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AB-1755 Court actions.(1991-1992)

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AB1755:v92#DOCUMENT

Assembly Bill No. 1755
CHAPTER 1196

An act to amend Sections 17204, 17206, and 17207 of the Business and Professions Code, to amend Section 116.231 of, and to add and repeal Section 116.232 of, the Code of Civil Procedure, and to amend Section 11571 of the Health and Safety Code, relating to judicial proceedings.

[ Filed with Secretary of State  October 14, 1991. Approved by Governor  October 14, 1991. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 1755, Speier. Court actions.
(1)  Existing law provides that specified actions to enforce unfair competition laws may be prosecuted by the Attorney General, any district attorney, any city attorney of a city having a population in excess of 750,000, certain city prosecutors, and the City Attorney of San Jose with the consent of the Santa Clara County District Attorney. Existing law provides for civil penalties for the violation of unfair competition laws, and provides that if an action is brought by a city attorney, 1/2 of the penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and 1/2 to the treasurer of the county.
This bill would revise the above provision as respects a city and county to provide that any city attorney of a city and county having a population in excess of 750,000, may prosecute these actions. This bill would provide that a city attorney in any city and county, with the consent of the district attorney of the city and county, may also prosecute these actions. The bill would (a) authorize the county counsel, pursuant to an agreement with the district attorney, to prosecute these actions where the action involves violation of a county ordinance, and (b) require distribution of any civil penalties recovered in an action brought by the county counsel for violation of laws on unfair competition, or of an injunction prohibiting unfair competition, in the same manner prescribed for these actions brought by the district attorney.
This bill would provide that if an action for civil penalties for the violation of unfair competition laws is brought by a city attorney of a city and county, the penalty collected shall be paid to the treasurer of the city and county in which the judgment was entered. The bill would also provide, however, that if such an action is brought by a city attorney of a city and county to enforce laws and regulations regarding buildings used for human habitation and the abatement of nuisance involving controlled substances, 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 1/2 of the penalty, under court supervision and approval, be paid for the purpose of restoring, maintaining, or enhancing the premises which were the subject of the action, and that the balance of the penalty be paid to the treasurer of the city and county.
This bill would also make related and conforming changes.
(2)  Under existing law, an action for the abatement and prevention of nuisance involving controlled substances may be maintained by the district attorney, the city attorney of any incorporated city, or any citizen of the state resident in the county where the nuisance exists.
This bill would, in addition, provide that the city attorney of any city and county may maintain such an action.
(3)  Existing law prohibits any person from filing more than 2 small claims actions in which the amount demanded exceeds $2,500 anywhere in the state in any calendar year.
This bill would authorize the City and County of San Francisco and the County of Stanislaus to participate in a pilot project under which the city and county or county, and specified local entities in those jurisdictions, would be exempt from this limitation. However, the bill would provide for the transfer to municipal court of an action filed by those entities in small claims court in which the amount demanded exceeds $2,500 if the defendant informs the court, as specified, that he or she is represented by a legal counsel. These provisions would be operative until January 1, 1995.
This bill would require the City and County of San Francisco and the County of Stanislaus, if they elect to participate in the pilot project, to conduct a study of the pilot project in their respective jurisdictions, as specified, and to submit a report on the conclusions of this study to the Legislature.

The people of the State of California do enact as follows:


SECTION 1.

 Section 17204 of the Business and Professions Code is amended to read:

17204.
 Actions for injunction pursuant to this chapter may be prosecuted 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.

SEC. 2.

 Section 17206 of the Business and Professions Code is amended to read:

17206.
 (a)  Any person who violates any provision of this chapter 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 or by 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 any court of competent jurisdiction.
(b)  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 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 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.
(c)  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 (b), 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.
(d)  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 which were the subject of the action, and that the balance of the penalty be paid to the treasurer of the city and county.

SEC. 3.

 Section 17207 of the Business and Professions Code is amended to read:

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.

SEC. 4.

 Section 116.231 of the Code of Civil Procedure is amended to read:

116.231.
 (a)  Except as provided in Section 116.232, no person may file more than two small claims actions in which the amount demanded exceeds two thousand five hundred dollars ($2,500), anywhere in the state in any calendar year.
(b)  If the amount demanded in any small claims action exceeds two thousand five hundred dollars ($2,500), the party making the demand shall file a declaration under penalty of perjury attesting to the fact that not more than two small claims actions in which the amount of the demand exceeded two thousand five hundred dollars ($2,500) have been filed by that party in this state within the calendar year.

SEC. 5.

 Section 116.232 is added to the Code of Civil Procedure, to read:

116.232.
 (a)  The boards of supervisors of the City and County San Francisco and the County of Stanislaus may elect to participate in pilot projects within their respective jurisdictions under which the limitation on filings provided in Section 116.231 does not apply to the participating city and county or county respectively, or to any city, school district, county office of education, community college district, or local district within those jurisdictions. It is the intent of the Legislature that this additional authority shall constitute a pilot project to determine the efficacy of use by public entities of the small claims courts for actions on claims exceeding two thousand five hundred dollars ($2,500).
(b)  If any small claims action is filed by the City and County of San Francisco or the County of Stanislaus, pursuant to subdivision (a), and the defendant informs the court either in advance of the hearing by written notice or at the time of the hearing, that he or she is represented in the action by legal counsel, the action shall be transferred to the municipal court.
(c)  This section shall be repealed on January 1, 1995, unless a later enacted statute, which is enacted before that date, deletes or extends that date.

SEC. 6.

 If the City and County of San Francisco or the County of Stanislaus elects to participate in the pilot project specified in Section 116.232 of the Code of Civil Procedure, the participating city and county or county shall conduct a study in its respective jurisdiction to evaluate the use of small claims filings by public entities pursuant to the additional authority provided by Section 116.232 of the Code of Civil Procedure for claims in excess of two thousand five hundred dollars ($2,500). The study shall determine if this additional authority results in (1) an increase of 20 percent or more in collected revenue and (2) average cost savings of five hundred dollars ($500) or more per case filed and processed in the small claims court, when compared with the use of the municipal court for these filings.
Each study shall be conducted in consultation with each city, school district, county office of education, community college district, and local district within the participating jurisdiction that utilizes the authority provided by Section 116.232 of the Code of Civil Procedure, small claims advisors, the clerks of the municipal courts, and other appropriate representatives within the participating jurisdiction. The studies shall include all of the following:
(a)  The number of small claims actions in excess of two thousand five hundred dollars ($2,500) filed by the participating jurisdiction, and cities, school districts, county offices of education, community college districts, and local districts within those jurisdictions.
(b)  The number of defendants in those actions who ask for transfer from small claims court to municipal court pursuant to subdivision (b) of Section 116.232 of the Code of Civil Procedure.
(c)  The number of judgment awards in excess of two thousand five hundred dollars ($2,500) resulting from small claims actions specified in subdivision (a).
(d)  The difference in cost to the City and County of San Francisco or the County of Stanislaus to file an action in excess of two thousand five hundred dollars ($2,500) in small claims court, based on an assumed average cost of one thousand dollars ($1,000) per case for a municipal court filing and, utilizing that assumption, the amount of money saved by the City and County of San Francisco or the County of Stanislaus by filing these actions in small claims court.
(e)  The types of small claims actions filed pursuant to the authority provided in Section 116.232 of the Code of Civil Procedure.
(f)  The impact that the number of filings added to the calendar of the small claims court pursuant to the authority provided in Section 116.232 of the Code of Civil Procedure, and whether those filings affect access to the small claims court by private citizens.
(g)  The impact that the number of actions filed in small claims court pursuant to the authority provided in Section 116.232 of the Code of Civil Procedure would have upon the municipal court calendar if those actions had been filed in municipal court, and whether those filings affect efficient resolution of claims involving private citizens.
Each city and county or the county participating in the pilot project shall each submit a report on the conclusions of its study to the Judiciary Committee of the Assembly and the Judiciary Committee of the Senate. If the studies determine, in accordance with the methodology specified in this section, that the authority provided in Section 116.232 of the Code of Civil Procedure has resulted in an increase of 20 percent or more in small claims filings by the affected public entities and an average cost savings per case of five hundred dollars ($500) or more, when compared with the use of the municipal court for these filings, the pilot project shall be considered a success.

SEC. 7.

 Section 11571 of the Health and Safety Code is amended to read:

11571.
 Whenever there is reason to believe that such a nuisance is kept, maintained or exists in any county, the district attorney of the county, in the name of the people, may, or the city attorney of any incorporated city or of any city and county, or any citizen of the state resident in the county, in his or her own name, may, maintain an action to abate and prevent the nuisance and perpetually to enjoin the person conducting or maintaining it, and the owner, lessee, or agent of the building or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting the nuisance.