PEOPLE v. JAYHILL CORPORATION

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent; JAYHILL CORPORATION et al., Real Parties in Interest.

Civ. 38819.

Decided: January 26, 1972

Evelle J. Younger, Atty. Gen., Herschel T. Elkins and Michael R. Botwin, Deputy Attys. Gen., for petitioner. No appearance for respondent. Frederick P. Furth, and Geoffrey P. Knudsen, Cushing, Cullian, Hancock & Rothert, and Brian P. Burns, San Francisco, for real parties in interest Jayhill Corp., and others.

On November 9, 1970, the People filed a second amended complaint in respondent Superior Court of Los Angeles County, naming real parties in interest as defendants. In brief, the complaint alleged that real parties in interest (hereinafter, defendants) had committed certain wrongs by engaging ‘in a scheme to sell encyclopedias, other publications and related services to members of the public by making false and misleading statements and engaging in other acts of unfair competition.’ In the complaint, the People sought various remedies to redress the alleged wrongs, and, in particular, sought: (1) restitution; (2) exemplary damages for violation of Civil Code section 3369;1 and (3) a civil penalty of $2,500 for each violation of Business and Professions Code section 17536.2 Defendants responded to the People's complaint by filing certain demurrers and motions to strike, on which respondent court ruled, in effect, and among other things, that: (1) the People had not stated a cause of action in restitution; (2) the People had not stated a cause of action for exemplary damages pursuant to Civil Code section 3369; and (3) the People could not recover civil penalties pursuant to Business and Professions Code section 17536 without setting out violations of that code section with particularity. From these rulings, the People petitioned this court for a writ of mandate to compel respondent court to set aside that portion of its order ‘which [prevented] the People from seeking exemplary damages and restitution and which [required] the People to plead each claim for a civil penalty in a separate cause of action. . . .’ We granted an alternative writ, and defendants filed a demurrer and answer to the People's petition.

We are met at the outset with the question of whether we should allow the People a review by way of mandamus. Code of Civil Procedure section 1086 provides that a ‘writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ Typically, a review in the ordinary course of law is by way of an appeal from a final judgment. (Code Civ.Proc. § 904.1, subd. a; see also, Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 185, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.) In the case before us, the People could have pursued their action to a final judgment and then appealed from that judgment. (Jeffers v. Screen Extras Guild, 107 Cal.App.2d 253, 237 P.2d 51.) Instead, the People sought review by way of extraordinary writ, contending that they had neither a speedy3 nor an adequate remedy at law. We agree. While we have no desire to lend support to the creation of a ‘certiorarified mandamus,'4 we believe that review by way of mandate is proper in this case. In Vasquez v. Superior Court, 4 Cal.3d 800, 806–807, 94 Cal.Rptr. 796, 799–800, 484 P.2d 964, 967–968, the California Supreme Court stated: ‘Mather [v. Mather, 5 Cal.2d 617, 618, 55 P.2d 1174] refused to allow piecemeal disposition of a cause, and determines that where, as here, all the causes of action set forth in the complaint have a single object, an appeal will not be permitted from a judgment disposing of only one count of the complaint [footnote omitted]. We conclude, therefore, that since plaintiffs cannot appeal from the order which bars a substantial portion of their cause from being heard on the merits, their petition for a writ of mandate deserves consideration.’ We believe that the rationale of Vasquez applies to the instant case. In addition, we believe that the questions presented by this petition are ‘of such significant legal impact that we feel compelled to intervene.’ (Babb v. Superior Court, 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 185, 479 P.2d 379, 385.) However, while we believe that review by mandamus is proper in this case, we wish to reiterate the admonition of Babb, supra, that absent an extraordinary showing a prerogative writ to review rulings on pleadings is not a proper method of appellate review.

The People contend that respondent court erred in ruling that they did not have a cause of action against defendants in restitution. We cannot agree. The People seek restitution for wrongs which were allegedly perpetrated upon ‘members of the public.’ However, in California, ‘[e]very action must be prosecuted in the name of the real party in interest’ (Code Civ.Proc. § 367) and may not be prosecuted by a stranger to that action. (Chenery v. Palmer, 5 Cal. 132, 134.) In order to distinguish a real party in interest from a stranger, it is helpful to look to the definition of ‘action.’ In Frost v. Witter, 132 Cal. 421, 426, 64 P. 705, 707, the California Supreme Court defined action as follows: “An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to one,'—which is but to say an obligation.' (The emphasis is original.) Hence, the real party in interest to an action as that term is used in Code of Civil Procedure section 367 is the one to whom the obligation is owed. For the People to maintain an action against defendants in restitution, it is necessary that they show that defendants owe to them a restitutory obligation. However, a restitutory obligation is an ‘obligation of a wrongdoer to restore the property of another'5 (Frost v. Witter, supra, at p. 426 64 P. at p. 707), and though the action for restitution has had a tortuous development,6 and though its ‘avowed ethical basis . . . and its indefiniteness makes easy an extension of liability to newly arising situations' (Rest., Restitution, Int. note, pp. 8–9),7 the common law action for restitution still belongs solely to the one to whose detriment an unjust enrichment has been realized. (Rest., Restitution, § 1.)

Therefore, in order for the People to maintain an action against defendants for restitution, they must show that it was they (the People) who suffered the detriment by which defendants were unjustly enriched, and therefore, it is they to whom the restitutory obligation is owed. The People have failed to make this showing. In this regard, the people have made, in effect, three assertions: (1) the People are prosecuting a restitutory obligation owed to certain individuals who were harmed by defendant's alleged wrongful acts;8 (2) The People are prosecuting a restitutory obligation owed to the State of California;9 (3) The People are not prosecuting on behalf of anyone, but are simply seeking a remedy that would deprive defendants of their wrongful gains.10

The People's first assertion cannot be sustained. ‘A private person has not the right or power to use . . . the name of the people for the purpose of obtaining redress for private wrongs.’ (People v. Pacheco, 29 Cal. 210, 214.) If an individual has suffered an injury by any defendant, it is he, and not State of California, who is the real party in interest in the action. (People v. Pacheco, supra, at pp. 213–214.) The Attorney General does not have the power to prosecute the individual's action on the individual's behalf (9 Ops.Atty.Gen., 1, 3) unless expressly authorized by statute. (People v. Haggin, 57 Cal. 579, 587.)11

The People's second assertion is that they are seeking restitution on behalf of the State of California. There is no question but that the State of California has the legal capacity to maintain an action (Gov.Code section 945) whenever the state is the real party in interest (People v. Pacheco, supra, at 214), and the ‘Attorney General, as the chief law enforcement officer of the state, has the authority and power . . . to institute, conduct and maintain all civil actions involving the rights and interests of the state. . . .’ (People v. Birch Securities Co., 86 Cal.App.2d 703, 707, 196 P.2d 143, 146; see also, Cal.Const. Art. V, section 21, and People's Home Savings Bank v. Superior Court, 103 Cal. 27, 32, 36 P. 1015.) However, before the attorney general may institute an action on behalf of the state, he must first demonstrate the state's interest in that action. Here, the People contend that the state's interest is derived both from statutes (Civ.Code § 3369 and Bus. & Prof.Code § 17535)12 and from common law.

Statutes, as a basis interest upon which the state may prosecute an action, may be divided into three groups: First, some statutes directly authorize the attorney general to initiate an action which embodies the particular remedy which he desires. Examples of this type of statute ate found in Business and Professions Code section 17536 (attorney general expressly authorized to recover civil penalties for certain violations of the Business and Professions Code) and Civil Code section 3369 (attorney general expressly authorized to seek injunctions against acts of unfair competition).13 This type of statute, however, lends no support to the People in this case because the People have not alleged any California statute which expressly authorizes the attorney general to initiate an action in the name of the State of California to obtain for itself restitution as a remedy for the types of wrongs herein alleged.14

Second, some statutes provide an action which embodies the particular remedy that attorney general desires, but do not expressly include the attorney general within the class of parties authorized to bring the action; sometimes, though, the courts are able to interpret the statute to include the attorney general within the permissible class. The following are examples of this type of statute: (1) Political Code section 110915 provided that ‘any person’ could bring an action for cancellation of certain voting registrations; in Pierce v. Superior Court, 1 Cal.2d 759, 37 P.2d 453, the court interpreted ‘any person’ to include the attorney general; (2) Business and Professions Code section 17070 provides that ‘any person’ may bring an action to enjoin certain violations of the Business and Professions Code; here too, in People v. Centr-O-Mart, 34 Cal.2d 702, 214 P.2d 378, the court interpreted ‘any person’ to include the attorney general. However, while California's Civil Code section 196216 does provide an action in restitution (the action and remedy sought here by the People), the action lies exclusively in the aggrieved party. In the case before us, the People are simply not the party aggrieved as that term is used in the code.

Third, there are statutes which directly authorize the attorney general to initiate an action in order to redress a certain wrong, but which do not expressly provide for the particular remedy which the attorney general desires. Sometimes, though, the courts will construe language of the statute to allow for the desired remedy. For example, section 205(a) of the Federal Emergency Price Control Act of 1942 (56 Stats. 23, 33; 50 U.S.C.App. section 925 (a)) expressly granted the Administrator of the Office of Price Administration the power to seek an ‘order enjoining’ violation of that act, or to seek an ‘order enforcing compliance’ with the act. The United States Supreme Court interpreted the phrase ‘order enforcing compliance’ to authorize an order granting the government restitution of rents collected in excess of the permissible maximums under that act. (Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; Cf. Securities & Exchange Commission v. Texas Gulf Sulfur Co., 2 Cir., 446 F.2d 1301, 1307.) However, Porter is not analogous to the case before us. In neither of the code sections cited to us (Bus. & Prof. Code § 17535 and Civil Code § 3369) as authority for a statutory action upon which we might properly allow restitution to the state as a remedy is there an enabling clause of the type found in Porter upon which we might properly so order such restitution. Absent such type of enabling clause, for us to append restitution as a remedy to either of the code sections cited would be judicial legislation.

Sometimes, too, where a statutory action does not provide for the remedy desired by the attorney general, and where there is no statutory language possible of being interpreted to provide the desired remedy, the court will allow the remedy sought nonetheless. This is done when: (1) the court is able to interpret the statutory remedies as not being exclusive of the desired remedy; and (2) the court finds that the desired remedy might otherwise be available through a different action arising from the same wrong. For example, Civil Code section 5417 provided: ‘Any person who is refused admission to any place of amusement . . . is entitled to recover . . . his actual damages, and one hundred dollars in addition thereto.’ In Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 180 P.2d 321, the California Supreme Court read that statute (1) to have been manifestly inadequate to redress the injury incurred from its violation and thus not exclusive of remedies that might have been otherwise available from different, independent actions; and (2) since an action for injunctive relief might have otherwise been available exclusive of the statutory action (id., at p. 114, 180 P.2d 321), the court could have properly provided both the remedy prescribed by the statute (damages) and an injunctive remedy not prescribed by the statute. However, in the instant case, even if we were to assume that the statutory actions which provide an injunctive remedy to the attorney general were not exclusive of any restitutory remedies available to the People from other possible actions, no analogy could be drawn to Orloff since the attorney general has shown no other action available to him by which he could obtain the restitutory remedy sought here. In Orloff, the plaintiff had one action by statute (remedy in damages) and one action in equity (remedy in injunction for violation of his personal rights).18 Here, the People allege a statutory action (remedy in injunction), but do not allege an independent action in which restitution would be a proper remedy. Nonetheless, they seek such a remedy, thus attempting to justify the remedy without first showing that they are obligees of a restitutory obligation (action). To allow this would be abolish the distinction between the concepts of ‘action’ and ‘remedy.’ (Frost v. Witter, supra.)

Like statutes, the common law is also recognized as a basis upon which the attorney general may institute actions ‘in the name of and behalf of the people of the state in cases involving directly their rights and interests; and that without any new authority expressly conferred by law.’ (People v. Oakland Water Front Co., 118 Cal. 234, 240, 50 P. 305, 306.) However, the attorney general's common law right to initiate action on behalf of the state is limited to those situations in which the rights and interests of the state are direct (Oakland Water Front, supra), primary and direct (People ex rel. Ryan v. San Diego, 71 Cal.App. 421, 433, 236 P. 377), or present direct, and immediate (People v. Brophy, 49 Cal.App.2d 15, 34, 120 P.2d 946.)19 In the instant case, the attorney general contends that the state's interest in suing in restitution to it for the wrongs alleged is in ‘the enforcement of the State's law, the preservation of order, and the protection of public rights and interests.’ However, while it ‘is true that the state in its governmental capacity has a general interest in seeing that a proper observance is accorded to all of its laws by the people of the state . . . this general interest does not constitute the state a party in interest in every proceeding instituted for the purpose of enforcing said laws or of determining whether they are in all instances complied with.’ (People ex rel. Ryan v. San Diego, supra, 71 Cal.App., p. 433, 236 P., p. 382.) ‘To hold that the Attorney General may intervene on behalf of the state in a lawsuit . . . simply because [he believes] that by the prevention of the performance of a contract between private litigants the burdens of [his office] in the prosecution of violators of the law would be lessened, would lead to absurd results.’ (People v. Brophy, supra, 49 Cal.App.2d p. 35, 120 P.2d p. 957.) The state's interest must be more than contingent. (State ex rel. Attorney General v. Superior Court, 148 Cal. 55, 58, 82 P. 672; see also, People v. Pacheco, supra, 29 Cal. 210.)

In a very early case (1874) quite similar to the one before us, the highest court of the State of New York considered a complaint which had been filed on behalf of the people of that state alleging that certain defendants had defrauded a county of New York of a large sun of money. After first observing that the State of New York was a different legal entity from a county of New York, the court went on to say that ‘[t]he title to and ownership of the money sought to be recovered must determine the right of action, and if the money did not belong to the State, but did belong to some other body having capacity to sue, this action cannot be maintained . . .. The party to maintain an action for a tort or wrong to property must be one whose property rights have been tortiously interfered with or invaded—one who, as trustee, special property man, bailce or general owner, has been pecuniarily damaged. The State cannot, any more than on individual, have a civil action for the recovery of money whether by way of damages for fraud or other wrong, the wrongful conversion of chattels, or for money received by and in the possession of others, except upon proof of title and ownership.’ (People v. Ingersoll, 58 N.Y. 1, 13, 14.) A more recent New York case, State by Lefkowitz v. Parkchester Apts. Co. (1970) 307 N.Y.S.2d 741, 748, 61 Misc.2d 1020, shows a continuing adherence to this rationale.

In light of the foregoing, we hold that the People do not have an action in common law restitution for the wrongs alleged to have been committed upon members of the public. There is no doctrine of parens patriae20 that is yet so broad to vest in the People the rights and interests which are prerequisites in this type of action.

The People's third assertion is that they are not seeking restitution on behalf of any particular party, but, instead, are simply seeking a remedy to deprive defendants of their allegedly wrongful gains. To effectuate this end, the People urge that they should be allowed to prosecute an action to impose a constructive trust upon defendants in the amount of defendants' allegedly wrongful gains. The People, however, again confuse the concepts of action and remedy. “An action is . . . the right or power of prosecuting in a judicial proceeding what is owed to one,'—which is but to say, an obligation' (Frost v. Witter, supra, 132 Cal. p. 426, 64 P., p. 707; emphasis original), and a remedy ‘is simply the means by which the obligation or the corresponding action is effectuated’ (id., p. 426, 64 P., p. 707). As has already been shown, under the facts before us in this case, the People hold no action in restitution, and since a constructive trust is a remedy and not an action (Fleishman v. Blechman, 148 Cal.App.2d 88, 93, 306 P.2d 548; Marcus v. Otis, 168 F.2d 649, 660; see also, Decorative Carpets, Inc. v. State Bd. of Equalization, 58 Cal.2d 252, 256, 23 Cal.Rptr. 589, 373 P.2d 637), the People have shown no obligation upon which they might institute a judicial proceeding in which it might be determined that a constructive trust would be an appropriate remedy.

‘It there were no other remedy for [the alleged wrongs], and public justice and individual rights were likely to suffer for want of a prosecutor capable of pursuing the wrong-doer and redressing the wrong, the courts would struggle hard to find authority for the attorney-general to intervene in the name of the people. But, in the absence of such a necessity, the exercise of high prerogative powers ought not, by a species of judicial legislation, to be committed to the discretion of any individual or body of men. Such a committal of power should be the act of the legislature, who can hedge it about with all necessary safeguards.’ (People v. Ingersoll, supra, 58 N.Y. at p. 17.) We do not believe that there is such a necessity in California. We recognize that the attorney general would like, in effect, to be granted the status of a type of consumer-class-action-representative in all consumer protection actions which he determines to be of enough moment to warrant his intervention. To some degree, this is what the State of New York has effected by statute.21 However, absent such a ‘commital of power [by] . . . the legislature, who can hedge it,’ any such judicial pronouncement to this effect, if made, would not only be contrary to existing Anglo-American common law, but would also divest a defrauded individual of control of his lawsuit, and force upon him a possibly unwanted election of remedies.22 We do not believe that such a drastic step is necessary. In California, the victim of a consumer fraud has various remedies available to him: in his individual capacity, he may either institute an action on his own behalf, or he may join with others like him in a class action (Vasquez v. Superior Court, 4 Cal.3d 800, 94 Cal.Rptr. 794, 484 P.2d 964); in addition, he may enlist the assistance of the attorney general to invoke the existing consumer protection statutes by assigning his interest to the State of California, and we know of nothing which would prevent him from doing so,23 in which case it would be proper for the attorney general to sue as the real party in interest on behalf of the state.24 If these avenues of redress are inadequate, then the consumer must wait until such time, as the Legislature takes further action on his behalf.

The People next contend that respondent court erred in ruling that they did not have a cause of action against defendants for exemplary damages, pursuant to Civil Code section 3369. In opposition to the People's contention, defendants arguc that the statutory remedy provided by section 3369 (injunction) is exclusive of all others and that, in any event, exemplary damages are not available in the absence of a showing of actual damages. In reply, the People argue that the injunctive remedy provided by Civil Code section 3369 is not exclusive of all others and that either actual damages are not necessary in order to obtain exemplary damages, or that actual damages are to be presumed in cases involving statutes that are ‘defined to protect the public.’ Both the People and defendants seem to suggest that if we were to decide that the action provided by section 3369 does not constitute the exclusive action for the wrongs which precipitated the alleged violations, and if we were to decide that the remedies provided by that statutory action were inadequate, we would then be at liberty to legialate new and more effective remedies to section 3369. We have no such power. In Orloff v. Los Angeles Turf Club, supra, 30 Cal.2d 110, 180 P.2d 321, there was involved a statute which provided an action for damages for harm incurred as a reault of individuals being excluded from certain amusement parks. In that case, the court allowed the plaintiff damages and, in addition, an injunction. However, the reason for the court's awarding an injunctive remedy was not because the action under the statute was non-exclusive and the remedies provided by the statute were indequate; the reason that the court awarded an injunctive remedy was because the statutory action was non-exclusive and the plaintiff had another, independent action in equity for the protection of his personal rights in which the remedy of injunction was appropriate.25 Therefore, the court in Orloff was not appending new remedies to an action provided by statute; the court was simply granting a remedy appropriate to an independent action (obligation) in the plaintiff in equity. In the case before us, the People are provided an action by statute (Civil Code § 3369) which provides for a remedy by injunction. We are not free to graft new remedies onto that statute, and since the People have alleged no other ground upon which they possess an independent action in which exemplary damages would be a proper remedy, we must hold that respondent court did not err in ruling that the People did not state a cause of action for exemplary damages pursuant to section 3369. Having made this determination, it is unnecessary for us to meet defendant's contention that exemplary damages do not lie in the absence of a showing of actual damages.

The People next contend that respondent court erred in ruling that they could not recover civil penalties pursuant to Business and Professions Code section 17536 without first pleading each violation of that code section with particularity.26 Specifically, the People petition us to ‘set aside the portion of [respondent court's] order . . . which requires the People to plead each claim for a civil penalty in a separate cause of action . . ..’ In support of their petition, the People argue that Business and Professions Code section 17536 does not create an action, but provides a remedy for the action which arises as a result of a violation of Business and Professions Code section 17500.27 The People argue further that while multiple breaches of section 17500 by one defendant creates multiple penalties under section 17536, multiple breaches of section 17500 by one defendant creates only one violation of section 17500 and therefore only one action; therefore, that each breach of section 17500 by one defendant does not have to be set forth in the complaint as a separate cause of action. We can agree only in part. We agree that section 17536 is remedial, but we do not agree that multiple breaches of section 17500 by one defendant constitute only a single violation of that section. If this were true, then the People would be limited to one $2,500 penalty (one penalty per violation), no matter how many breaches of section 17500 one defendant may have committed.

Therefore, having concluded that each breach of section 17500 represents a separate violation of that statute and therefore a separate action, then under the compulsion of Code of Civil Peocedure section 430(5), the People must set forth in their complaint each violation within a separate paragraph. However, this does not mean that the People must set out the precise names, dates, and places of each violation; these matters are all subject to discovery (Coy v. Superior Court, 58 Cal.2d 210, 23 Cal.Rptr. 393, 373 P.2d 457; Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266), and we believe that Doe-type clauses would suffice to apprise defendants and the court of the nature, source, and extent of the People's action (Roth v. Cottrell, 112 Cal.App.2d 621, 624, 246 P.2d 958; Brunson v. Babb, 145 Cal.App.2d 214, 227, 302 P.2d 647). By this we do not mean that the People would be required to file a complaint with multiple, identical, Doe allegations; we believe it would suffice to set out with particularity the first Doe allegation, and then to allege separate, like paragraphs for each of the remaining Doe allegations. Such a complaint would not be unlike the type of complaint which is found in consumerfraud class litigation. (Vasquez v. Superior Court, 4 Cal.3d 800, 810–811, 94 Cal.Rptr. 796, 484 P.2d 964.)

Accordingly, inasmuch as the People have not pleaded multiple actions in their complaint, the court's order sustaining a demurrer with leave to amend must be upheld.

The People's final contention is that respondent court erred in sustaining demurrers to their complaint because the ‘appropriateness of civil penalties, restitution and exemplary damages cannot be challenged by demurrer since they concern the prayer for relief.’ We agree only in part. The People's contention that the appropriateness of civil penalties (Bus. & Prof.Code § 17536) is not subject to demurrer cannot be sustained. We hold that each of the People's requests for civil penalties constitutes a separate action and under the authority of Code of Civil Procedure section 430(5), the court has the power to sustain a demurrer whenever it appears upon the face of the complaint that ‘several causes of action have [not been] separately stated.’ Neither can we agree with the People's contention that the appropriateness of restitution is not subject to demurrer. We hold that the People did not state an action in themselves in restitution. ‘Thus, if the complaint shows that the plaintiff is not a real party in interest and therefore lacks the right to sue (or standing to sue), a general demurrer lies, even though a cause of action is stated in someone other than plaintiff. [Citations.]’ (Witkin, Cal.Proc. (2d ed.), Pleading, § 814; see also Klopstock v. Superior Court, 17 Cal.2d 13, 18, 108 P.2d 906.)

We must agree, however, with the People's contention that the appropriateness of exemplary damages pursuant to an action brought under authority of Civil Code section 3369 is not subject to demurrer. Whenever an action is otherwise stated, the ‘prayer . . . itself is not a part of the complaint, subject to demurrer, and the fact that the plaintiff has prayed for . . . relief to which he may not be entitled does not affect the sufficiency of his complaint.’ (Moropoulos v. C. H. & O. B. Fuller Co., 186 Cal. 679, 688, 200 P. 601, 606; see also, Witkin, Cal.Proc. (2d ed.), Pleading, § 807.) However, while it was error for respondent court to sustain this demurrer, the error was not prejudicial to the People, for the People's prayer for exemplary damages was also the subject of a sustained motion to strike, and since the People have not made any assignment of error in this regard, the motion to strike must stand.

The alternative writ heretofore issued is discharged, and the peremptory writ is denied.

FOOTNOTES

1.  Civil Code § 3369:‘1. Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, except in a case of nuisance or unfair competition.‘2. Any person performing or proposing to perform an act unfair competition within this State may be enjoined in any court of competent jurisdiction.‘3. As used in this section, unfair competition shall mean and include unlawful, unfair or fraudulent business practice and unfair, untrue or misleading advertising and any act denounced by Business and Professions Code Sections 17500 to 17535, inclusive.‘4. As used in this section, the term person shall mean and include natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.‘5. 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.’

2.  Business & Professions Code § 17536:‘Any person who violates any provision of this chapter, except Section 17530, shall be liable for a civil penalty not to exceed . . . ($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 in any court of competent jurisdiction. If 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 Treasurer. If brought by a district attorney, the entire amount of penalty collected shall be paid to the treasurer of the county in which the judgment was entered.’

3.  While the People do not expand on their allegation of the lack of a speedy remedy at law, we must assume that they do not base their charge solely upon a comparison of the speed of an extraordinary writ with the speed of an appeal, else appeal would always be inadequate. (See, H. Howard Hassard, Extent to Which Availability of Ordinary Remedy Defeats Issuance of Writ of Prohibition, 22 Cal.L.R. 537, 540.)

4.  (B. E. Witkin, The Extraordinary Writ—Friend or Enemy, 29 Cal.State Bar Journal, 467, 479.)

5.  For a California case in which the court allowed restitution of an unjust enrichment notwithstanding that defendant was not a wrongdoer, see Kossian v. American Nat. Ins. Co., 254 Cal.App.2d 647, 62 Cal.Rptr. 225.

6.  For articles, comments, and notes on the development and application of restitution, see Symposium—Restitution, 19 Hast.L.Rev. 991.

7.  For a California case which has expanded restitution to sometimes allow for exemplary damages, see Ward v. Taggart, 51 Cal.2d 736, 336 P.2d 534.

8.  The People state that they are ‘seeking restitution for members of the public who were misled by defendants' unlawful sales presentations . . ..’

9.  The People state that they have ‘the power to bring any civil action directly involving the rights and interests of the State or which [the People] deem necessary for the enforcement of the State's law, the preservation of order, and the protection of public rights and interests.’

10.  The People state that they do not ‘seek restitution for the benefit of defendants' victims . . . [but] are seeking an effective judgment which would deprive defendants the fruits of their unlawful sales presentations.’

11.  Even in the presence of a statute, there exists a presumption against the authority of the Attorney General to prosecute an action on behalf of an individual. (Watt v. Smith, 89 Cal. 602, 605, 26 P. 1071.)For an instance where the Attorney General has interpreted a statute to authorize him to prosecute actions on behalf of individuals (Indians of the State of California), see: 10 Opinions of the Attorney General 103.

12.  Bus. & Prof.Code § 17535:‘Any person, corporation, firm, partnership, joint stock company, or any other association or organization which violates or proposes to violate this chapter may be enjoined by any court of competent jurisdiction.‘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.’

13.  See also, People's Home Savings Bank v. Superior Court, supra.

14.  New York does have such a statute: N.Y.Gen.Bus.Law, McKinney's Consol. Laws, c. 20, section 349(b) provides:‘Whenever the attorney general shall believe from evidence satisfactory to him that any person, firm, corporation or association or agent or employee thereof has engaged in or is about to engage in any of the acts or practices stated to be unlawful he may bring an action in the name and on behalf of the people of the state of New York to enjoin such unlawful acts or practices and to obtain restitution of any moneys or property obtained directly or indirectly by any such unlawful acts. . . .’ (Emphasis added.)

15.  (In 1939, Pol.Code § 1109 was replaced without substantial change by Elec.Code § 300. In 1961, Elec.Code § 300 was replaced without substantial change by Elec.Code § 391.)

16.  Civil Code section 1692:‘When a contract has been rescinded in whole or in part, any party to the contract may seek relief based upon such rescission by (a) bringing an action to recover any money or thing owing to him by any other party to the contract as a consequence of such rescission or for any other relief to which he may be entitled under the circumstances or (b) asserting such rescission by way of defense, counterclaim or cross-complaint.‘If in an action or proceeding a party seeks relief based upon rescission and the court determines that the contract has not been rescinded, the court may grant any party to the action any other relief to which he may be entitled under the circumstances.‘A claim for damages is not inconsistent with a claim for relief based upon rescission. The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of recovery.‘If in an action or proceeding a party seeks relief based upon rescission, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties.’ (Emphasis added.)

17.  Civil Code section 54 was repealed by Stats.1969, ch. 1866, section 3, p. 4424.

18.  For a discussion regarding the propriety of the use of injunction for the protection of personal rights as well as property rights, see Orloff, supra, at pp. 114–118, 180 P.2d 321.

19.  For an opinion of the attorney general in which this limitation is recognized, see 28 Opinions of the Attorney General 369.

20.  For a review of the application of parens patriae in the federal courts, see 39 Harvard Law Review 1084 and 58 Harvard Law Review 741.

21.  See footnote 14, supra (p. 16).

22.  Whenever an individual and the State of California have concurrent interests in the same action, the attorney general has the right of legal control over the judicial proceeding (People ex rel. Budd v. Holden, 28 Cal. 123, 130), and the election of any particular remedy by the attorney general would be binding upon the private individual. The ramifications of foisting upon an individual the remedy elected by the attorney general are examined in Prosser, Torts (4th ed.), 618–622, 894–4 and in 1 Witkin, California Law, Contracts, section 266.

23.  This assumes, of course, that the action is of the type which is assignable in law. In California, an action in restitution is ‘assignable, survivable, and provable in bankruptcy.’ (1 Witkin, Calif.Law, Contracts, § 7.) This is true notwithstanding the fact that the restitutory obligation may initially arise out of tort: ‘[I]n the case of a tort resulting in the wrongful acquisition of personal property, the law imposing on the wrongdoer the duty of returning that property to the owner, the obligation at common law might be treated as quasi contractual, and the neglect to perform it a breach of such contract, in which case the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is measured substantially in the same way. Similarly, in determining the question of survival at common law the substantial cause of action might properly be treated as founded in contract.’ (Vragnizan v. Savings Union Etc. Co., 31 Cal.App. 709, 712, 161 P. 507, 508; see also, Witkin, Calif.Proc. (2d), Pleading, § 97, Assignment for Collection.)

24.  We believe that a scheme of assignments could prove to be socially beneficial. ‘Thirty years ago commentators, in urging the utility of the class suit to vindicate the rights of stockholders, made this incisive observation: ‘Modern society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive . If each is left to assert his rights alone if when he can, there will at best be a random and fragmentary enforcement, if there is any at all. This result is not only unfortunate in the particular case, but it will operate seriously to impair the deterrent effort of the sanctions which underile much contemporary law. The problem of fashioning an effective and inclusive group remedy is thus a major one.’ (Kalven and Rosenfield, Function of Class Suit (1941) 8 U.Chi.L.Rev. 684, 686.)' (Vasquez v. Superior Court, 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 800, 484 P.2d 964, 968.)

25.  In Orloff, supra (at p. 114, 180 P.2d at p. 323), the court states: ‘It has been held (although dealing with exclusions from public places where there are discrmination on the basis of race or color) that preventative—specific relief is available where a public agency operates the public place. Stone v. Bd. of Directors of Pasadena, 47 Cal.App.2d 749, 118 P.2d 866, in which mandamus was allowed. Constitutional basis may exist for preventing such discrimination but that is not a factor of sufficient force to deny similar relief where such discrimination does not exist.’ (Emphasis added.) To the same effect, see the second Orloff case: 36 Cal.2d 734, 739, 227 P.2d 449; see also, Burks v. Poppy Construction Co., 57 Cal.2d 463, 470, 20 Cal.Rptr. 609, 370 P.2d 313.

26.  In their complaint, the People allege that defendants committed violations of Business and Professions Code section 17500 and ask penalties under Business and Professions Code section 17536 for each of the violations. The People did not set out the specific facts which constituted each alleged violation.

27.  Bus. & Prof.Code § 17500:‘It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform sevices, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating therecto, to make or disseminate or cause to be made or disseminated before the public in this State, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, any statement, concerning such real or personal property or services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exerise of reasonable care should be known, to be untrue or misleading, or for any such person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any auch statement as part of a plan or scheme with the intent not to sell such personal property or services, professional or otherwise, so advertised at the price stated therein, or as so advertised.’

STEPHENS, Acting Presiding Justice.

AISO and REPPY, JJ., concur.