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Text
of B&P 17200
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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