore not unfair competition under the Unfair Practices Act (B & P C §§ 17200 et seq.), for ski equipment distributors and service providers to require and use general releases from liability as a condition for doing business with them. There is nothing inherently unreasonable in skiers agreeing with distributors or service providers to allocate to skiers the risk of injury from the failure of a ski binding to release properly. The releases at issue deal with risks associated with negligent acts that increase the risks inherent in skiing. Further, consumers are not denied a meaningful choice by virtue of the common use of releases. Their choice to ski already exposes them to a number of risks inherent in that activity. Skiing, like other athletic or recreational sports, however beneficial, is not an essential activity. In addition, even assuming an inequality of bargaining power, there is no credible evidence that release agreements are a surprise to skiers. The agreements themselves are short and the pertinent release language is as prominent as other language in the form. There is also no evidence that distributors or service providers conceal or misrepresent the language of the releases in order to obscure its effect. Olsen v Breeze, Inc. (1996, 3rd Dist) 48 Cal App 4th 608, 55 Cal Rptr 2d 818
In an action brought by two individuals against a state-licensed operator of nursing homes, asserting that defendant's admission agreement and procedures were unfair and deceptive in that they pressured and deceived family members of "private pay" patients into cosigning as responsible parties, i.e., third party guarantors, in contravention of both federal and state law, the trial court erred in granting summary judgment in favor of defendant, even though defendant had made several revisions to its admission agreement and third party guaranty provisions both before and after those motions were filed. Defendant's proposed admission agreement was deceptive in violation of the Unfair Competition Act (B & P C §§ 17200 et seq.), which prohibits acts or practices that are unlawful, unfair, or fraudulent. Although the proposed guaranty accurately and properly informed third party guarantors that their signature was not required in order for a patient to be admitted to one of defendant's nursing homes (42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii)) (federal ban on third party guaranties), it failed to inform them how little they might actually receive in exchange for signing and thereby assuming a potentially large liability. Federal law already entitles a resident's legal representative or an immediate family member to receive a copy of the federally mandated 30-day discharge notice, and state law also requires that residents, or their qualified representative or next of kin, be given reasonable advance notice of any discharge. Since defendant's proposed guaranty did not provide any information about these protections, family members of nursing home residents were likely to be deceived as to the value of the consideration underlying the admission agreement. Podolsky v First Healthcare Corp. (1996, 2nd Dist) 50 Cal App 4th 632, 58 Cal Rptr 2d 89
In an action brought by two individuals against a state-licensed operator of nursing homes, asserting that defendant's admission agreement and procedures were unfair and deceptive in that they pressured and deceived family members of "private pay" patients, that is, those paying with their own funds rather than through government assistance programs, into cosigning as responsible parties, i.e., third party guarantors, in contravention of both federal and state law, the trial court, in granting summary judgment in favor of defendant, erred in failing to address plaintiffs' declarations concerning defendant's presentation and explanation of a resident's admission documents to his or her family members. Plaintiffs' declarations, from several persons who admitted family members to various defendant nursing homes over a three-year period, portrayed an admissions process in which a stack of documents was hurriedly presented to family members for their signatures with little or no explanation. Even if the terms of defendant's guaranty provision were proper, plaintiffs' evidence raised triable issues of fact as to how that document would be presented to the residents' family members. If presented as plaintiffs' declarations suggested, it would likely deceive consumers. Further, plaintiffs' declarations were sufficient to at least raise an inference either that several isolated instances of deceptive conduct existed, or that a business practice existed, that is, that there was a pattern or course of deceptive conduct, under both the pre-1992 version of B & P C § 17200, of the Unfair Competition Act, and under the 1992 amended version of the statute. Finally, in addition to being deceptive or fraudulent under the Unfair Competition Act (B & P C § 17200 et seq.), which prohibits acts or practices that are unlawful, unfair, or fraudulent, should a trier of fact determine that defendant's admissions procedures in effect required the signature of a third party guarantor as a condition of admission, then defendant would also be in violation of 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) (federal ban on third party guaranties), thereby violating the "unlawful" prong of § 17200. Podolsky v First Healthcare Corp. (1996, 2nd Dist) 50 Cal App 4th 632, 58 Cal Rptr 2d 89
The district court was instructed to remand to state court a trademark infringement action over rights to a foot massage device, where each stated claim was supported by at least one state law theory of recovery not dependent upon the Lanham Act; the complaint did not state a claim arising under that act for purposes of removal jurisdiction. A theoretical state law basis in support of the claim that defendant improperly acquired and used proprietary information belonging to plaintiff existed in Civ C §§ 3426-3426.11 (Uniform Trade Secrets Act). As to the count alleging unfair competition, California provided both statutory (Bus. Prof. Code, §§ 17200 et seq.) and common law causes of action for unfair competition. Duncan v Stuetzle (1996, CA9 Cal) 76 F.3d 1480, 96 CDOS 1125, 96 Daily Journal DAR 1921, 37 USPQ2d 1758
Claims under Bus & Prof C §§ 17200 (unfair competition), 17500 et seq. (false and misleading statements) withstood motions to dismiss in an action for unlawful importing, advertising, promoting and using plaintiff's laser system (used to correct vision disorders). Any unlawful business practice, including violations of laws for which there is no direct private right of action, may be redressed by a private action under B & P C § 17200. It is not necessary that the predicate law provide for private civil enforcement. Plaintiff could redress violations of the California Sherman Act (H & Saf C §§ 26000), California Consumer Legal Remedies Act (B & P C § 2234), and certain federal Lanham Act claims. Also, all the allegedly false or misleading statements actionable under federal law were actionable under B & P C §§ 17500 et seq. Summit Tech. v. High-Line Medical Instruments, Co. (1996, CD Cal) 933 F Supp. 918
Complaint dismissed, in an action for breach of contract, patent infringement, appropriation of a trade secrets, and related claims. Plaintiff made no allegations to support a cause of action for unfair competition (B & P C § 17200) but instead alleged defendant continued to use its unequal bargaining power in response to plaintiff's request for information; and this did not support such cause of action. Although the dilution doctrine (B & P C § 14330) relates to the protection of trademarks and applies even where there is no likelihood of confusion of products, plaintiff owned no trademark and did not manufacture products. Punitive damages (CC § 3294) provide a remedy and do not constitute a separate cause of action; plaintiff failed to allege the existence of any obligation not arising from contract, and incorrectly attempted to state a cause of action under CC § 3294, which only provides for damages related to a separate cause of action. Brown v Adidas Int. (1996, SD Cal) 938 F Supp 628
What constitutes "unfair competition" or an "unfair or fraudulent business practice" (B & P C § 17200 et seq.) under any given set of circumstances is a question of fact. That is, the determination of whether a particular business practice is unfair necessarily involves an examination of its impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. However, where there is no dispute or conflict in the evidence, the finding of the trial court that the defendant's conduct is not in violation of § 17200 amounts to a conclusion of law, which is reviewed de novo. Californians for Population Stabilization v Hewlett-Packard Co. (1997, 6th Dist) 58 Cal App 4th 273, 67 Cal Rptr 2d 621
In an action brought on behalf of the general public by a purchaser of contaminated pet food against the pet food distributor under the Unfair Competition Act (B & P C § 17200 et seq.), seeking injunctive relief, restitution, and disgorgement of monies, the trial court properly entered summary judgment in favor of defendant, since defendant's conduct was not unlawful, unfair, or fraudulent within the meaning of B & P C § 17200. First, the unintentional distribution of a defective product is beyond the scope and policy of the "unlawful" prong of § 17200. Second, defendant's conduct did not fit the "unfairness" prong of the statute, which has been used to enjoin deceptive or sharp practices. Although dogs did get sick, defendant's act was accidental and, once discovered, defendant moved quickly to abate the harm. Moreover, there was nothing deceptive or sharp about defendant's behavior; to the contrary, its conduct was exemplary. Finally, defendant's conduct did not satisfy the "fraudulent" prong of the statute, since the public was not likely to be deceived by defendant's unintentional distribution of unmerchantable pet food. Defendant did not mislead the public, because it did nothing to cause the public to accept the contaminated food as uncontaminated. By instituting a speedy and extensive recall effort, defendant did what it could to inform the public of the problem. Klein v Earth Elements, Inc. (1997, 1st Dist) 59 Cal App 4th 965, 69 Cal Rptr 2d 623
Plaintiffs adequately alleged a violation of B & P C §§ 17200 et seq. (unfair competition), where they adequately alleged defendant's activities violated federal Racketeer Influenced and Corrupt Organizations (RICO) law and New York and New Jersey gambling laws. These alleged violations could serve as predicate acts for a violation of B & P C § 17200. Schwartz v Upper Deck Co. (1997, SD Cal) 967 F Supp 405
Unfair competition claims were dismissed. A plaintiff alleging unfair business practices under the unfair competition statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. Since most of plaintiff's causes of action failed to state claims for relief against individual defendants, there was no underlying basis for the unfair competition claims as alleged against these defendants. Moreover, allegations based upon misappropriation of trade secrets failed to identify the fraudulent circumstances under which these trade secrets where disclosed or how defendants' possession or use of source code, game engines and other source materials was wrongful when a development agreement granted to defendants all rights in the ownership and derivative works. Silicon Knights, Inc. v Crystal Dynamics, Inc. (1997, ND Cal) 983 F Supp 1303
In an action for unfair and misleading practices under B & P C §§ 17200 and 17500, brought by several individuals acting as private attorneys general against providers of telephone services and nonprovider phone card retailers, alleging that the defendants had failed to disclose in their advertising and packaging materials that calls made with the cards would be charged by rounding up to the next full minute, the filed rate doctrine (47 USC § 203(a)) did not bar a claim for injunctive relief in that the policies which are furthered by B & P C §§ 17200 and 17500 would be undermined by the filed rate doctrine's presumption of a consumer's omniscience of filed rates and the resulting immunity to common carriers, regardless of any advertising deception used to lure the consumer. However, the plaintiffs' claim for monetary recovery was barred by the filed rate doctrine, in that the net effect of imposing monetary sanctions on the defendants would be to effectuate a rebate, thus resulting in discriminatory rates. This is a matter which is strictly of federal concern under the Federal Communications Act (47 USC § 203(a)). Day v AT & T Corp. (1998, 1st Dist) 63 Cal App 4th 325, 74 Cal Rptr 2d 55
The court affirmed summary judgment for an insurer on an insured's state law claims for breach of contract, bad faith, breach of fiduciary duty, and fraud. The action was brought in California state court after the insurer unilaterally terminated the insured's life insurance. Two weeks before the discovery deadline, plaintiff had sought to amend his complaint for a second time to include a claim of unfair business practices. An August 1992 amendment to B & P C § 17200 had no retroactivity provision; there was nothing to indicate that the Legislature intended a retroactive application; and California courts had suggested that the provision in question was not to be applied retroactively. Under a pre-August 1992 provision, plaintiff failed to allege the required element of ongoing conduct. Solomon v North American Life and Cas. Ins. Co. (1998, CA9 Cal) 151 F.3d 1132
A state law cause of action is preempted by the federal Copyright Act if two elements are present: the rights that a plaintiff asserts under state law must be rights that are equivalent to those protected by the Copyright Act; and the work involved must fall within the subject matter of the Copyright Act as set forth in 17 USCS §§ 102 and 103. A complaint alleging that defendants "have been publishing and placing on the market for sale products bearing the images subject to the copyright ownership of the plaintiff and has thereby been engaging in unfair trade practices and unfair competition against plaintiffs and to plaintiffs' irreparable damage," expressly based the unfair competition claim on rights granted by the Copyright Act, and was preempted. Plaintiff sought to protect his drawings which were "pictorial works" that could be copyrighted. Kodadek v MTV Networks, Inc. (1998, CA9 Cal) 152 F.3d 1209
Plaintiff was potentially entitled to disgorgement, if she proved her claims against credit reporting agencies. B & P C § 17204 permits suits by private individuals acting on behalf of the general public. The laws against unfair business practices were drafted in large part to prevent a wrongdoer from retaining the benefits of illegal acts. That purpose would be frustrated if a party were entitled to retain its profits simply because it is difficult to specify the victim. Andrews v Trans Union Corp., Inc. (1998, CD Cal) 7 F Supp 2d 1056
Plaintiff's cause of action against an insurer for which plaintiff performed plumbing and insurance claim work, for unfair competition, was dismissed with leave to amend. Private individuals cannot seek damages for unfair business practices under B & P C § 17200. Private remedies are limited to equitable relief; and civil penalties are recoverable only by specified public officers (B & P C §§ 17200, 17203-17206). Also, a cause of action for unfair competition under B & P C § 17500 was dismissed with leave to amend. B & P C § 17500 provides only for criminal penalties. Individuals may seek remedy for violations of B & P C § 17500 through B & P C § 17200. However, private remedies are limited to equitable relief; civil penalties are recoverable only by specified public officers (B & P C §§ 17500, 17535). Brown v Allstate Ins. Co. (1998, SD Cal) 17 F Supp 2d 1134
As to infringement of California's statutory right of publicity (CC § 990) and unfair competition and false and misleading advertising in violation of B & P C §§ 17200 and 17500, et seq., the court granted dismissal of the CC § 990 claim because choice of law principles dictated application of the law of Great Britain; denied dismissal as to false endorsement and false origin because likelihood of confusion was a question of fact; noted that plaintiffs sufficiently alleged that their mark had acquired secondary meaning as a source of charitable activities of Diana, Princess of Wales; denied dismissal of false advertising claims; but granted defendants' motion to strike language in the complaint referring to them as "vultures feeding on the dead." Preliminary injunction was denied because plaintiffs failed to establish a likelihood of success on the merits with respect to their false origin and false endorsement, trademark dilution, and false advertising claims. Plaintiffs failed to demonstrate a fair chance of success with respect to claims that defendants' products and advertising created an appreciable risk of consumer confusion, that asserted service marks acquired secondary meaning for purposes of exclusive use of "Diana, Princess of Wales" and "Diana, Princess of Wales Memorial Fund," or that defendants' advertising was false and misleading. After one defendant had purchased a dress sold by Princess Diana at a charity auction, defendants filed an intent to use trademark application for "Diana, Forever A Princess" and later sought permission to utilize Princess Diana's name and likeness on products and in advertising. Cairns v Franklin Mint Co. (1998, CD Cal) 24 F Supp 2d 1013
In an action for abuse of process and unlawful business practice brought by California residents against Virginia banks after default judgments for credit card debts brought in Virginia, the trial court improperly granted summary judgment to defendants. The Virginia courts did not have personal jurisdiction over the California residents, and thus the default judgment was void. Plaintiffs were merely unsophisticated consumers who responded to credit card solicitation, used the card, and made payments on the card. In so doing, they did not "deliberately affiliate" themselves with Virginia in any meaningful sense, nor would they have reasonably foreseen the need to go there to defend themselves in any dispute arising from the credit agreement. Viewed in the light most favorable to plaintiffs' abuse of process claim, the record raised triable issues of fact concerning defendants' knowledge and intent which could not be resolved on a motion for summary judgment. Yu v Signet Bank/Virginia (1999, 1st Dist) 69 Cal App 4th 1377, 82 Cal Rptr 2d 304
With respect to a class action against several banks in which plaintiffs alleged that the failure to disclose the "inflated" charges by defendants constituted (1) unfair and deceptive business practices under B & P C § 17200, (2) unjust enrichment; (3) breach of fiduciary duty; (4) conversion; and (5) negligence, the federal Real Estate Settlement Procedures Act (RESPA; 12 USCS §§ 2601 et seq.) and Regulation X did not expressly preempt private rights of action under state laws for violations of their provisions. Private state causes of action are not inconsistent with the federal disclosure requirements but, rather, are complementary to the federal requirements and in fact will promote full compliance with the disclosure law enacted by Congress. Allowing borrowers to sue for unlawful disclosures or omissions would not interfere in any way with the operation of the federal law, and there is no conflict between RESPA and private state law causes of action. Thus the trial court did not err when it sustained a demurrer to the extent that it alleged that plaintiffs' state law claims were preempted by RESPA and Regulation X. Washington Mutual Bank v Superior Court (1999, 2nd Dist) 75 Cal App 4th 773, 786, 89 Cal Rptr 2d 560
Consumers were not entitled to a preliminary injunction against a manufacturer because the consumers failed to show that a recall and rebate scheme for defective dishwashers that the manufacturer negotiated with the federal Consumer Protection Safety Commission was unlawful, or that the public faced a strong possibility of irreparable injury. Churchill Village, L.L.C. v GE (2000, ND Cal) 169 F. Supp. 2d 1119; 2000 U.S. Dist. LEXIS 7505
Claim brought under B & P C § 17200, predicated on the fact that removal of manufacturer identification codes or knowing possession of products without those codes is a violation of Pen C § 537e, alleged an unfair business practice; thus, defendants' motion to dismiss was denied. Sebastian Int'l, Inc. v Russolillo (2000, CD Cal) 186 F Supp 2d 1055
In a class action brought against a credit card company alleging violations of B & P C § 17200 in which plaintiffs sought a public injunction and disgorgement of funds, an arbitration clause contained in the credit card agreement was enforceable and all of plaintiffs' claims were subject to arbitration under the Federal Arbitration Act, 9 U.S.C.S. § 1 et seq. Arriaga v Cross Country Bank (2001, SD Cal) 163 F Supp 2d 1189
Defendant was not entitled to remove an action to federal court because plaintiff's state law claims were not within the Securities Exchange Act of 1934's exclusive jurisdiction provision, the violation of rules of the National Association of Securities Dealers was not essential to liability under the state claims, and the Securities Exchange Act did not provide a private right of action; however, plaintiff was not entitled to recovery of costs due to its failure to file a timely motion for remand. Roskind v Morgan Stanley Dean Witter & Co. (2001, ND Cal) 165 F. Supp. 2d 1059; 2001 U.S. Dist. LEXIS 4528; Fed. Sec. L. Rep. (CCH) P91, 411
Under California's Unfair Competition Law, individuals asserting representative claims against debtors on behalf of the general public, acting as private attorneys general, qualified as "creditors" of estate. In re First Alliance Mortgage Co. (2001, CD Cal) 269 BR 428
In a class action alleging that a federal savings and loan's practice of charging preclosing interest on home loans was unlawful, state law claims under CC § 2948.5, the Consumers Legal Remedies Act (CC §§ 1750 et seq.) and the Unfair Practices Act (B & P C § 17200 et seq.) were preempted by the Home Owners' Loan Act (12 U.S.C. §§ 1461 et seq.) and the act's implementing regulations. In addition, § 2948.5 did not prohibit a lender from charging interest on a home loan prior to close of escrow in those instances where the lender deposited the loan proceeds into escrow by wire or electronic transfer. The word "cash," as used in § 2948.5, included a wire or electronic transfer because such transfers were the functional equivalent of cash. Washington Mutual Bank v Superior Court (2002, 2nd Dist) 95 Cal App 4th 606, 115 Cal Rptr 2d 765
A bank's cardholder agreement: (1) was unconscionable both procedurally and substantively, (2) violated fundamental notions of fairness, (3) violated public policy as set forth in B & P C §§ 17200 et seq., and (4) was unenforceable, to the extent that it prohibited class treatment of small individual claims. Szetela v Discover Bank (2002, 4th Dist) 97 Cal App 4th 1094, 118 Cal Rptr 2d 862
Where an insurer challenged a trial court's class certification order, the court of appeal found that in order to establish liability for a nondisclosure under either the California's Unfair Competition Law, B & P C §§ 17200 et seq., or the Consumer Legal Remedies Act, CC §§ 1750 et seq., a plaintiff need not present individual proof that each class member relied on particular representations made by the insurer or its agents. Massachusetts Mutual Life Ins. Co. v Superior Court (2002, 4th Dist) 97 Cal App 4th 1282, 119 Cal Rptr 2d 190
A lender's practice of charging delinquent borrowers with the actual cost of performing property inspections does not violate the unfair competition law. Walker v Countrywide Home Loans, Inc. (2002, 2nd Dist) 98 Cal App 4th 1158, 121 Cal Rptr 2d 79
The unfair competition law does not provide for attorney's fees to the prevailing party. Walker v Countrywide Home Loans, Inc. (2002, 2nd Dist) 98 Cal App 4th 1158, 121 Cal Rptr 2d 79
Life insurance company that engaged in deceptive practices in connection with the sale of certain annuity policies 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
Number of violations of B & P C §§ 17200 et seq., the "unfair competition law," is to be determined based upon the number of victims and the number of independent acts. Violations calculated in this manner reasonably relate to the gain or opportunity for gain achieved by the unlawful acts and can fairly be determined through expert testimony, the facts elicited at trial and circumstantial evidence. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Court was permitted to find an individual had violated B & P C § 17200 by engaging in the unauthorized practice of law, a violation of B & P C § 6125. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Insurance company violated B & P C § 17200 through its agents engaging in particular marketing techniques that involved untrue or misleading statements. Sales agents had represented, pursuant to their training, that they were estate planning advisors by virtue of the inter vivos trust product they were offering, rather than salespersons who had the ultimate goal of selling annuity policies to the customers. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Insurance company violated the unfair prong and the fraud prong of B & P C § 17200 by marketing an annuity policy that failed to disclose information regarding the premium charge and failed to describe the full economic consequences of early withdrawal of funds. The insurance company was notified that its annuity policy included language disapproved by the Department of Insurance, thus providing fair notice that sale of the annuity policy in that form could subject the insurance company to civil fines. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Virtually any state, federal or local law can serve as the predicate for an action under B & P C § 17200. People ex rel. Bill Lockyer v Fremont Life Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 508, 128 Cal Rptr 2d 463
Knox-Kleene Health Care Service Plan Act of 1975, H & S C §§ 1340 et seq., did not bar a provider from seeking direct compensation from an insurer on a common law breach of contract theory or under the Unfair Competition Law, B & P C § 17200. Coast Plaza Doctors Hospital v UHP Healthcare (2002, 2nd Dist) 105 Cal App 4th 693, 129 Cal Rptr 2d 650
Plaintiff building owners' insurance policy covering personal injury claims for libel or disparagement did not provide a duty on the part of defendant insurer to defend a lawsuit filed by artists for injunctive relief under B & P C § 17200 for covering the artists' mural on the side of the owners' building, because the policy only covered payment of damages, and the artists' § 17200 claim did not give rise to a duty to defend. Cort v St. Paul Fire & Marine Ins. Cos. (2002, CA9 Cal) 311 F.3d 979
Telecommunications company's suit against competitor for fraud, negligent misrepresentation, and unfair competition under B & P C §§ 17200 et seq., alleging a fraudulent scheme to shift the cost of consumer complaints to the company for resolution, failed on summary judgment under the filed rate doctrine as an impermissible attempt to obtain higher rates. Verizon Del., Inc. v Covad Communs., Co. (2002, ND Cal) 232 F Supp 2d 1066
Court granted television show producer's motion to dismiss claim brought by participant on tv show, arising from the use of her likeness in advertising for the show, and her claim of public disclosure of private facts, arising from picturing in the show the participant kissing a man in the bathroom of a nightclub, because she failed to comply with Fed. R. Civ. P. Rule 15(a) and because the act in question was not done in private. Daly v Viacom, Inc. (2002, ND Cal) 238 F Supp 2d 1118
Plaintiff county's claim against defendant, debtor's parent company, alleging postpetition violations of B & P C § 17200 through the improper use of Chapter 11 plan provisions, was not a police or regulatory action; the bankruptcy court denied the county's motion to remand the claim to the state court, finding that the claim was not removable under 28 U.S.C.S. § 1452(a). California v PG&E Corp. (In re PG&E) (2002, BC ND Cal) 281 BR 1, 2002 Bankr LEXIS 1400
As disgorgement was not a remedy permitted under unfair competition law (UCL), B & P C §§ 17200 et seq., losing bidder did not state cause of action under UCL; but, losing bidder did state cause of action for tort of interference with prospective economic advantage. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
To state a claim under the Unfair Competition Law, one need not plead and prove the element of a tort; instead, one need only show that members of the public are likely to be deceived. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Standing to sue under the Unfair Competition Law is expansive; unfair competition actions can be brought by a public prosecutor or by any person acting for the interests of itself, its members or the general public, B & P C § 17204. Korea Supply Co. v Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 131 Cal Rptr 2d 29, 63 P3d 937
Federal Arbitration Act did not require that a health plan enrollee arbitrate his injunctive claims against health care companies under the Consumer Legal Remedies Act and B & P C § 17200 because he was acting as a private attorney general, prosecuting the claims for the general public, namely, the numerous other plan enrollees in California and because the arbitration system was not capable of monitoring public injunctions. Cruz v PacifiCare Health Systems, Inc. (2003) 30 Cal 4th 303, 133 Cal Rptr 2d 58, 66 P3d 1157
In the absence of evidence that allegedly deceptive practices targeted particularly vulnerable consumers, the standard in cases under the unfair competition law, B & P C §§ 17200 et seq., is that of the ordinary consumer acting reasonably under the circumstances, rather than the least sophisticated consumer. Lavie v Procter & Gamble Co. (2003, 1st Dist) 105 Cal App 4th 496, 129 Cal Rptr 2d 486
Because speech of a corporation, company, and related individuals concerning a product was purely commercial speech, the public interest limitation under CCP § 425.16 applied, and because plaintiffs showed a probability of prevailing, given that they sued for false advertising under the CC § 1770(a)(5) of the Consumer Legal Remedies Act and under the unfair competition law, B & P C §§ 17200 et seq., and there was no evidence to support the product claims, the trial court properly denied the motion of the corporation, individuals, and company to strike the complaint. Consumer Justice Center v Trimedica International, Inc. (2003, 4th Dist) 107 Cal App 4th 595, 132 Cal Rptr 2d 191
Because a former shop manager failed to allege personal participation or conduct that would have made officers and directors liable under B & P C § 17200, the trial court properly sustained the demurrer filed by the officers and directors to the manager's claim. Reynolds v Bement (2003, 2nd Dist) 107 Cal App 4th 738, 132 Cal Rptr 2d 384
Where a consumer stated a cause of action under the Song-Beverly Credit Card Act, a trial court erred in dismissing a cause of action for unfair business practices based on the violation of the Act. Florez v Linens 'N Things, Inc. (2003, 4th Dist) 108 Cal App 4th 447, 133 Cal Rptr 2d 465
Trial court should have granted defendant dental association's special motion to strike under CCP § 425.16 plaintiffs' four causes of action under the Unfair Competition Law, B & P C §§ 17200 et seq. Two of the causes of action sought in significant part to restrict the association's public pronouncements on health effects of dental amalgam, while the other two causes of action, which challenged enforcement of an advisory opinion regarding the removal of amalgam restorations from non-allergic patients should have been dismissed, because there was no evidence of any conduct by the association that might have entitled plaintiffs to prevail on these causes of action. Kids Against Pollution v California Dental Assn. (2003, 1st Dist) 108 Cal App 4th 1003, 134 Cal Rptr 2d 373
Shared appreciation loan made by a trustee bank to a limited partnership for a real estate purchase, which provided for contingent interest of 50 percent of the appreciated value of the property, was not unconscionable under California's unfair competition statute, B & P C §§ 17200 et seq. Jones v Wells Fargo Bank (2003, 2nd Dist) 112 Cal App 4th 1527
Class action was inappropriate under CCP § 382 for an investor's claim of brokers' violation of B & P C § 17200 of the Unfair Competition Law, B & P C §§ 17200 et seq.; there was substantial evidence that individual issues would have predominated over the common ones. Wilens v TD Waterhouse Group, Inc. (2003, 4th Dist) 120 Cal App 4th 746
Given the lack of specific unlawful conduct alleged against the competitor's president, and without reaching the issue of whether the agent's immunity rule definitively applied to B & P C § 17200, the court dismissed that claim with leave to amend. Accuimage Diagnostics Corp. v Terarecon, Inc. (2003, ND Cal) 260 F Supp 2d 941
Because trial verdicts on intellectual property claims were found to result in a miscarriage of justice, allowing a state unfair competition verdict under B & P C § 17200 to stand would also work a miscarriage of justice; hence, defendant's Fed. R. Civ. P., Rule 50(a) motion for a new trial was granted as to the state unfair competition verdict. Computer Access Tech. Corp. v Catalyst Enters., Inc. (2003, ND Cal) 273 F Supp 2d 1063
Magistrate declined to dismiss a claim under B & P C § 17200 of the California Unfair Competition Law solely on the basis that it was brought as a representative claim, as defendants' due process concerns could be addressed by the exercise of equitable discretion to provide due process protections. Stokes v Saga Int'l Holidays, Ltd. (2003, DC Mass) 218 FRD 6, 2003 US Dist LEXIS 18706, 9 BNA WH Cas 2d 187
Where plaintiffs' action under § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a) was dismissed based upon a ruling in the matter issued by the United States Supreme Court, that found that defendants' acts were not misleading, plaintiffs' remaining claims for unfair competition under B & P C §§ 17200, 17500 were also not actionable because the state law claims were congruent to the Lanham Act claim and required similar findings of misconduct. Twentieth Century Fox Film Corp. v Dastar Corp. (2003, CD Cal) 2003 US Dist LEXIS 21194, 68 USPQ2d 1536
Residents living close to a quarry argued that the quarry's owners had expanded the quarry and operated it unlawfully; they sought class certification for their action brought pursuant to B & P C §§ 17200, et seq. Nevertheless, the trial court properly refused to certify the class as the fact that a remedy was available to the class that was not available to individuals was not sufficient reason for class certification; and blasting and noise levels varied infinitely for the residents, depriving the residents of commonality. Frieman v San Rafael Rock Quarry, Inc. (2004, 1st Dist) 116 Cal App 4th 29
An arbitration agreement's provision requiring the parties to bear their own attorney's fees was severable and did not preclude enforcement of arbitration clause as to plaintiff consumers' claims under B & P C §§ 17200 et seq. and §§ 17500 et seq., the Truth in Lending Act, 15 U.S.C.S. §§ 1601 et seq., and the California Consumers Legal Remedies Act, CC §§ 1750 et seq.; the original credit card agreement had a severability clause. >Stuart v Household Retail Servs. (2000, CD Cal) 2000 US Dist LEXIS 22509
Disabled insured could maintain a cause of action under B & P C § 17200 against insurer for violating Ins C § 10144 by charging him a discriminatory premium that was neither actuarially sound nor based on reasonably anticipated experience. Chabner v United of Omaha Life Ins. Co. (2000, CA9 Cal) 225 F.3d 1042; 2000 U.S. App. LEXIS 22770; 2000 Cal. Daily Op. Service 7542; 2000 Daily Journal DAR 9995; 10 Am. Disabilities Cas. (BNA) 1705
Insured lacked standing in federal court to bring an unfair competition claim against insurance company, since policies had been paid to their limits and insured did not face any concrete possibility of future injury; however, the standing requirements for such a claim were less stringent in state court. Hamelin v Allstate Ins. Co. (2002, CD Cal) 2002 U.S. Dist. LEXIS 5093
Consumers' claim against the consumer reporting agency for unfair competition stated a claim upon which relief could be granted because disgorgement of profits was an available remedy in class actions. In re Trans Union Corp. Privacy Litig. (2002, ND Ill) 2002 US Dist LEXIS 17209
Securities Litigation Uniform Standards Act of 1998, 15 U.S.C.S. §§ 77p, 78bb, preempted a purchaser's state law unfair competition claim that defendants' analysts issued unfair and/or deceptive company ratings in research reports which affected the price of stocks, and remand to state court was not warranted. Feitelberg v Merrill Lynch & Co. (2002, ND Cal) 2002 US Dist LEXIS 25714
In an action by trademark owners against alleged infringers alleging service mark infringement under 15 U.S.C.S. § 1114(1), trademark dilution under 15 U.S.C.S. § 1125(c), false designation of origin, false representation, and federal unfair competition under 15 U.S.C.S. § 1125(a), common law unfair competition and trademark infringement, unfair competition under B & P C § 17200, and dilution under B & P C § 14300, the trademark owners' motion for a preliminary injunction was denied where the trademark owners failed to show a likelihood of success on their trademark infringement claims, as only the proximity of the goods factor weighed in favor of a finding of a likelihood of confusion, the marks were dissimilar, trademark owners' marks were relatively weak, there were different marketing channels, and the purchasers of the trademark owners' goods would most likely be exercising greater care than an average consumer. The trademark owners failed to show a likelihood of success on their trademark dilution claims as, even assuming that the trademark owners' marks were famous, the trademark owners failed to show that the alleged infringers' conduct diluted their marks. Since it was unlikely that the trademark owners would prevail on their trademark infringement claims, it was also unlikely that they would prevail on their false designation of origin, federal unfair competition, and state law claims. The trademark owners failed to demonstrate irreparable injury; the balance of hardships did not tip in their favor, and the public interest did not weigh in favor of a preliminary injunction. Golden West Fin. v WMA Mortg. Servs. (2003, ND Cal) 2003 US Dist LEXIS 4100
In a copyright holder's action against an alleged infringer claiming copyright infringement, false designation of origin in violation of 15 U.S.C.S. § 1125(a), and violation of California's Unfair Competition Law, B & P C §§ 17200 et seq., regarding the copyright holder's song, the copyright holder was entitled to a default judgment against the alleged infringer where the alleged infringer failed to either actively or passively engage in the defense of his case and failed to abide by the terms of the parties' settlement decree, and although the copyright holder could not show any actual damages under 17 U.S.C.S.§ 504(a), the copyright holder was entitled to: statutory damages under 17 U.S.C.S. § 504(c) of twice the amount of royalties paid to the alleged infringer for sales of recordings containing the infringing song, interest under 28 U.S.C.S. § 1961, permanent injunctive relief under 17 U.S.C.S. § 502(a) due to the threat of future infringing activity, and an award of reasonable attorney fees under 17 U.S.C.S. § 505. However, while the copyright holder stated claims adequate to demonstrate that the alleged infringer violated 15 U.S.C.S. § 1125(a) and California Unfair Competition Law, Bus. & Prof. Code §§ 17200 et seq., by passing off the copyright holder's song as his own, there was no support for an award of additional damages or attorney fees under 15 U.S.C.S. § 1117(a) or CCP § 1021.5. Jackson v Sturkie (2003, ND Cal) 2003 US Dist LEXIS 5214
Limited liability company's (LLC) allegation that individual misused the individual's editorial position at Internet directories to promote defendants' business and interfere with plaintiff's business did not justify injunctive relief as the LLC failed to submit sufficient evidence to create a serious question concerning the individual's alleged breach of his alleged duty, nor did the LLC show how the alleged breach damaged the LLC. The LLC submitted no evidence substantiating its claim of "complete elimination" from the appropriate directories. J.K. Harris & Co., LLC v Kassel (2003, ND Cal) 2003 US Dist LEXIS 6022
In a consumer class action brought against defendant car company, alleging, inter alia, violations of B & P C §§ 17200 and 17500, based on an allegedly faulty brake system affecting certain vehicles, which action had been removed to federal court by defendant, plaintiff's ex parte application for remand back to state court was granted because the amount in controversy did not exceed $75,000. Plaintiff did not seek punitive damages, and defendant could not include punitive damages in calculating the amount in controversy simply because plaintiff could seek punitive damages; moreover, the class members' claims could not be aggregated nor could the court look to the cost to defendant to determine the amount in controversy. Ecker v Ford Motor Co. (2002, CD Cal) 2002 US Dist LEXIS 26229
In an action by utility customers against energy producers alleging unfair business practices in California's wholesale energy market, in violation of B & P C §§ 17200 et seq., the utility customers' motions to remand following removal of the action to federal court were denied. Removal under 28 U.S.C.S. § 1441 was proper because the court had original federal jurisdiction pursuant to 16 U.S.C.S. § 825p over the utility customers' claims, as the claims were founded to a degree on the energy producers' conduct in the ancillary services market that was governed by the Independent System Operator tariff, and complete preemption did not exist because the utility customers did not need to show a violation of the Federal Power Act, 16 U.S.C.S. §§ 791a et seq., to prove that the energy producers violated B & P C §§ 17200 et seq., nor did the utility customers' B & P C §§ 17200 et seq. claims depend on the resolution of a federal question. T&E Pastorino Nursery v Duke Energy Trading & Mktg., L.L.C. (2003, SD Cal) 2003 US Dist LEXIS 10234
Trial court properly granted summary judgment pursuant to CCP § 437c to a mortgagee in connection with a mortgagor's claim of a violation of B & P C § 17200; because the mortgagee's payment of a yield spread premium to a mortgage broker was lawful, it could not constitute a basis of a claim under § 17200. Byars v SCME Mortgage Bankers, Inc. (2003, Cal App 4th Dist) 2003 Cal App LEXIS 898, 2003 Daily Journal DAR 6559
While the trial court violated CCP § 437c(g) by failing to state reasons for granting a mortgagee summary judgment on a mortgagor's claim under B & P C § 17200, the error was harmless to the extent that the claim was derivative of the mortgagor's contract cause of action, and the mortgagor failed to raise a triable issue of fact. Byars v SCME Mortgage Bankers, Inc. (2003, Cal App 4th Dist) 2003 Cal App LEXIS 898, 2003 Daily Journal DAR 6559
Payment by lenders of a "dealer reserve," or commission, to automobile dealerships for installment sale contracts between the dealers and car buyers was not an unlawful business practice because it did not constitute a vertical price-fixing agreement or a resale price maintenance agreement; the payment of the commission was not a fraudulent business practice because the law did not require dealers to disclose the commission to consumers; and the claim that consumers paid higher interest rates than they would if no dealer commission existed did not state a cause of action for an unfair business practice. Kunert v Mission Financial Services Corp. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 1023
Given the broad sweep of the California Unfair Competition Law (UCL), B §P C §§ 17200 et seq., as the UCL's prohibition on "unfair" business practices arguably brought within its radius conduct that might otherwise fall outside the strict confines of antitrust law, corporation's counterclaim on that issue would not be dismissed where the corporation claimed that media companies acted monopolistically and in restraint of trade by refusing to license any copyrighted works to third party which kept the corporation and third party from competing effectively in the market. MGM Studios, Inc. v Grokster, Ltd. (2003, CD Cal) 2003 US Dist LEXIS 11329
District court lacked federal question jurisdiction over an individual's private attorney general action brought against an auto maker under B & P C § 17200 where 49 U.S.C.S. § 30103(d) and (e) made clear that state law claims were not completely preempted and the individual's claim that the auto maker failed to make a fuel tank repair kit available free of charge to all affected owners of a certain vehicle was not the functional equivalent of a safety-related recall. Hanan v Ford Motor Co. (2003, ND Cal) 2003 US Dist LEXIS 14038
Individual's motion to remand a claim under B & P C § 17200 due to auto maker's alleged failure to make a fuel tank repair kit available free of charge to all affected owners of a certain vehicle was granted where the administrative costs the auto maker expected to incur in the event of an injunction could not be aggregated for purposes of meeting the amount in controversy requirement and the auto maker had not submitted hourly billing rates, the actual number of hours, or any other evidence establishing that the amount of potential attorney's fees was likely to exceed $ 75,000. Hanan v Ford Motor Co. (2003, ND Cal) 2003 US Dist LEXIS 14038
Store's shopping card did not contain an expiration date; therefore, CC § 1749.5 was inapplicable and summary judgment for the store was appropriate in the customer's complaint that the service fees imposed by the store after 24 months in effect constituted an expiration date. Likewise, the shopping card's terms were not unconscionable, as they were not a surprise, nor did they constitute an adhesion contract, making the grant of the store's demurrer appropriate for this cause of action. Freeman v Wal-Mart Stores, Inc. (2003, Cal App 4th Dist) 2003 Cal App LEXIS 1300
Recruiters' motion for summary judgment was denied because genuine issues of material fact existed as to whether the recruiters were covered by the administrative exemption under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201 et seq., or were production workers entitled to overtime pay under 29 U.S.C.S. § 216 and California law, Lab C § 203 and B & P C § 17200. Johannes v Aerotek, Inc. (2001, CD Cal) 2001 US Dist LEXIS 25409
Attorney and law firm's motion for summary judgment was denied because investors did not need to show privity with regard to their claims under Corp C §§ 25504.1 and 25401 and there was an issue of fact as to when the attorney and law firm were involved in the operation of the company's Ponzi scheme for purposes of liability under B & P C § 17200. Forslund v Rein (2003, CD Cal) 2003 US Dist LEXIS 16832
Bank's motion to dismiss unfair business practices claim in a class action alleging participation in a Ponzi scheme that defrauded investors, brought on behalf of the general public, was denied, where the complaint alleged that the relevant actions constituted unfair, illegal, and fraudulent practices within the meaning of B & P C §§ 17200 et seq. Neilson v Union Bank of Cal., N.A. (2003, CD Cal) 2003 US Dist LEXIS 20017
Recent cases hold that B & P C § 17200 (UCL) authorizes restitution and disgorgement of profits resulting from unfair competition. Therefore, equitable damages that resemble damages at law are not necessarily precluded by the UCL. In re Managed Care Litig. (2003, SD Fla) 2003 US Dist LEXIS 22066
B & P C § 17200 (UCL) actions may exist even when a separate statutory enforcement scheme such as the Knox-Keene Act exists. In re Managed Care Litig. (2003, SD Fla) 2003 US Dist LEXIS 22066
Record company was granted summary judgment on a singer's state law claims of misappropriation of a name and voice for commercial purposes under CC § 3344, common law invasion of privacy, and unfair competition under B & P C §§ 17200 et seq., where the claims actually arose from the record company's use, reproduction, and distribution of a copyrighted sound recording of the singer's voice and its compliance with a license agreement requiring that the singer's name be listed on the song jacket, not from the misappropriation of the singer's voice and name. As a result, the claims were preempted by 17 U.S.C.S. § 301(a). Laws v Sony Music Entm't, Inc. (2003, CD Cal) 2003 US Dist LEXIS 22352
Lessees improperly required lessor-contractors to pay for their own workers' compensation coverage after the parties agreed to be subject to part of the California Workers' Compensation Act, Lab C §§ 3200 et seq., Albillo v Intermodal Container Services, Inc. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 1844
Where corporation failed to plead that it ever owned or had a vested interest in a business out of which it was allegedly defrauded by a communications company; nor was the corporation seeking a return of money or other property that it transferred to the communications company, the remedy of disgorgement of all property, profits, and other income unjustly acquired or earned by the communications company would not restore the status quo and was therefore an inappropriate remedy under B & P C § 17200. L-3 Communs. Corp. v OSI Sys. (2004, SD NY) 2004 US Dist LEXIS 165
Where the tenant claimed that the property manager discriminated against her in refusing to fix the elevator in her apartment, the court held that summary judgment should be denied on the tenant's claim under CC § 54.1, for denial of access, and B & P C § 17200, because there were issues of fact as to the extent of the agency relationship between the property manager and the resident manager. Hurd v Ramona Land Co. (2003, ND Cal) 2003 US Dist LEXIS 24583
California's Unfair Competition Law, B & P C §§ 17200-17210 was preempted under the Employee Retirement Income Security Act of 1974 (ERISA) § 514, 29 U.S.C.S. § 1144, to the extent it sought to give private attorneys general the right to stand in the shoes of ERISA fiduciaries in protecting or administering plan assets. Thompson v Abbott Labs. (In re Pharm. Indus. Average Wholesale Price Litig.) (2004, DC Mass) 2004 US Dist LEXIS 4785
Retail stores' request to dismiss claims for loss of consortium and violation of B & P C §§ 17200 and 17500 as barred by the immunity granted to them under CC § 1714.45 should have been granted because the crux of those allegations were claims for injury or death caused by a product, despite the fact that the injuries for which the husband and wife sought recovery were not physical and the claims were not tort actions. >Harshbarger v Philip Morris, Inc. (2003, ND Cal) 2003 US Dist LEXIS 25023
Retail stores' request to dismiss husband and wife's claims under B & P C §§ 17200 and 17500 as barred by B & P C § 17208 or CCP § 338(a) was granted because action for unfair competition, which was based on claims that the retail stores sold cigarettes to the husband when he was a minor, accrued, at the latest, in 1968, and the complaint contained no specific allegations of negligent and intentional false advertising in violation of B & P C § 17500 in the three or four years prior to the commencement of the action. Harshbarger v Philip Morris, Inc. (2003, ND Cal) 2003 US Dist LEXIS 25023
Motion to dismiss was granted with regard to the unfair competition, B & P C §§ 17200 et seq., and the false advertising, B & P C §§ 17500 et seq., claims against the cigarette manufacturers and retailers because claims against the manufacturers were subject to the preemptive effect of the Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA), as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C.S. §§ 1331 et seq., which required that plaintiffs claims had to be based on events that occurred before 1969 and equitable tolling did not apply because the dangers of cigarettes and the health hazards of smoking and the addictive nature of nicotine were common knowledge. The claims against the retailers were dismissed because they were barred by CC § 1714.45, California's immunity statute. Rodarte v Philip Morris, Inc. (2003, CD Cal) 2003 US Dist LEXIS 25067
Court granted satellite television company partial summary judgment, holding that the limitation of liability provision of an agreement between itself and a rural telecommunications cooperative applied to the cooperative's claim under B & P C § 17200 and barred the remedies the cooperative sought. Nat'l Rural Telcoms. Coop. v DIRECTV, Inc. (2003, CD Cal) 2003 US Dist LEXIS 25373
Even though plaintiffs, including the heirs of the widow of a famous deceased bandleader, had legally recognizable claims (including claims for violations of 15 U.S.C.S. § 1125(a) and B &P C § 17200) against a corporation that owned and operated a traveling orchestra under the bandleader's name, such claims were barred by the doctrine of laches because plaintiffs waited too long to assert them; alternatively, plaintiffs were estopped from enforcing the terms of any trademark that they had licensed to the corporation because plaintiffs had failed to affirmatively supervise and control the corporation's use of the license. As such, the corporation was entitled to summary judgment with respect to all of plaintiffs' claims. Miller v Glenn Miller Prods. (2004, CD Cal) 2004 US Dist LEXIS 8474
Where a retailer could not show that a pamphlet about the retailer that was distributed in front of the retailer's store by a human rights organization and its employee was false, the retailer and the owner could not show a reasonable probability of success on their unfair competition claim against the organization and its employee. Fashion 21 v Coalition for Humane Immigrant Rights of Los Angeles (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 574
Superior Court improperly denied insureds' motion seeking class certification in lawsuit against insurer, which sought declaratory and injunctive relief and asserted a violation of the Unfair Competition Law (UCL), and the Consumers Legal Remedies Act, since the insurer failed to offer a disadvantage to certifying a claim under the Unfair Competition Law, B & P C § 17200 et seq., as a class action. Lebrilla v Farmers Group, Inc. (2004, Cal App 4th Dist) 2004 Cal App LEXIS 1010
Filed rate doctrine applies both to federal antitrust actions and to state law causes of actions relating to rates established by federal agencies; a trade association's B & P C § 17200 unfair competition claim was dismissed because: (1) the association alleged the same facts as the basis for both its unfair competition and its federal antitrust claims and did not allege any independent, unlawful actions as a basis for its unfair competition claim; (2) the federal antitrust claims were barred under the filed rate doctrine because they attempted to collaterally challenge the royalty rates for sound recordings approved or authorized by the United States Librarian of Congress pursuant to the Digital Millennium Copyright Act of 1998 and the Small Webcaster Settlement Act of 2002, codified at 17 U.S.C.S. § 114; and (3) the state claim could properly be dismissed for the same reasons that the federal claims failed, that is, it was barred under the filed rate doctrine. Webcaster Alliance, Inc. v Recording Indus. Ass'n of Am., Inc. (2004, ND Cal) 2004 US Dist LEXIS 11993
Trial court did not abuse its discretion in certifying a class concerning consumers' action against drug companies and corporations for alleged anti-competitive actions; the court found that (1) the trial court properly concluded that there were substantial issues of law and fact common to all of the proposed class members because (a) determining whether agreements among the companies and corporations violated the Cartwright Act, B & P C §§ 16720 et seq., the Unfair Competition Act, B & P C §§ 17200 et seq., and the common law required the resolution of potentially complex issues that did not vary among individual class members, (b) the nature of the agreements raised identical factual and legal issues as to every member of the class, and (c) there was substantial evidence to support the finding that the impact of the agreements on the class as a whole was subject to common proof at trial, given that the expert's testimony on this issue was based on relevant, probative facts, and (2) the trial court acted within its discretion in determining that the issues that could be jointly tried, when compared with those requiring separate adjudication, were sufficiently numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. In re Cipro Cases I & II (2004, Cal App 4th Dist) 2004 Cal App LEXIS 1286
Employee's state law claims were improperly dismissed on the ground that they were preempted by § 301 of the Labor Management Relations Act, 29 U.S.C.S. § 185(a); the employee's claims that the employer's method of calculating bonuses wrongfully deducted expenses from the wages of their employees involved independent rights that did not derive from the collective bargaining agreement (CBA). The CBA contained a provision authorizing the payment of bonuses and requiring only that such bonuses could not be used to defeat other wage provisions; however, the employee's claims did not challenge whether an employer could pay a bonus or whether the bonuses paid in the case were used to defeat wages, but, instead, the alleged dispute was based on state laws regulating the extent to which employers could take deductions from such bonus payments. Prachasaisoradej v Ralphs Grocery Co., Inc. (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 1481

9. Jurisdiction
Public utility commission (PUC) did not have jurisdiction over a consumer groups' Unfair Competition Law claims against a telephone company under the Unfair Business Practices Act, B & P C §§ 17200 et seq., and the False Advertising Act, B & P C §§ 17500 et seq., jurisdiction for those claims was solely in the superior court. Greenlining Institute v Public Utilities Com. (2002, 1st Dist) 103 Cal App 4th 1324, 127 Cal Rptr 2d 736
Where an individual brought an action under state law, specifically, California's Unfair Competition Law, B & P C §§ 17200 et seq., acting as a private attorney general to bring an action on behalf of the general public to challenge the marketing by various national brokerage firms of callable certificates of deposit, or callable CDs, the firms removed the action on the basis that the district court had original jurisdiction under 28 U.S.C.S. § 1331; the appellate court found that the district court lacked jurisdiction over the action. The individual denied that his complaint sought a broad ban on the sale of callable CDs, but rather, he claimed that the complaint dealt with the way the instruments in questions were marketed; thus, his complaint did not run afoul of the well-pleaded complaint rule, and his action was remanded to the state court. Lippitt v Raymond James Fin. Servs., Inc. (2003, CA9 Cal) 2003 US App LEXIS 17657
In an action against landlords who violated a rent control ordinance by requiring prospective tenants to sign long-term leases as a condition of tenancy, the Petris Act, CC § 1947.7, did not deprive the trial court of jurisdiction to adjudicate violations of California's Unfair Competition Law, B & P C §§ 17200 et seq. People v Beaumont Investment, Ltd. (2003, Cal App 6th Dist) 2003 Cal App LEXIS 1215
Motion of investor who sued investment banker and others in state court, alleging unfair business practice in violation of B & P C § 17200, to remand to state court following removal to federal district court was granted, because investor expressly disclaimed any harm based upon the purchase or sale of a security; therefore his complaint alleging a state law claim of unfair business practices in violation of B & P C § 17200 was not properly removable under the Securities Litigation Uniform Standards Act, 15 U.S.C.S. § 78bb. Feitelberg v Credit Suisse First Boston LLC (2003, ND Cal) 2003 US Dist LEXIS 19116
Plaintiffs' class action complaint seeking compensation for withheld wages was remanded to state court because defendants did not establish that the claims met the jurisdictional minimum amount in controversy; plaintiffs' B & P C § 17200 claims were based upon individual rights of the class members and not upon a single right in which all members of a common undivided interest (and thus, could not be aggregated), and defendants had not carried their burden of establishing that the relief sought exceeded the jurisdictional minimum measured by one plaintiff's claim. Johnson v Am. Online, Inc. (2002, ND Cal) 2002 US Dist LEXIS 26937
Court is not compelled to automatically divest itself of B & P C § 17200 claims in all cases involving the conduct of health care plans. In re Managed Care Litig. (2003, SD Fla) 2003 US Dist LEXIS 22066
An insurance broker's appeal of an order for remand and denial of its motion to dismiss on federal preemption grounds was dismissed for lack of jurisdiction to review the district court's remand for lack of subject matter jurisdiction of plaintiff insurance company's claim brought under B & P C §§ 17200 et seq. United Investors Life Ins. Co. v Waddell & Reed, Inc. (2004, CA9 Cal) 2004 US App LEXIS 3227, CCH Fed Secur L Rep P 92688
In a customer's unfair competition and false advertising suit against a phone company, the customer could not meet the amount-in-controversy requirement for diversity jurisdiction because the relevant state statutes did not provide for recovery of damages. Vongrabe v Sprint PCS (2004, SD Cal) 2004 US Dist LEXIS 5438
Corporation brought state law claims against a patent holder, alleging violations of the Cartwright Act, B &P C § 16720 et seq.; and the Unfair Competition Law, B &P C § 17200 et seq. Although the trial court never reached the issue of subject matter jurisdiction, the trial court properly sustained the patent holder's demurrer; resolutions of the complex issues involved examination of federal patent law, and the trial court lacked subject matter jurisdiction. Holiday Matinee v Rambus, Inc. (2004, Cal App 6th Dist) 2004 Cal App LEXIS 816
Trade organization was not entitled to remand under 28 U.S.C.S. § 1447 after credit reporting companies' 28 U.S.C.S. § 1441(b) removal of the organization's state court action alleging violation of B & P C § 17200; because the organization's complaint specifically referenced violation of federal antitrust laws for its claim of unlawful business practices, the § 17200 claim required resolution of § 2 of the Sherman Act, 15 U.S.C.S. § 2. Nat'l Credit Reporting Ass'n v Experian Info. Solutions, Inc. (2004, ND Cal) 2004 US Dist LEXIS 17303

10. Insurance
Homeowners whose residences were insured against loss caused by earthquake damage were permitted to allege causes of action against their insurance company for breach of contract, breach of the implied covenant of good faith and fair dealing and unfair, unlawful and/or fraudulent business practices in violation of B & P C § 17200. Insurance company was not permitted to blanket use of January 17, 1994 as the date of loss for purposes of asserting the one-year statute of limitations defense under Ins C § 2071; rather, the limitations period was measured from date when each individual claimant should have reasonably discovered appreciable damage. Kapsimallis v Allstate Ins. Co. (2002, 2nd Dist) 104 Cal App 4th 667, 128 Cal Rptr 2d 358
Lender, by charging a separate fax fee for the transmission of a payoff demand statement by fax, in addition to a fee for the statement as provided by the deed of trust and CC § 2943(e)(6), did not violate both § 2943 and the terms of the deed of trust, and thereby engaged in an unfair, deceptive and unlawful business practice in violation of the Unfair Competition Act, B & P C § 17200; 12 C.F.R. pt. 560.2 preempted Civ C § 2943 with respect to federally chartered savings associations insofar as it restricted loan-servicing fees, as well as the borrower's cause of action challenging the fax transmission fee under § 2943. Lopez v World Saving & Loan Assn. (2003, 1st Dist) 105 Cal App 4th 729, 130 Cal Rptr 2d 42
Pursuant to B & P C § 17200, appellee insurer did not commit an unfair business practice by taking the position that its insured had only $15,000 in liability coverage and omitting information about the policy's $1,000 medical payments provision. The medical payments provision covered an insured person and any resident relative who sustains bodily injury while in, on, or when struck by an auto or trailer; the insured did not sustain any bodily injury, and appellant pedestrian was not an insured or a resident relative of an insured. Mercado v Allstate Ins. Co. (2003, CA9 Cal) 340 F.3d 824
Insured's survivor failed to show that an insurance company violated B & P C §§ 17200 or 17500 by using misleading advertising to persuade consumers to purchase an accidental death and dismemberment policy, but presented enough evidence that the insured's death after surgery was not accidental to avoid a motion for summary judgment on a claim that the company breached the insurance contract by rejecting a claim for accidental death. Heighley v J.C. Penney Life Ins. Co. (2003, CD Cal) 257 F Supp 2d 1241
Summary judgment in insurer's favor was proper on insured's claims for breach of contract and for violation of B & P C § 17200 as the insured did not establish a triable issue on breach of contract and presented no evidence of any unfair or fraudulent business act or practice or any unfair, deceptive, untrue or misleading advertising. Lambros v Metropolitan Life Ins. Co. (2003, Cal App 2nd Dist) 2003 Cal App LEXIS 1210
To forestall an action under the California unfair competition law, B & P C §§ 17200 et seq., another provision must actually "bar" the action or clearly permit the conduct; the United States Court of Appeals for the Ninth Circuit viewed Ins C § 10144 as meeting this standard. Section 10144 specifically permits an insurance company to refuse coverage on the basis of a mental impairment, as long as that denial is based on sound actuarial principles or is related to actual and reasonably anticipated experience; therefore, § 10144 provides a safe harbor for such denials of insurance coverage, thereby defeating a B & P C § 17200 claim based upon unfair business practices. Goldman v Standard Ins. Co. (2003, CA9 Cal) 2003 US App LEXIS 18023
Trial court did not err by sustaining a demurrer filed by a health care services plan in an action brought by healthcare providers to recover for emergency services rendered under B & P C § 17200 because H & S C § 1371.4(e) provided a statutory safe harbor for such conduct. Ochs v PacifiCare of California (2004, Cal App 2nd Dist) 2004 Cal App LEXIS 157
Defendant insurer's decision to provide insurance for the insured's employees, including an allegedly unlicensed individual who drew an arrestee's blood, was not an unfair business practice under B & P C § 17200 despite the prohibitions of Ins C § 253; the decision to insure the insured and its employees did not itself constitute an unfair business practice, and to the extent that the insurer's policy could be read to cover damages prohibited by CCP § 1029.8, California courts would likely hold that any attempt by the insurer to provide coverage for such damages to be ineffective as a matter of law. Revelles v Stout (2004, CA9 Cal) 2004 US App LEXIS 5439
Insurer was entitled to summary adjudication of insured's claim for injunctive relief under B & P C § 17200 and Ins C § 790.03, where the insurer's alleged conduct with respect to the denial of a single claim by a single insured, and was as a matter of law insufficient to support the the injunctive relief sought by the single insured to curb unfair business practices, because the insurer's denial of a single claim, even if found to be fraudulent, could not alone support the finding of an unfair business practice. Crenshaw v Mony Life Ins. Co. (2004, SD Cal) 2004 US Dist LEXIS 9883

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