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District Court of Appeal, Third District, California.


Civ. 7566.

Decided: July 21, 1949

Forrest E. Macomber, Stockton, for appellant. Fred N. Howser, Atty. Gen., Clarence A. Linn, Deputy Atty. Gen., for respondetns.

The district attorney of San Joaquin county commenced this civil action in the name of ‘The People of the State of California’ against the Centr-O-Mart, a corporation, and certain individual defendants, seeking to enjoin alleged violations of the Unfair Practices Act, Business and Professions Code, sections 17000–17101. The defendants interposed a demurrer and motion to dismiss the complaint upon the ground that the state was not a proper party plaintiff. The trial court made and entered its order sustaining the demurrer without leave to amend and dismissed the action. Inasmuch as the appealability of such an order was questioned the state caused a nunc pro tunc judgment of dismissal to be entered, and a second timely notice of appeal was filed therefrom. The sole question presented to this court is whether or not the state is authorized to maintain a civil action to restrain alleged violations of the Unfair Practices Act.

It is elementary that a reviewing court has jurisdiction to determine an appeal only if it is predicated upon an appealable order and the notice thereof is timely. Estate of Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250; Gwinn v. Ryan, 33 Cal.2d 436, 202 P.2d 51. The facts shown by the record herein disclose that the order of dismissal was entered by the clerk in the minutes of the trial court on May 4, 1948, and that the first notice of appeal was filed May 21, 1948. Said notice specified that it was from ‘the order granting defendants' motion to dismiss'. It is thus apparent that the notice was filed within the time prescribed by Rule 2(a) of the Rules on appeal and thus confers the requisite jurisdiction upon this court to hear the appeal, if the order appealed from was an appealable order. Section 581d of the Code of Civil Procedre provides in part as follows: ‘* * * All dismissals ordered by the court shall be entered upon the minutes thereof or in the justice's docket, as the case may be, and such orders when so entered shall constitute judgments and be effective for all purposes * * *.’

Since by the plain provision of said statute the order of dismissal constituted a judgment effective for all purposes it is appealable. Gwinn v. Ryan, supra. The first notice of appeal conferred jurisdiction upon this court to hear the appeal, therefore it is immaterial to discuss the question as to whether or not the second notice of appeal from the nunc por tunc judgment conferred such jurisdiction.

The Unfair Practices Act is contained in Division VII, part 2, Chapter 4, sections 17000–17101 of the Business and Professions Code. Section 17070 provides that ‘Any person or trade association may bring an action to enjoin and restrain any violation of this chapter and, in addition thereto, for the recovery of damages.’ Violations of the provisions of the act are made a misdemeanor by section 17100. The word ‘person’ is defined by section 17021 as ‘any person, firm, association, organization, partnership, business trust, company, corporation or municipal or other public corporation.’ Section 17020 provides that ‘The definitions in this article shall be used in construing this chapter.’

Appellants contend that the word ‘person’ appearing in said section 17070 includes the state and that the state was therefore authorized to maintain this civil action for an injunction. In support thereof, reference is made to People v. Black's Food Store, 16 Cal.2d 59, 105 P.2d 361, and People v. Pay Less Drug Store, 25 Cal.2d 108, 153 P.2d 9, wherein the state successfully maintained actions to enjoin violations of the Unfair Practices Act. However, in none of the cases cited by appellants was the question raised as to the right of the state to maintain the action and hence such cases cannot be construed as upholding such right. We have been referred to no case passing upon the precies question of whether the state is a person as that term is used in section 17021, and our own research has revealed none. The decisions of other state courts upon the question are in conflict, See Words & Phrases, Perm. Ed., Person, p. 243, and are of slight assistance particularly in view of the requirement imposed by section 17020 that ‘The definitions in this article shall be used in construing this chapter.’

Thus the question becomes one of determining whether the state is a ‘person’ within the meaning of the terms as used in said section 17021. In this regard appellants contend that since a municipality is included within the definition of ‘person’ as that term is defined in said section the state therefore must be included therein. Appellant further asserts that to conclude otherwise leads to the result that the state cannot enforce its own law while a political subdivision of the state is empowered to do so. Such contention is without merit. The question is not whether the state can enforce its own law, since, as previously noted, it is given the power to prosecute violations of the act as misdemeanors; rather it is, whether the particular course pursued herein is available, that is, whether the state can enforce the act by the injunctive process in a civil proceeding. Analyzing the question in the light of the specific statutory provisions it would seem to follow that the absence of the state among the persons designated by section 17021 necessarily leads to the conclusion that such omission was intentional and that the state is not one of the persons entitled to sue for injunctive relief under section 17021.

Appellants further contend that if authority for the state to maintain this action cannot be found in section 17021 of the Business and Professions Code such authority is contained in section 3369 of the Civil Code. Subdivision 2 thereof provides that ‘Any person performing or proposing to perform an act of unfair competition within this State may be enjoined in any court of competent jurisdiction.’ Subdivision 5 provides that ‘Actions for injunction under this section may be prosecuted by the Attorney General or any district attorney in this State 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.’ Appellants' contention is that violations of the Unfair Practices Act set forth in the complaint come within the category of unfair competition as that phrase is defined in subdivision 2 of section 3369 of the Civil Code, and therefore subdivision 5 thereof authorizes the state to maintain the present action. This contention cannot be sustained. Whether or not violations of the Unfair Practices Act also constitute unfair competition as that phrase is used in section 3369 of the Civil Code is not the question. Section 3369 of the Civil Code merely authorizes actions for injunctions by the state ‘under this section’ and the present case is not an action under section 3369 but is an action to restrain alleged violations of the Unfair Practices Act. Thus, by its very terms, section 3369 does not authorize the state to sue for an injunction under the provisions of the Unfair Practices Act or any other except ‘under this section.’

Since we have concluded that the provisions of section 3369 of the Civil Code do not authorize the maintenance of this action by the state, the respondents' contention that said section is unconstitutional is moot and irrelevant to the decision of this case.

The order appealed from is affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.