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BUSINESS & PROFESSIONS CODE

Division 7 General Business Regulations

§ 17205. Cumulative penalties

Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state.


Added Stats 1977 ch 299 § 1.

ANNOTATIONS
Collateral References:
Witkin Summary (9th ed) Equity § 93
Law Review Articles:
California consumer class action for fraud; alternative theories and statutes. 4 Southwestern U LR 321

NOTES OF DECISIONS
Lack of express authorization for a district attorney to prosecute violations of the Mobile Home Parks Act does not preclude prosecution of an action pursuant to applicable Business and Professions Code sections for unfair competition. Specific power to prosecute such violations, moreover, exists under B & P C §§ 17204, 17206, authorizing the district attorney to maintain a civil action for either injunctive relief or civil penalties for acts of unfair competition, and B & P C § 12705, providing that remedies and penalties available in an unfair competition action are similar to remedies and penalties available under state laws, unless otherwise expressly provided. Neither the Mobile Homes Parks Act nor other statutes expressly provide that violations of the act may not be prosecuted as acts of unfair competition. People v McKale (1979) 25 Cal 3d 626, 159 Cal Rptr 811, 602 P2d 731
Under Bus. & Prof. Code, § 17206, the imposition of a penalty for each violation of the Cartwright Act is mandatory, even though the actor reasonably relied on "able" counsel. That fact, and the lack of need to deter, are appropriate considerations for setting the amount of the penalty, but not to eliminate it. People v National Association of Realtors (1984, 4th Dist) 155 Cal App 3d 578, 202 Cal Rptr 243, 1984-1 CCH Trade Cases P 66020
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 Bus. & Prof. Code, §§ 17200 (unfair competition), and 17500 (false advertising), in addition to a $150,000 penalty for violation of a preliminary injunction (Bus. & Prof. Code, § 17535.5) and restitution (Bus. & Prof. Code, § 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 Bus. & Prof. Code, §§ 17205 and 17534.5, specifically allow for cumulative remedies, the trial court properly assessed penalties under both Bus. & Prof. Code, §§ 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 (Bus. & Prof. Code, §§ 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
The penalty provisions for violations of Bus. & Prof. Code, §§ 17200 (unfair competition), and 17500 (false advertising), are sufficiently similar to exemplary damages to permit discovery of the defendant's financial condition in appropriate cases; and §§ 17207 and 17535.5 expressly direct the court to consider the liabilities and net worth of the person in determining the amount of the civil penalty. However, in an action against a seller of discount casino and shopping coupons, the trial court did not err in assessing penalties under Bus. & Prof. Code, §§ 17206 and 17536, for violations of §§ 17200 and 17500, respectively, though it did not receive evidence of the seller's personal net worth other than his monthly salary, where evidence of the net sales and profits of the company the seller controlled as its sole operator was introduced. The burden is on the defendant to establish financial inability to pay an exemplary damage award, and the seller failed to assist the trial court by providing requested financial information. People v Toomey (1984, 1st Dist) 157 Cal App 3d 1, 203 Cal Rptr 642
The trial court did not err in holding that, under due process principles, the district attorney's filing of a civil action against plaintiffs did not preclude a subsequent administrative action based on the same facts. Under Bus. & Prof. Code, § 17205 (remedies in unfair business practices statutory scheme as cumulative to remedies or penalties under other laws), not only were the remedies cumulative, but also the relief sought in the administrative action, namely, suspension or revocation of plaintiffs' smog control license and automotive repair registration, was unavailable to the district attorney in the civil action, which was designed to bring to an immediate halt plaintiffs' unlawful business practices (by way of injunctive relief) as well as to penalize plaintiffs for their automotive transgressions (through a monetary civil penalty). The administrative action was entirely remedial in nature, designed to determine plaintiffs' fitness to hold smog control and automotive repair licenses; administrative sanctions sought by the Bureau of Automotive Repair (suspension and/or revocation) were unavailable to the district attorney in the civil action. The administrative and civil actions were two separate legal proceedings involving separate agencies seeking separate but necessary relief. There was nothing fundamentally unfair in an administrative action based on the same facts. Setliff Bros. Service v Bureau of Automotive Repair (1997, 3rd Dist) 53 Cal App 4th 1491, 62 Cal Rptr 2d 25
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 exercised its discretion in fashioning injunctive relief to meet the needs of this particular case, i.e., to prohibit future cutting or timber removal. The injunction did not intrude on the county's right to regulate land use in violation of the separation of powers doctrine. Remedies under the unfair competition statute are cumulative (Bus. & Prof. Code, § 17205), and the trial court was not required to defer to other agencies to address the alleged violations. Hewlett v Squaw Valley Ski Corp. (1997, 3rd Dist) 54 Cal App 4th 499, 63 Cal Rptr 2d 118
The unfair competition law is independent of the Unfair Practices Act and other laws. Its remedies are cumulative to the remedies or penalties available under all other laws of California, but its sanctions are less severe than those of the Unfair Practices Act. Prevailing plaintiffs are generally limited to injunctive relief and restitution; they may not receive damages, much less treble damages, or attorney fees. The law provides for civil penalties, but it contains no criminal provisions. Cel-Tech Communs., Inc. v Los Angeles Cellular Tel. Co. (1999) 20 Cal 4th 163, 83 Cal Rptr 2d 548, 973 P2d 527
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
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. 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
Employer engages in unfair competition when it discriminates on the basis of age; therefore, injunctive relief under the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., was an appropriate remedy since the remedies under the UCL and the California Fair Employment and Housing Act, Cal. Gov't Code § 12900 et seq., were cumulative. 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
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

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