MANUFACTURERS LIFE INSURANCE COMPANY v. SUPERIOR COURT

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Court of Appeal, First District, Division 2, California.

The MANUFACTURERS LIFE INSURANCE COMPANY, et al., Petitioner, v. The SUPERIOR COURT in and for the City and County of San Francisco, Respondent,

WEIL INSURANCE AGENCY, INC., a California Corporation, Real Party in Interest. WEIL INSURANCE AGENCY, INC., a California Corporation, Petitioner, v. The SUPERIOR COURT in and for the City and County of San Francisco, Respondent, The MANUFACTURERS LIFE INSURANCE COMPANY, et al., Real Parties in Interest.

Nos. A052795, A055038.

Decided: April 04, 1994

Khourie, Crew & Jaeger, Eugene Crew, Timothy F. Perry, San Francisco, for Weil Ins. Agency, Inc. Jerome B. Falk, Jr., H. Joseph Escher, III, Pauline E. Calande, Theresa M. Beiner, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, for The Manufacturers Life Ins. Co.

Plaintiff Weil Insurance Agency (“Weil”) brought this action for damages alleging primarily an unlawful boycott in the sale of annuities used to fund structured settlements of personal injury claims.   Various defendants successfully demurred to the complaint, insofar as it asserted statutory causes of action, mainly on the ground that such causes of action are superseded by provisions of the Insurance Code.   We have concluded that this contention is unsound and that plaintiff can state a cause of action under the Cartwright Act, Business and Professions Code sections 16720 and 16721.5.   We have also concluded that plaintiff cannot state a private cause of action under the Unfair Insurance Practices Act or the Unfair Business Practices Act.   We will direct the trial court to overrule the demurrers as to the Cartwright Act claims but to sustain the demurrers to the remaining counts at issue in this proceeding.

BACKGROUND

The action concerns plaintiff's attempt to engage in business as a broker of, and consultant in connection with, settlement annuities.   A settlement annuity is an annuity purchased by a liability carrier to fund a structured settlement in a personal injury action.   A structured settlement is one in which the injury claimant agrees to accept periodic payments (i.e., the proceeds of an annuity) rather than a single lump sum.   It appears to be conceded by all concerned that such an annuity is classified in this state as a form of life insurance.  (See Ins.Code, § 101.)

The gist of the complaint's allegations contained in the four statutory counts with which we are now concerned is that defendants boycotted plaintiff's brokerage business because of opposition to plaintiff's conduct in providing injury claimants and their attorneys with information concerning the underlying features of settlement annuities, in particular their actual costs.   Such disclosures were inimical to a plan defendants had formed to market settlement annuities as a way for liability carriers to settle injury claims below their cash settlement value.   Therefore defendants schemed to prevent claimants from acquiring such information.   They pursued this scheme, in part, by boycotting and disparaging plaintiff, as a broker and consultant supplying such information to injury claimants.

Plaintiff alleges it built a successful brokerage and consulting business based upon advising and educating claimants and their attorneys in connection with various aspects of settlement annuities including those which concerned defendants.   This conduct, however, interfered with defendants' marketing scheme.   Accordingly, defendants coerced or induced suppliers of annuities to stop doing business with plaintiff.   As a result, plaintiff's settlement annuities business was destroyed.

The first four surviving counts 1 allege violations of (1) Business and Professions Code section 16720, part of the Cartwright Act;  (2) Business and Professions Code section 16721.5, also part of that Act;  (3) Insurance Code section 790.03, subdivision (c), part of the Unfair Insurance Practices Act;  and (4) Business and Professions Code sections 17200 et seq., the Unfair Competition Act.2  Three other counts sound in tort, and are not at issue in these writ proceedings.

In the earliest ruling before us, the trial court sustained demurrers to the Cartwright Act claims (counts 1 and 2) with leave to amend.   However, it concluded that plaintiff had stated causes of action under the UIPA and the UCA (counts 4 and 5).   Defendants filed petition number A052795 seeking a writ of mandate directing the trial court to sustain the demurrers to these counts.   We issued an alternative writ.

While that matter was pending, plaintiff amended the complaint and various defendants again demurred to the Cartwright Act counts.   The trial court sustained those demurrers without leave to amend.   Plaintiff filed petition number A055038, seeking a writ which would direct the trial court to overrule the demurrers to those counts.   We initially denied plaintiff's petition.   Plaintiff sought review in the Supreme Court.   That court granted the petition and retransferred the matter to us with directions to issue an alternative writ.   We have done so.

I. CARTWRIGHT ACT

A. Introduction

[1, 2] The Cartwright Act states a general prohibition against conduct effecting a combination in restraint of trade, i.e., a “trust.”  (Bus. & Prof.Code, §§ 16720, 16721.5.)   One common species of a trust is a “concerted refusal to deal with other traders, or, as it is often called, the group boycott.”  (Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 931, 130 Cal.Rptr. 1, 549 P.2d 833.)   The prohibition on such conduct extends to “every type of business,” including insurance.  (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 43, 44, 46, 172 P.2d 867;  see Marin County Bd. of Realtors, Inc. v. Palsson, supra, 16 Cal.3d at pp. 927–928, 130 Cal.Rptr. 1, 549 P.2d 833.)

At the same time, the UIPA prohibits acts of “boycott, coercion, or intimidation resulting in or tending to result in unreasonable restraint of, or monopoly in, the business of insurance.”  (Ins.Code, § 790.03, subd. (c) ( “section 790.03(c)”).)  The major issue before us is whether the UIPA supplants the Cartwright Act so as to provide the sole basis by which unlawful conduct of the type alleged here may be subjected to legal restraint or may otherwise produce legal consequences.

[3] In dealing with any problem of statutory effect, we begin and often end with the words of the statute.  “[C]ourts are not at liberty to impute a particular intention to the Legislature when nothing in the language of the statute implies such intention.”  (Dunn–Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 658, 11 Cal.Rptr.2d 850, review den. [rejecting claim of implied exemption from general statute];  see Code Civ.Proc., § 1858.)   The statute “must be construed with reference to the whole system of law of which it is a part, so that each part may be harmonized and have effect.”  (Yoffie v. Marin Hospital Dist. (1987) 193 Cal.App.3d 743, 748, 238 Cal.Rptr. 502, review den.;   see Code Civ.Proc., § 1858.)  “This rule applies even if the statutes to be harmonized appear in different codes.”  (Ibid.)  “[T]he different codes blend into each other and constitute a single statute for the purposes of statutory construction and ․ legislative intent may be determined not only from an individual code but the whole body of law.  (Pesce v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 310, 312 [333 P.2d 15];  American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 260 [109 Cal.Rptr. 22].)”  (Winzler & Kelly v. Department of Industrial Relations (1981) 121 Cal.App.3d 120, 125, 174 Cal.Rptr. 744.)

As explained in the following discussion, we have concluded that the UIPA expressly preserves existing remedies for unlawful conduct in the business of insurance.   Such preservation is consistent with the history of the UIPA and with the interpretational presumption against the implied repeal of statutory remedies.   A contrary holding is not warranted by case law or by any claimed legislative ratification.   Accordingly, the demurrers to the Cartwright Act claims should have been overruled.

B. Express Preservation of Existing Remedies

The UIPA itself expresses an affirmative intention and expectation that it will preserve intact existing remedies for insurance industry misconduct.   Insurance Code section 790.09 states that the Commissioner's issuance of a cease and desist order shall not obstruct or impede the imposition of “civil liability or criminal penalty under the laws of this State” arising from the same conduct.3

Defendants have never offered a plausible interpretation of this statute consistent with the view that the UIPA supersedes the Cartwright Act.   To be sure, the statute only refers to situations in which the Commissioner issues a cease and desist order.   Numerous absurdities would arise, however, if we concluded that the UIPA supersedes other laws in most cases, but preserves existing remedies when the Commissioner issues such an order.   This would make the Commissioner's jurisdiction exclusive only so long as it is not exercised—a result which would appear to maximize the potential for jurisdictional conflict without creating any discernible benefit.   Under such a regime, mere administrative inaction would cloak all manner of insurance misconduct with immunity.   Furthermore, there would be no textual basis for withholding this immunity from criminal prosecutions as well, since section 790.09 mentions criminal penalties in tandem with civil remedies.

At oral argument defendants' counsel appeared to agree that a cease and desist order could not have the effect of restoring liability from which an insurer had otherwise become immune.   Yet if section 790.09 does not have that effect it becomes meaningless under defendants' regime, for there is no “civil remedy” for the statute to preserve;  any such remedy has been superseded by the UIPA as a whole.  Section 790.09 can only be given meaning by acknowledging a subsisting “civil liability ․ under the laws of this State,” to which violators are already subject when the Commissioner issues a cease and desist order, and from which no such order “shall in any way relieve or absolve” them.

The history of the UIPA indicates that the original bill did not contain a provision preserving civil remedies, but only a section preserving the Commissioner's powers under existing law.4  The first amended version of the bill, and each successive version, contained what is now section 790.09.  (Assem.Amend. to Assem.Bill No. 1530 (1959 Gen.Sess.) April 8, 1959;  see Assem.Amend. to id., May 6, 1959;  Sen.Amend. to Assem.Bill No. 1530 (1959 Gen.Sess.) June 11, 1959;  Stats.1959, ch. 1737, § 1, p. 4191.)   This provision originated even earlier, however, in the 1947 “Chicago Draft” of the Model Unfair Insurance Practices Act proposed by the National Association of Insurance Commissioners (NAIC).5  Its pointed adoption in California may have emphasized a legislative perception that the UIPA affected little if any change in existing law.   Indeed, at the time of the enactment of the UIPA the Legislative Analyst wrote that the bill would “make[ ] no substantive change in existing law.”  (Opn. of Legis.Analyst, “Analysis of Assembly Bill No. 1530” (May 20, 1959), p. 1;  Exh. 1 to Request for Judicial Notice filed Sep. 20, 1991, in A055038.)  (Emphasis added.)

If the Legislature wished to exempt the insurance industry from the Cartwright Act, it knew full well how to do so.   The Insurance Code contains no fewer than four express exemptions of specified classes of insurance from other laws.  (Ins.Code, §§ 795.7 [senior citizens' health insurance];  1860.1 [casualty insurance];  11758 [workers' compensation];  12414.26 [title insurance].)   All of these statutes would be superfluous if defendants' view of the UIPA were correct.   Yet two of them were enacted well after the effective date of that Act.  (1973 Stats., ch. 1130, § 15, p. 2314 [section 12414.26];  1963 Stats., ch. 2055, § 1, p. 4298 [section 795.7].)

Our view that the UIPA effects no displacement of general laws is consistent with the Commissioner's interpretation of the UIPA, not only as amicus curiae in this proceeding but as advisor to the Governor and litigant in other proceedings.   Beginning when the UIPA was initially adopted, the Department repeatedly expressed the view that the Act would have little or no effect on California law, but was enacted primarily, if not entirely, to conform to the actions of other states.6  Somewhat later, in Royal Globe Ins. Co. v. Superior Court, supra, 23 Cal.3d at page 897, 153 Cal.Rptr. 842, 592 P.2d 329 (dis. opn.), Justice Richardson quoted the Commissioner as flatly asserting that the UIPA “does not supplant other remedies available under state law.”

Defendants assert that we should give no particular weight to the Commissioner's interpretation.   But the Department's longstanding interpretation, first conveyed to the Governor at the time of the Act's adoption and espoused with apparently perfect consistency since, reinforces our view that the statute simply cannot support the interpretation defendants urge upon us.  (See Truta v. Avis (1987) 193 Cal.App.3d 802, 814, 238 Cal.Rptr. 806, review den.;  Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 595 P.2d 592.)

[4] Defendants' claim of implied supersession also runs afoul of the interpretational presumption against implied repeal.   An “implied repeal” occurs “ ‘[w]hen a later statute supersedes or substantially modifies an earlier law but without expressly referring to it.’ ”  (Department of Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 191, 6 Cal.Rptr.2d 714, review den., quoting Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 54, 69 Cal.Rptr. 480.)   Under this definition, defendants' argument must be viewed as relying on an implied partial repeal of the Cartwright Act i.e., a repeal insofar as that Act would otherwise apply to the business of insurance.

[5, 6] “[T]he law shuns repeals by implication.”  (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 868, 167 Cal.Rptr. 820, 616 P.2d 802;  Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 249, 279 Cal.Rptr. 325, 806 P.2d 1360.)   They “are recognized only when there is no rational basis for harmonizing two potentially conflicting laws.”   (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449, emphasis added.)  “The presumption against implied repeal is so strong that, ‘To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.   The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.’  (Penziner v. West American Finance Co. [ (1937) ] 10 Cal.2d 160, 176 [74 P.2d 252].)   There must be ‘no possibility of concurrent operation.’  (Hays v. Wood (1979) 25 Cal.3d 772, 784 [160 Cal.Rptr. 102, 603 P.2d 19] ․) ․ [I]mplied repeal should not be found unless' ․ the later provision gives undebatable evidence of an intent to supersede the earlier․'  (Ibid․)”  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419–420, 261 Cal.Rptr. 384, 777 P.2d 157, some emphasis added;  see Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 379, 20 Cal.Rptr.2d 330, 853 P.2d 496.) 7

Amici California Chamber of Commerce et al. suggest that the presumption against implied repeal does not fully apply where a general statute overlaps an “administrative regulatory scheme.”   We find no support for this assertion in the case cited by amici (Gordon v. New York Stock Exchange (1975) 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463), or in any other authority.   At most, schemes regulating in minute detail may produce such pervasive conflicts with preexisting laws that the two cannot coexist and are, for that reason, mutually repugnant.  (See I.E. Assocs. v. Safeco Title Ins. Co., supra, 39 Cal.3d at p. 285, 216 Cal.Rptr. 438, 702 P.2d 596.)   The mere presence of administrative regulation, no matter how broad the regulatory authority, does not in itself create an irreconcilable conflict or otherwise warrant an inference of intent to repeal.

Nor may defendants avoid the presumption against implied repeal by relying on different terminology.   In particular we reject the claim that the UIPA presumptively provides an “exclusive remedy” for conduct covered by its terms.   Repeal by any other name is still repeal, and a claim of implied repeal is viewed with skepticism no matter how it is characterized.  (See Physicians & Surgeons Laboratories, Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968, 985–986, 8 Cal.Rptr.2d 565, review den. [applying presumption against implied repeal in rejecting claim that new regulation superseded existing ones];  see Rojo v. Kliger, supra, 52 Cal.3d at p. 80, 276 Cal.Rptr. 130, 801 P.2d 373 [new statutory remedy deemed exclusive only if it exhibits “a legislative intent to displace all preexisting or alternative remedies”];  McKee v. Bell–Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1244–1245, 231 Cal.Rptr. 304, review den. [new statutory remedy generally regarded as cumulative, not exclusive];  Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 301, 188 Cal.Rptr. 159;  Glaser v. Meyers (1982) 137 Cal.App.3d 770, 774, 187 Cal.Rptr. 242;  3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 8, p. 39.)

[7] We also observe a certain illogic in referring to the UIPA as providing an “exclusive remedy” when, as we conclude in the following section, it provides no private remedy at all.   Nor does it empower the Commissioner to redress private injuries.  (See Shernoff v. Superior Court (1975) 44 Cal.App.3d 406, 409, 118 Cal.Rptr. 680 [Commissioner's authority “is limited to restraint of future illegal conduct ․, and he possesses no authority to enter money judgments for past injuries”];  Greenberg v. Equitable Life Assur. Society (1973) 34 Cal.App.3d 994, 1001, 110 Cal.Rptr. 470 [“the sole disciplinary authority of the commissioner would be to issue a cease and desist order or obtain an injunction to restrain the illegal conduct”].)   Courts are particularly reluctant to view a statute as affording an exclusive remedy when it appears inadequate to redress the wrong toward which it is directed.  (3 Witkin, op. cit. supra, § 9, p. 40;  Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 113, 180 P.2d 321;  see Rojo v. Kliger, supra, 52 Cal.3d at pp. 80–82, 276 Cal.Rptr. 130, 801 P.2d 373 [given various limitations, Fair Employment and Housing Act did not displace other remedies];  see Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th 377, 391–392, fn. 9, 6 Cal.Rptr.2d 487, 826 P.2d 730 [discretionary relief from “primary jurisdiction” doctrine where administrative remedy inadequate].)   Here, the denial of a Cartwright Act claim would deprive plaintiffs, and others in their position, of any remedy whatsoever for substantial damages resulting from concededly unlawful conduct.   No justification for such a regime has been proposed and we discern none.

[8, 9] Nothing in the UIPA suggests a purpose, unmistakable or otherwise, to displace existing state-law remedies.   Rather the avowed purpose of the Act was to displace federal law to the maximum extent possible in accordance with the offer of federal abstention embodied in the McCarran–Ferguson Act, 15 U.S.C.A. §§ 1011–1015 (hereafter “McCarran”).8  (See Karlin v. Zalta (1984) 154 Cal.App.3d 953, 966, 201 Cal.Rptr. 379;  American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 756–758, 285 Cal.Rptr. 765, review den.)   Under McCarran, federal law is inapplicable to insurance insofar as the state “generally proscribes” (or permits) certain conduct.  (Ohio AFL–CIO v. Insurance Rating Board (6th Cir.1971) 451 F.2d 1178, 1181, 1184, cert. den. (1972) 409 U.S. 917, 93 S.Ct. 215, 34 L.Ed.2d 180;  California League of Ind. Ins. Pro. v. Aetna Cas. & S. Co. (N.D.Cal.1959) 175 F.Supp. 857, 860.)  “The condition of state regulation is satisfied by ‘a state regulatory scheme possess[ing] jurisdiction over the challenged practice.’ ”  (In re Insurance Antitrust Litigation (N.D.Cal.1989) 723 F.Supp. 464, 474, revd on other grounds (9th Cir.1991) 938 F.2d 919;  quoting Feinstein v. Nettleship Co. of Los Angeles (9th Cir.1983) 714 F.2d 928, 933, cert. den. (1984) 466 U.S. 972, 104 S.Ct. 2346, 80 L.Ed.2d 820;  brackets in Antitrust.)   In other words, the mere assertion of state jurisdiction is sufficient to preclude the application of federal antitrust law under McCarran.

By enacting the UIPA, the Legislature explicitly accepted the federal offer of abstention on the broadest possible terms, using language designed to ensure that the entire insurance industry was brought under the state's jurisdiction.   Nothing in the statute suggests an intent to shelter the insurance industry from state laws.9  (See Rojo v. Kliger, supra, 52 Cal.3d at p. 81, 276 Cal.Rptr. 130, 801 P.2d 373 [statute expressing intent to “occupy the field” displaced local regulation, not other state legislation].)

C. Caselaw

Defendants' challenge to the Cartwright Act claims ultimately rests on a single sentence in Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 322, 70 Cal.Rptr. 849, 444 P.2d 481;  “These statutes and the common law which once constituted ‘the protection of the public against combinations in restraint of the insurance trade’ (Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 45 [172 P.2d 867] ) are now expressly superseded and contravened by the specific provisions of the Insurance Code.”   After scrutinizing this statement in context, we have concluded that Chicago Title is neither compelling nor persuasive authority for a rule holding the Cartwright Act superseded by the UIPA.

[10] The quoted statement is dictum.   Dictum is the “statement of a principle not necessary to the decision.”  (People v. Squier (1993) 15 Cal.App.4th 235, 240, 18 Cal.Rptr.2d 536, citations and internal quotation remarks omitted.)   The holding of Chicago Title is that the complaint failed to adequately plead the elements of a Cartwright Act cause of action, or any other claim.   The court undertook a painstaking count-by-count analysis of the complaint, identifying numerous factual and legal deficiencies.10  If the Supreme Court had believed that the statutes cited by the plaintiffs (including the Cartwright Act) were superseded by the Insurance Code, there would have been no occasion for this discussion.   But the court explicitly identified factual insufficiency as the “determinative” issue.11

[11] Dictum, of course, is not controlling authority even when it emanates from the Supreme Court.  (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358, 20 Cal.Rptr.2d 515;  cf. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr.2d 321, 369 P.2d 937;  Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734–735, 257 Cal.Rptr. 708, 771 P.2d 406.)   Nonetheless it “carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic.”  (Grange, supra, 16 Cal.App.4th at p. 1358, 20 Cal.Rptr.2d 515;  citations and internal quotation marks omitted.)  Chicago Title's statement concerning Insurance Code exclusivity satisfies neither of these requirements.

Like most of the opinion in Chicago Title, the quoted statement was authored by a court of appeal and “adopted” by the Supreme Court.  (69 Cal.2d at p. 311, 70 Cal.Rptr. 849, 444 P.2d 481.)   This in itself does not warrant lessened deference, but the statement also betrays a certain lack of authorial attention.   To begin with, it confuses the Cartwright Act with the Unfair Business Practices Act.   The subject dictum is immediately preceded by a citation to Business and Professions Code sections 17040–17051.   (Id. at p. 322, 70 Cal.Rptr. 849, 444 P.2d 481.)   These statutes are part of the UBPA and not, as the author of the dictum seemed to believe, the Cartwright Act. (See ibid.;   cf. id. at pp. 315, 322, 70 Cal.Rptr. 849, 444 P.2d 481 [correctly defining “Cartwright Act”];  Food & Agr.Code, §§ 66524, 65521 [same];  Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d at p. 42, 172 P.2d 867 [same];  compare Bus. & Prof.Code, § 17000 [defining “Unfair Practices Act”].) 12  The statement that “these statutes” have been superseded by the Insurance Code is thus burdened with a glaring anomaly.

Moreover, the court never identified any provision of the Insurance Code which “expressly superseded and contravened” any other statute.   In particular, the opinion never mentioned the UIPA.   Instead it cited certain provisions of the Insurance Code involving the regulation of title insurance rates.  (Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at pp. 322–323, 70 Cal.Rptr. 849, 444 P.2d 481, citing Ins.Code, §§ 12404–12412.)   None of those provisions could be said to “expressly abrogate” any other statute.   Indeed, some five years later the Legislature did enact an express exemption covering some of the activities authorized by the cited portion of the Code.  (Ins.Code, § 12414.26, added by 1973 Stats., ch. 1130, § 15, p. 2314.)   The absence of such a statute in 1968 renders the Chicago Title dictum nearly unintelligible.   Certainly the Legislature could not have given that case the meaning defendants do, or it would not have bothered to enact the cited statute.

The two paragraphs immediately following the subject dictum suggest that three of the complaint's eleven counts might intrude upon the Commissioner's jurisdiction over title insurance rates.  (Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at pp. 322–323, 70 Cal.Rptr. 849, 444 P.2d 481.)   None of these three counts invoked the Cartwright Act.   We note sharp historical and analytical distinctions between the regulation of rate-setting practices and the broad prohibitions in the UIPA.  (See Karlin v. Zalta, supra, 154 Cal.App.3d at pp. 973–977, 201 Cal.Rptr. 379.)

The court thus seemed to say no more than that part of the complaint might intrude upon regulatory turf.   Even with respect to that part of the complaint, however, the court ultimately returned to its holding, declaring that the factual allegations under scrutiny “fail in each instance to support the charge” and that the counts discussed to that point “state facts insufficient to establish proscribed conduct.”  (Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 323, 70 Cal.Rptr. 849, 444 P.2d 481.)   The court only then turned to claims having any bearing here, declaring that “the final counts charging antitrust infringements fall for similar reasons.”  (Ibid.)  On the next page, the Supreme Court itself inserted a declaration that the Cartwright Act counts failed “because plaintiffs' vague and conclusionary pleadings fail to allege sufficient facts.”  (Id. at p. 324, 70 Cal.Rptr. 849, 444 P.2d 481.)

It thus appears that the subject dictum means at most that the three claims concerning rates were repugnant, or potentially repugnant, to the “specific provisions of the Insurance Code” concerning rate setting.   The allusion to the Speegle case, and thus apparently to the Cartwright Act, was not only dictum, but unsound.  (See 9 Witkin, op. cit. supra, Appeal, § 795, p. 768, quoting In re Johnson (1949) 92 Cal.App.2d 467, 470, 207 P.2d 123.)

Indeed, if we held California's general antitrust laws superseded by the UIPA, we would stand alone in opposition to “general law throughout the country.”  (9 Witkin, op. cit. supra, Appeal, § 799, p. 772.)   Every court to address the issue has concluded that its version of the UIPA does not displace general laws regulating unlawful trade restraints or unfair competition.  (Mead v. Burns (1986) 199 Conn. 651, 509 A.2d 11, 18;  Dodd v. Commercial Union Insurance Co. (1977) 373 Mass. 72, 365 N.E.2d 802, 803–806;  Fischer, etc. v. Forrest T. Jones & Co. (Mo.1979) 586 S.W.2d 310 [general antitrust law applied to claimed conspiracy to withhold necessary information from potentially competing brokers];  State ex rel. Stratton v. Gurley Motor Co. (1987) 105 N.M. 803, 737 P.2d 1180, 1182–1184;  Ray v. United Family Life Insurance Co., Inc. (W.D.N.C.1977) 430 F.Supp. 1353, 1356–1357, approved in Ellis v. Smith–Broadhurst, Inc. (1980) 48 N.C.App. 180, 268 S.E.2d 271, 273;  Skinner v. Steele (Tenn.App.1987) 730 S.W.2d 335, 337–338 [purpose of act was to “oust federal antitrust jurisdiction as completely as possible,” not to exempt insurance from other state statutes];  Attorney General of Tex. v. Allstate Ins. Co. (Tex.App.1985) 687 S.W.2d 803, 805;  Grams v. Boss (1980) 97 Wis.2d 332, 294 N.W.2d 473, 480.)   Several of these courts expressly cited their states' respective versions of Insurance Code section 790.09.  (See Mead v. Burns, supra, 509 A.2d at p. 17;  Dodd v. Commercial Union Insurance Co., supra, 365 N.E.2d at p. 804;  Skinner v. Steele, supra, 730 S.W.2d at p. 338;  Attorney General of Tex. v. Allstate Ins. Co., supra, 687 S.W.2d at p. 805.) 13

Defendants cite Greenberg v. Equitable Life Assur. Soc., supra, 34 Cal.App.3d 994, 110 Cal.Rptr. 470, where the court stated in a footnote that under Chicago Title, the Cartwright Act was “superseded and contravened” by the Insurance Code.  (34 Cal.App.3d 994, 999, fn. 2, 110 Cal.Rptr. 470.)   However, the court explained Chicago Title's lengthy discussion of pleading issues by attributing it to tacit recognition of a private right of action under section 790.03.   This reading of Chicago Title is untenable.   As previously noted, the court in Chicago Title never mentioned the UIPA.   The only sections of the Insurance Code cited in proximity to the “superseded and contravened” language dealt with title insurance rates.  (69 Cal.2d at pp. 322–323, 70 Cal.Rptr. 849, 444 P.2d 481.)

Furthermore, the premise on which the Greenberg interpretation of Chicago Title rests—that the UIPA itself affords a private right of action—has been flatly repudiated by the Supreme Court in Moradi–Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d at page 304, 250 Cal.Rptr. 116, 758 P.2d 58.   While rejecting the attempt to predicate new rights of action on the UIPA, the court in Moradi–Shalal emphasized that existing remedies were unaffected by that Act.   It “urge[d] the Insurance Commissioner and the courts to continue to enforce the laws forbidding [unlawful insurance] practices to the full extent consistent with our opinion,” and declared that “the courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, and (as to the insured) either breach of contract or breach of the implied covenant of good faith and fair dealing.”   (Id. at pp. 304–305, 250 Cal.Rptr. 116, 758 P.2d 58, emphasis added.)

Defendants assert that Moradi–Shalal recognizes only the preservation of common law claims, not those based on statute.   Such a scheme, however, would fail to protect the putative exclusivity of regulatory jurisdiction, while forcing prospective plaintiffs, for no apparent reason, to attempt to conform their claims to obsolete pre-Cartwright forms.   We are no more willing to attribute such bizarre distinctions to the Supreme Court than to the Legislature.

We understand the reference to the common law in Moradi–Shalal to rest on the premise that the cause of action asserted there—unfair claims practices—had no statutory basis outside the UIPA.   Since the UIPA itself afforded no right of action, the plaintiff was relegated to such common-law claims as might be available.

Moradi–Shalal marks a return to the fundamental principle that the UIPA, like all statutes, is to be applied according to its terms.   Its language neither creates new private rights nor destroys old ones.   This was the view of Justice Richardson, whose dissent in Royal Globe, supra, 23 Cal.3d at pp. 895–898, 153 Cal.Rptr. 842, 592 P.2d 329, was heavily cited in Moradi–Shalal.  (46 Cal.3d at pp. 294–296, 250 Cal.Rptr. 116, 758 P.2d 58.)   He wrote that section 790.09 “preserves any preexisting civil or criminal liability which the insurer might face under other statutory or decisional law.”   (Royal Globe, supra, 23 Cal.3d at p. 893, 153 Cal.Rptr. 842, 592 P.2d 329, some emphasis added;  see id. at p. 896, 153 Cal.Rptr. 842, 592 P.2d 329.)   Similarly, the court in Shernoff v. Superior Court, supra, 44 Cal.App.3d 406, 409, 118 Cal.Rptr. 680, acknowledged that section 790.09 “expressly reserves to litigants all civil and criminal remedies against persons who have violated the law.”  (Emphasis added.)   These authorities are consistent with the language of the statute and with the unanimous view of courts elsewhere.   Insofar as Greenberg reached a contrary conclusion, it must be considered unsound.

For these reasons we are disinclined to follow later cases which, in dicta, uncritically accepted Greenberg's view of UIPA exclusivity.   The court in Liberty Transport, Inc. v. Harry W. Gorst Co. (1991) 229 Cal.App.3d 417, 432, 280 Cal.Rptr. 159, disapproved on another point in Adams v. Murakami (1991) 54 Cal.3d 105, 116, 284 Cal.Rptr. 318, 813 P.2d 1348, followed Greenberg because, due to the limited retroactivity of Moradi–Shalal, it had to apply the law in effect under Royal Globe.  (229 Cal.App.3d at p. 426, fn. 1, 280 Cal.Rptr. 159.)   In Karlin v. Zalta, supra, 154 Cal.App.3d 953, 201 Cal.Rptr. 379, the court ultimately concluded that the claims before it were not governed by the UIPA but by the McBride–Grunsky Act.  (At p. 979, 201 Cal.Rptr. 379.)   It had no occasion to reconsider Greenberg's reading of Chicago Title since it found both cases (along with Royal Globe ) inapposite.  (Ibid.)

We reject any notion that defendants' claim of exemption from the antitrust laws, however unsound, rests upon a settled rule and is therefore sheltered by the doctrine of stare decisis.  (See 9 Witkin, op. cit. supra, Appeal, §§ 787, 795, pp. 758, 768–769.)   No court has ever held that insurance companies are immune from civil liability for antitrust injuries.   Rather, some cases—notably Greenberg and Royal Globe—mistook the statute under which such remedy should be pursued.   Defendants seek to blend those discredited cases with the anomalous and misleading dictum in Chicago Title, and the corrective holding of Moradi–Shalal, to fashion a new immunity made of odds and ends and resting neither on statute nor principle but on misconstrued precedents.   We decline to adopt such a course based on the false invocation of stare decisis.

D. Subsequent Ratification

Defendants contend that the Legislature ratified Chicago Title and Greenberg by amending the UIPA on several occasions “without altering the rule articulated in those opinions.”   This contention is unsound.

The rule of subsequent ratification applies to statutes which “have previously been judicially construed.”  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734, 180 Cal.Rptr. 496, 640 P.2d 115, cert. den., 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111.)  (Emphasis added.)   No case has construed the UIPA to bar Cartwright Act claims.   The court in Greenberg merely cited Chicago Title for the proposition that unspecified provisions of the Insurance Code superseded the Cartwright Act.  (Greenberg v. Equitable Life Assur. Soc., supra, 34 Cal.App.3d at p. 999, fn. 2, 110 Cal.Rptr. 470, citing 69 Cal.2d at p. 322, 70 Cal.Rptr. 849, 444 P.2d 481.)   As we have already noted, Chicago Title never so much as mentioned the UIPA.   Ensuing cases repeated Greenberg's conclusion without seeking or offering any justification in the language of the UIPA or any other statute.   Since none of the cases purports to “construe” a statute, an inference of legislative approval is wholly unwarranted.

Moreover, the holding in Greenberg, and then in Royal Globe, granted persons suffering antitrust injuries the substantial remedial equivalent of a Cartwright Act claim.   These developments deprived the Legislature of any concrete reason to correct the courts' error.   As the Supreme Court has acknowledged, the Legislature is concerned with “ ‘bottom-line’ results” and is unlikely to fine-tune judicial decisions.  (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157, 278 Cal.Rptr. 614, 805 P.2d 873.)

E. Proposition 103

The parties devote considerable attention to Proposition 103, by which the voters in 1988 substantially revised the McBride–Grunsky Insurance Regulatory Act of 1947, Insurance Code sections 1850–1860.3 (“McBride–Grunsky”).  (See 1947 Stats., ch. 805, §§ 1 et seq., pp. 1896 et seq.)   That Act previously authorized casualty insurers to cooperate in rate setting and other matters in ways which might otherwise violate antitrust laws.  (See former Ins.Code, §§ 1853–1853.8.)   Proposition 103 repealed these provisions.   It also added a declaration that the insurance industry “shall be subject to the laws of California applicable to any other business, including, but not limited to, the Unruh Civil Rights Act ․, and the antitrust and unfair business practices laws․”  (Ins.Code, § 1861.03, subd. (a).)

If section 1861.03 stood by itself it would easily dispose of this case by explicitly subjecting defendants to state antitrust law.   In context, however, it is unclear whether the statute reaches life insurance.   McBride–Grunsky is by its terms inapplicable to life insurance.  (Ins.Code, § 1851, subd. (b).)  On the other hand, if section 1861.03 does not subject defendants to the Cartwright Act, Proposition 103 appears to be irrelevant to this case.

[12] Defendants point out that the ballot summary concerning Proposition 103 stated that under then-existing law, insurance companies were “not subject to the state's antitrust laws.”   However, such a summary “ ‘cannot supply language which does not appear [on the face of the initiative].’ ”  (Sanford v. Garamendi (1991) 233 Cal.App.3d 1109, 1123, 284 Cal.Rptr. 897, review den., brackets in original;  quoting Metropolitan Water District v. Dorff (1979) 98 Cal.App.3d 109, 115, 159 Cal.Rptr. 211.)   Obviously, it cannot supply language missing from existing laws.   Indeed, courts are never bound by a legislative statement concerning the intent of a prior enactment.  (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 44, fn. 14, 283 Cal.Rptr. 584, 812 P.2d 931.)

[13] We conclude that the Unfair Insurance Practices Act does not pose an impediment to plaintiff's claims under the Cartwright Act.

II. UNFAIR INSURANCE PRACTICES ACT

As previously noted, the Supreme Court has already determined that the UIPA does not create a private right of action for violations of its terms.   (Moradi–Shalal v. Fireman's Fund Ins. Cos., supra, 46 Cal.3d 287, 304, 250 Cal.Rptr. 116, 758 P.2d 58.)   Plaintiff asks us to distinguish that case on the ground that it involved unfair claims practices prohibited by Insurance Code section 790.03, subdivision (h), whereas this case involves an unlawful boycott in violation of subdivision (c).   We see no basis, however, for such a distinction here.

Moradi–Shalal's conclusion that the UIPA does not create private rights of action appears fully applicable to any unlawful conduct in the business of insurance.   The court in effect concluded that Royal Globe had misconstrued section 790.09 to recognize a right of action, when in fact there was no textual basis for such a right.   It may remain possible, at least theoretically, to judicially “imply” a right of action for some violations of the UIPA.   Even were we to accept that theoretical possibility, however, the conditions for such an implied right of action are not satisfied here.

[14] Before a court may imply a right of action based on violations of a substantive statute it must appear that (1) the plaintiff belongs to the class of persons the statute is intended to protect;  (2) a private remedy will appropriately further the purpose of the legislation;  and (3) such a remedy appears to be “needed to assure the effectiveness” of the statute.   (Rest.2d, Torts, § 874A, quoted and applied in Middlesex Ins. Co. v. Mann (1981) 124 Cal.App.3d 558, 570, 177 Cal.Rptr. 495.)

[15] In this case the third element of this test is not satisfied, if only because the Cartwright Act already grants plaintiff remedies which will “assure the effectiveness” of section 790.03(c).   Accordingly, there is no occasion to “imply” a private remedy under the UIPA and plaintiff has not stated a cause of action under that statute.  (See Arriaga v. Loma Linda University (1992) 10 Cal.App.4th 1556, 1564, 13 Cal.Rptr.2d 619, review den.)

III. UNFAIR COMPETITION

[16, 17] Nor do we believe plaintiff has stated a cause of action under the Unfair Competition Act, Business and Professions Code section 17200 et seq.   To be sure, that Act contains broad standing provisions (Bus. & Prof.Code, §§ 17203, 17204), and a declaration that its remedies are cumulative (id., § 17205).   Moreover, it has been applied to permit private actions based on violations of other statutes which did not themselves confer standing.  (E.g. People v. McKale (1979) 25 Cal.3d 626, 632–634, 159 Cal.Rptr. 811, 602 P.2d 731;  Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th 377, 382, 383, 400, 6 Cal.Rptr.2d 487, 826 P.2d 730.)   However, the UCA cannot be utilized to “ ‘plead around’ absolute barriers to relief by relabeling the nature of the action as one brought under the unfair competition statute.”   (Rubin v. Green (1993) 4 Cal.4th 1187, 1201, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)   The purpose of the Act is to permit private enforcement of statutory prohibitions where to do so would not interfere with legislative objectives and limitations otherwise prescribed.

[18] It is settled that the UCA cannot be utilized to confer private standing to enforce the UIPA.   In Rubin v. Green, supra, the Supreme Court cited approvingly three decisions which, as the court put it, “held that the bar on ․ implied causes of action, imposed by our decision in Moradi–Shalal ․ may not be circumvented by recasting the action as one under Business and Professions Code section 17200.”  (Id. at p. 1202, 17 Cal.Rptr.2d 828, 847 P.2d 1044, citing Safeco Ins. Co. v. Superior Court (1990) 216 Cal.App.3d 1491, 265 Cal.Rptr. 585;  Maler v. Superior Court (1990) 220 Cal.App.3d 1592, 270 Cal.Rptr. 222, review den.;  Industrial Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1093, 257 Cal.Rptr. 655;  see also American International Group v. Superior Court, supra, 234 Cal.App.3d at p. 768, 285 Cal.Rptr. 765.)

Alternatively, plaintiff seems to suggest that it can state a cause of action under section 17200 because of its valid claim under the Cartwright Act.   We fail to see the logic of this.   If the predicate violation for the UCA claim is a violation of the Cartwright Act, then the UCA claim is merely redundant.   If, on the other hand, the intent is to assert standing to enforce the UIPA, then as we have said, the claim is barred by Moradi–Shalal.

[19] In other words, we decline to permit suit under the UCA when there is a valid regulatory scheme in place dealing with the specific wrong of which the plaintiff complains and the Legislature has made that scheme enforceable exclusively by a regulatory authority.   The fact that the plaintiff has been injured by conduct violating the regulatory scheme, and possesses a cause of action under another statute as a result of that wrong, does not confer standing under the regulatory statute or under the UCA.

[20] Accordingly, plaintiff has not stated a cause of action under the Unfair Competition Act.

DISPOSITION

In number A052795, let a peremptory writ of mandate issue directing the superior court to set aside its order of January 25, 1991, insofar as that order overruled defendants' demurrers to the Third Cause of Action (Unruh Act), the Fourth Cause of Action (Ins.Code, § 790.03, subd. (c)), and the Fifth Cause of Action (Bus. & Prof.Code, §§ 17200 et seq.), and to sustain those demurrers to said causes of action without leave to amend.   The alternative writ is otherwise discharged.

In number A055038, let a peremptory writ of mandate issue directing the superior court to set aside its order of July 23, 1991, insofar as that order sustained defendants' demurrers to the First and Second Causes of Action (Cartwright Act), and to overrule the demurrers to those causes of action.   The alternative writ is otherwise discharged.

FOOTNOTES

1.   At oral argument plaintiff expressly abandoned a fifth statutory cause of action, based on the Unruh Civil Rights Act (Civ.Code, § 51.5).   Our discussion of the complaint will, naturally, disregard this count.   In light of plaintiff's abandonment, however, we will direct the trial court to sustain the demurrer to this court.

2.   Insurance Code sections 790–790.10 are often referred to as the “Unfair Practices Act.”  (See Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 292, 250 Cal.Rptr. 116, 758 P.2d 58;  Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 883, 153 Cal.Rptr. 842, 592 P.2d 329, overruled in Moradi–Shalal, supra, 46 Cal.3d at pp. 292, 304, 250 Cal.Rptr. 116, 758 P.2d 58.)   The Legislature, however, has mysteriously labeled this portion of the Insurance Code the “Unfair Trade Practices Act.”  (Ins.Code, § 1620.2, subd. (a), emphasis added.)   It has given the name “Unfair Practices Act” to sections 17000 through 17101 of the Business and Professions Code.  (Bus. & Prof.Code, § 17000.)   The Supreme Court has used that name to refer not only to those sections but also to sections 17200 et seq.  (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 395, 6 Cal.Rptr.2d 487, 826 P.2d 730;  State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1169, 252 Cal.Rptr. 221, 762 P.2d 385;  cf. Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1260, 10 Cal.Rptr.2d 538, 833 P.2d 545 [describing section 17200 as part of “Unfair Business Practices Act”].)To avoid this confusion of terms we will adopt our own nomenclature for the affected statutes.   Thus we refer to Insurance Code sections 790 through 790.10 as the Unfair Insurance Practices Act (“UIPA”), Business and Professions Code sections 17000 through 17101 as the Unfair Business Practices Act (“UBPA”), and Business and Professions Code sections 17200 through 17208 as the Unfair Competition Act (“UCA”).

3.   Insurance Code section 790.09 provides:  “No order to cease and desist issued under this article directed to any person or subsequent administrative or judicial proceeding to enforce the same shall in any way relieve or absolve such person from any administrative action against the license or certificate of such person, civil liability or criminal penalty under the laws of this State arising out of the methods, acts or practices found unfair or deceptive.”

4.   “§ 790.11.  The powers vested in the commissioner in this article shall be additional to any other powers to enforce any penalties, fines or forfeitures authorized by law with respect to the methods, acts and practices hereby declared to be unfair or deceptive.”  (Assem.Bill No. 1530 (1959 Reg.Sess.), § 1;  see now Ins.Code, § 790.08.)

5.   “No order of the Commissioner under this Act or order of a court to enforce the same shall in any way relieve or absolve any person affected by such order from any liability under any other laws of this state.”   (Exh. B to Report of Joint Comm. on Federal Legislation etc. (Jan. 24, 1947), § 8(d);  Proceedings, 78th Ann.Sess., Nat. Assoc. of Ins. Commissioners (1947), p. 398.)

6.   In a memorandum to the governor, the Chief Assistant Insurance Commissioner indicated that the UIPA had been enacted in all but one other state and that it was expected to add little if anything to California law.   He concluded, “The Department is neither opposed to nor an advocate for this Bill.   We know of nothing in the Bill which is detrimental to the public interest.”  (J. Thomas, Memo. from Dept. of Ins. to Hon. Edmund G. Brown (Jun. 30, 1959), pp. 1–2;  Exh. 1 to Request for Judicial Notice filed Sept. 20, 1991, in A055038.)A few years later, the same author wrote that the Model Act “had only a psychological application to states, such as New York and California [,] which already had extensive laws regulating practically every phase of the business․  [¶] California and some of the other active states hesitated [to adopt the Act] because it was difficult to justify the expense and time expenditure of enacting and having in the books an Act which, for all practical purposes, was unnecessary.”  (J. Thomas, Interdepartmental Memo. (May 17, 1960), pp. 1–2;  Exh. 3 to Request for Judicial Notice filed Sept. 20, 1991, in A055038.)

7.   Statutes are also presumed to be consistent with the common law.  (Dry Creek Valley Assn., Inc. v. Board of Supervisors (1977) 67 Cal.App.3d 839, 844, 135 Cal.Rptr. 726;  see Rojo v. Kliger (1990) 52 Cal.3d 65, 75, 276 Cal.Rptr. 130, 801 P.2d 373;  Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1050, 281 Cal.Rptr. 640, review den.;   compare I.E. Associates. v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285, 216 Cal.Rptr. 438, 702 P.2d 596.)   In this regard, we observe that plaintiff's antitrust claims have their roots in common law.  (See Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d at pp. 44, 45, 46, 172 P.2d 867.)

8.   “The purpose of this article is to regulate trade practices in the business of insurance in accordance with the intent of Congress as expressed in the Act of Congress of March 9, 1945 (Public Law 15, Seventy-ninth Congress), by defining, or providing for the determination of, all such practices in this State which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.”  (Ins.Code, § 790.)

9.   Amici California Chamber of Commerce, et al., describe the UIPA as “answer[ing] a concern expressed by the California Supreme Court” in Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 45, 172 P.2d 867.   It is true that the court noted the absence of “special legislation” in this state against combinations in restraint of the insurance trade.   But the only “concern” expressed in the cited passage is the potential effect of denying enforcement of the Cartwright Act in the insurance business.   Certainly the court had no intention of prognosticating upon the hypothetical preemptive effect of statutes which did not then exist.

10.   For example:  “We are persuaded ․ that appellants' vague and conclusionary pleadings fail to allege facts which might reasonably be construed to reveal a wrongful combination.”  (Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 315, 70 Cal.Rptr. 849, 444 P.2d 481.)“[T]he factual allegations, as illustrated, fail in each instance to support the charge.   Just as the earlier counts state facts insufficient to establish proscribed conduct on the parts of the alleged actors and thus cannot reach their purported conspirators, so the final counts charging antitrust infringements fall for similar reasons.”  (Id. at p. 323, 70 Cal.Rptr. 849, 444 P.2d 481, brackets original.)“The allegation of boycott cannot be supported in this instance because everyone has the unrestricted right to select customers and sources of supply.”  (Id. at p. 324, 70 Cal.Rptr. 849, 444 P.2d 481.)

11.   “We must determine ․ whether the superior court has jurisdiction to entertain an action based upon appellants' theories, or any of them, and, if so, whether appellants have stated a cause of action against any of the various named defendants.   The latter finding, which is determinative, is in the negative.”  (Chicago Title, supra, 69 Cal.2d at p. 313, 70 Cal.Rptr. 849, 444 P.2d 481, emphasis added.)

12.   Concerning our use of the term “Unfair Business Practices Act,” see footnote 2, above.

13.   Apparently failing to discover this solid edifice of adverse sister-state authority, defendants cite only Chick's Auto Body v. State Farm etc. (1979) 168 N.J.Super. 68, 401 A.2d 722, aff'd (1980) 176 N.J.Super. 320, 423 A.2d 311.   That case is patently inapposite because it rests on an express exemption from that state's antitrust laws for the activities of insurers “to the extent that such activities are subject to regulation by the Commissioner of Insurance.”  (Id., 401 A.2d at p. 724, citing N.J.S.A. 56:9–5(b)(4).)   We can find no fault with the court's analysis.   Nor can we find any guidance in it, for this state has no such statute.

BENSON, Associate Justice.

SMITH, Acting P.J., and PHELAN, J., concur.