News Intelligence Analysis

 

 

As of 2003:

 

California

BUSINESS AND PROFESSIONS CODE
SECTION 17200-17210

 



17200.  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.




17201.  As used in this chapter, the term person shall mean and
include natural persons, corporations, firms, partnerships, joint
stock companies, associations and other organizations of persons.



17201.5.  As used in this chapter:
   (a) "Board within the Department of Consumer Affairs" includes any
commission, bureau, division, or other similarly constituted agency
within the Department of Consumer Affairs.
   (b) "Local consumer affairs agency" means and includes any city or
county body which primarily provides consumer protection services.



17202.  Notwithstanding Section 3369 of the Civil Code, specific or
preventive relief may be granted to enforce a penalty, forfeiture, or
penal law in a case of unfair competition.



17203.  Any person who engages, has engaged, or proposes to engage
in unfair competition may be enjoined in any court of competent
jurisdiction. The court may make such orders or judgments, including
the appointment of a receiver, as may be necessary to prevent the use
or employment by any person of any practice which constitutes unfair
competition, as defined in this chapter, or as may be necessary to
restore to any person in interest any money or property, real or
personal, which may have been acquired by means of such unfair
competition.


17204.  Actions for any relief pursuant to this chapter shall be
prosecuted exclusively in a court of competent jurisdiction by the
Attorney General or any district attorney or by any county counsel
authorized by agreement with the district attorney in actions
involving violation of a county ordinance, or any city attorney of a
city, or city and county, having a population in excess of 750,000,
and, with the consent of the district attorney, by a city prosecutor
in any city having a full-time city prosecutor or, with the consent
of the district attorney, by a city attorney in any city and county
in the name of the people of the State of California upon their own
complaint or upon the complaint of any board, officer, person,
corporation or association or by any person acting for the interests
of itself, its members or the general public.



17204.5.  In addition to the persons authorized to bring an action
pursuant to Section 17204, the City Attorney of the City of San Jose,
with the annual consent of the Santa Clara County District Attorney,
is authorized to prosecute those actions.
   This section shall remain in effect until such time as the
population of the City of San Jose exceeds 750,000, as determined by
the Population Research Unit of the Department of Finance, and at
that time shall be repealed.


17205.  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.


17206.  (a) Any person who engages, has engaged, or proposes to
engage in unfair competition shall be liable for a civil penalty not
to exceed two thousand five hundred dollars ($2,500) for each
violation, which shall be assessed and recovered in a civil action
brought in the name of the people of the State of California by the
Attorney General, by any district attorney, by any county counsel
authorized by agreement with the district attorney in actions
involving violation of a county ordinance, by any city attorney of a
city, or city and county, having a population in excess of 750,000,
with the consent of the district attorney, by a city prosecutor in
any city having a full-time city prosecutor, or, with the consent of
the district attorney, by a city attorney in any city and county, in
any court of competent jurisdiction.
   (b) The court shall impose a civil penalty for each violation of
this chapter.  In assessing the amount of the civil penalty, the
court shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the following:  the nature and seriousness of the
misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred,
the willfulness of the defendant's misconduct, and the defendant's
assets, liabilities, and net worth.
   (c) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the State General
Fund.  If the action is brought by a district attorney or county
counsel, the penalty collected shall be paid to the treasurer of the
county in which the judgment was entered.  Except as provided in
subdivision (d), if the action is brought by a city attorney or city
prosecutor, one-half of the penalty collected shall be paid to the
treasurer of the city in which the judgment was entered, and one-half
to the treasurer of the county in which the judgment was entered.
   (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 any 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 any reasonable expenses incurred by a local consumer
affairs agency shall be paid to the general fund of the municipality
or county that funds the local agency.
   (e) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered.  However, if the action is brought by a city attorney of a
city and county for the purposes of civil enforcement pursuant to
Section 17980 of the Health and Safety Code or Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, either the penalty collected shall be paid entirely to
the treasurer of the city and county in which the judgment was
entered or, upon the request of the city attorney, the court may
order that up to one-half of the penalty, under court supervision and
approval, be paid for the purpose of restoring, maintaining, or
enhancing the premises that were the subject of the action, and that
the balance of the penalty be paid to the treasurer of the city and
county.


17206.1.  (a) In addition to any liability for a civil penalty
pursuant to Section 17206, any person who violates this chapter, and
the act or acts of unfair competition are perpetrated against one or
more senior citizens or disabled persons, may be liable for a civil
penalty not to exceed two thousand five hundred dollars ($2,500) for
each violation, which may be assessed and recovered in a civil action
as prescribed in Section 17206.
   Subject to subdivision (d), any civil penalty shall be paid as
prescribed by subdivisions (b) and (c) of Section 17206.
   (b) As used in this section, the following terms have the
following meanings:
   (1) "Senior citizen" means a person who is 65 years of age or
older.
   (2) "Disabled person" means any person who has a physical or
mental impairment which substantially limits one or more major life
activities.
   (A) As used in this subdivision, "physical or mental impairment"
means any of the following:
   (i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss substantially affecting one or more
of the following body systems:  neurological; muscoloskeletal;
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and
lymphatic; skin; or endocrine.
   (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.  The term "physical or mental
impairment" includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech and hearing impairment,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, and emotional
illness.
   (B) "Major life activities" means functions such as caring for one'
s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
   (c) In determining whether to impose a civil penalty pursuant to
subdivision (a) and the amount thereof, the court shall consider, in
addition to any other appropriate factors, the extent to which one or
more of the following factors are present:
   (1) Whether the defendant knew or should have known that his or
her conduct was directed to one or more senior citizens or disabled
persons.
   (2) Whether the defendant's conduct caused one or more senior
citizens or disabled persons to suffer:  loss or encumbrance of a
primary residence, principal employment, or source of income;
substantial loss of property set aside for retirement, or for
personal or family care and maintenance; or substantial loss of
payments received under a pension or retirement plan or a government
benefits program, or assets essential to the health or welfare of the
senior citizen or disabled person.
   (3) Whether one or more senior citizens or disabled persons are
substantially more vulnerable than other members of the public to the
defendant's conduct because of age, poor health or infirmity,
impaired understanding, restricted mobility, or disability, and
actually suffered substantial physical, emotional, or economic damage
resulting from the defendant's conduct.
   (d) Any court of competent jurisdiction hearing an action pursuant
to this section may make orders and judgments as may be necessary to
restore to any senior citizen or disabled person any money or
property, real or personal, which may have been acquired by means of
a violation of this chapter.  Restitution ordered pursuant to this
subdivision shall be given priority over recovery of any civil
penalty designated by the court as imposed pursuant to subdivision
(a), but shall not be given priority over any civil penalty imposed
pursuant to subdivision (a) of Section 17206.  If the court
determines that full restitution cannot be made to those senior
citizens or disabled persons, either at the time of judgment or by a
future date determined by the court, then restitution under this
subdivision shall be made on a pro rata basis depending on the amount
of loss.



17206.5.  In addition to the persons authorized to bring an action
pursuant to Section 17206, the City Attorney of the City of San Jose,
with the annual consent of the Santa Clara County District Attorney,
is authorized to prosecute those actions.
   This section shall remain in effect until such time as the
population of the City of San Jose exceeds 750,000, as determined by
the Population Research Unit of the Department of Finance, and at
that time shall be repealed.


17207.  (a) Any person who intentionally violates any injunction
prohibiting unfair competition issued pursuant to Section 17203 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 that 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 the harm caused by the
conduct constituting a violation, the nature and persistence of that
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, any county counsel authorized by agreement
with the district attorney in actions involving violation of a county
ordinance, or any city attorney in any court of competent
jurisdiction within his or her jurisdiction without regard to the
county from which the original injunction was issued.  An action
brought pursuant to this section to recover civil penalties shall
take 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, except that if the
action was brought by a city attorney of a city and county the
entire amount of the penalty collected shall be paid to the treasurer
of the city and county in which the judgment is entered.
   (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 the 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 the 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.



17208.  Any action to enforce any cause of action pursuant to this
chapter shall be commenced within four years after the cause of
action accrued.  No cause of action barred under existing law on the
effective date of this section shall be revived by its enactment.




17209.  If a violation of this chapter is alleged or the application
or construction of this chapter is in issue in any proceeding in the
Supreme Court of California, a state court of appeal, or the
appellate division of a superior court, the person who commenced that
proceeding shall serve notice thereof, including a copy of the
person's brief or petition and brief, on the Attorney General,
directed to the attention of the Consumer Law Section, and on the
district attorney of the county in which the lower court action or
proceeding was originally filed.  The notice, including the brief or
petition and brief, shall be served within three days after the
commencement of the appellate proceeding, provided that the time may
be extended by the Chief Justice or presiding justice or judge for
good cause shown.  No judgment or relief, temporary or permanent,
shall be granted until proof of service of this notice is filed with
the court.


17210.  (a) For purposes of this section, "hotel" means any hotel,
motel, bed and breakfast inn, or other similar transient lodging
establishment, but it does not include any residential hotel as
defined in Section 50519 of the Health and Safety Code.  "Innkeeper"
means the owner or operator of a hotel, or the duly authorized agent
or employee of the owner or operator.
   (b) For purposes of this section, "handbill" means, and is
specifically limited to, any tangible commercial solicitation to
guests of the hotel urging that they patronize any commercial
enterprise.
   (c) Every person (hereinafter "distributor") engages in unfair
competition for purposes of this chapter who deposits, places,
throws, scatters, casts, or otherwise distributes any handbill to any
individual guest rooms in any hotel, including, but not limited to,
placing, throwing, leaving, or attaching any handbill adjacent to,
upon, or underneath any guest room door, doorknob, or guest room
entryway, where either the innkeeper has expressed objection to
handbill distribution, either orally to the distributor or by the
posting of a sign or other notice in a conspicuous place within the
lobby area and at all points of access from the exterior of the
premises to guest room areas indicating that handbill distribution is
prohibited, or the distributor has received written notice pursuant
to subdivision (e) that the innkeeper has expressed objection to the
distribution of handbills to guest rooms in the hotel.
   (d) Every person (hereinafter "contractor") engages in unfair
competition for purposes of this chapter who causes or directs any
other person, firm, business, or entity to distribute, or cause the
distribution of, any handbill to any individual guest rooms in any
hotel in violation of subdivision (c) of this section, if the
contractor has received written notice from the innkeeper objecting
to the distribution of handbills to individual guest rooms in the
hotel.
   (e) Every contractor who causes or directs any distributor to
distribute, or cause the distribution of, any handbills to any
individual guest rooms in any hotel, if the contractor has received
written notice from the innkeeper or from any other contractor or
intermediary pursuant to this subdivision, objecting to the
distribution of handbills to individual guest rooms in the hotel has
failed to provide a written copy of that notice to each distributor
prior to the commencement of distribution of handbills by the
distributor or by any person hired or retained by the distributor for
that purpose, or, within 24 hours following the receipt of the
notice by the contractor if received after the commencement of
distribution, and has failed to instruct and demand any distributor
to not distribute, or to cease the distribution of, the handbills to
individual guest rooms in any hotel for which such a notice has been
received is in violation of this section.
   (f) Any written notice given, or caused to be given, by the
innkeeper pursuant to or required by any provision of this section
shall be deemed to be in full force and effect until such time as the
notice is revoked in writing.
   (g) Nothing in this section shall be deemed to prohibit the
distribution of a handbill to guest rooms in any hotel where the
distribution has been requested or approved in writing by the
innkeeper, or to any individual guest room when the occupant thereof
has affirmatively requested or approved the distribution of the
handbill during the duration of the guest's occupancy.


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