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BUSINESS & PROFESSIONS CODE

Division 7 General Business Regulations

§ 17535.5. Penalty for violating injunction; Proceedings; Disposition of proceeds

(a) Any person who intentionally violates any injunction issued pursuant to Section 17535 shall be liable for a civil penalty not to exceed six thousand dollars ($6,000) for each violation. Where the conduct constituting a violation is of a continuing nature, each day of such conduct is a separate and distinct violation. In determining the amount of the civil penalty, the court shall consider all relevant circumstances, including, but not limited to, the extent of harm caused by the conduct constituting a violation, the nature and persistence of such conduct, the length of time over which the conduct occurred, the assets, liabilities and net worth of the person, whether corporate or individual, and any corrective action taken by the defendant.

(b) The civil penalty prescribed by this section shall be assessed and recovered in a civil action brought in any county in which the violation occurs or where the injunction was issued in the name of the people of the State of California by the Attorney General or by any district attorney, county counsel, or city attorney in any court of competent jurisdiction within his jurisdiction without regard to the county from which the original injunction was issued. An action brought pursuant to this section to recover such civil penalties shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law.

(c) If such an action is brought by the Attorney General, one-half of the penalty collected pursuant to this section shall be paid to the treasurer of the county in which the judgment was entered, and one-half to the State Treasurer. If brought by a district attorney or county counsel, the entire amount of the penalty collected shall be paid to the treasurer of the county in which the judgment is entered. If brought by a city attorney or city prosecutor, one-half of the penalty shall be paid to the treasurer of the county in which the judgment was entered and one-half to the city.

(d) If the action is brought at the request of a board within the Department of Consumer Affairs or a local consumer affairs agency, the court shall determine the reasonable expenses incurred by the board or local agency in the investigation and prosecution of the action.

Before any penalty collected is paid out pursuant to subdivision (c), the amount of such reasonable expenses incurred by the board shall be paid to the State Treasurer for deposit in the special fund of the board described in Section 205. If the board has no such special fund, the moneys shall be paid to the State Treasurer. The amount of such reasonable expenses incurred by a local consumer affairs agency shall be paid to the general fund of the municipality or county which funds the local agency.


Added Stats 1973 ch 1042 § 1. Amended Stats 1974 ch 712 § 1; Stats 1979 ch 897 § 5.

ANNOTATIONS

Amendments:

1974 Amendment:
(1) Added "the assets, liabilities and net worth of the person, whether corporate or individual," in the third sentence of subd (a); (2) added "in any county in which the violation occurs or where the injunction was issued" and "within his jurisdiction without regard to the county from which the original injunction was issued" in the first sentence of subd (b); and (3) substituted "is" for "was" in the second sentence of subd (c).

1979 Amendment:
Added subd (d).
Cross References:
Penalty for violation of injunction prohibiting unfair competition: B & P C § 17207

NOTES OF DECISIONS

1. Standard of Review

2. Amount of Restitution

1. Standard of Review
An action against a seller of discount casino and shopping coupons charging him, first, with misrepresentations and nondisclosures (Bus. & Prof. Code, § 17500), second, with unfair competition (Bus. & Prof. Code, § 17200) with respect to the sale of casino coupons, third, with violation of a preliminary injunction (Bus. & Prof. Code, § 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

2. Amount of Restitution
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 to be 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 $2,500 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

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