PEOPLE v. POWERS (1989)

FACTUAL/PROCEDURAL BACKGROUND

In November 1977, Thomas Shelton Powers, as general partner of P & P Investors, Ltd., filed with the City and County of San Francisco a condominium conversion application to convert an apartment house located at 560 Presidio into eight condominium units.   The application included a proposed price list for the units of $40,000 to $45,000 per unit.   On May 11, 1978, the city planning commission passed a resolution which allowed the building to be rezoned as condominiums on the condition that each unit would be priced for purchase by persons of moderate or low income.¹  Powers signed off on the final map of resubdivision, agreeing, among other things, to adhere to all the conditions of approval of the May 11, 1978, resolution and to the Subdivision Code of the City and County of San Francisco.   The map contained the following provision:

“NOTE:  ALL UNITS SHOWN ON THIS MAP HAVE BEEN DESIGNATED AS THE CITY'S PERMANENT LOW AND MODERATE INCOME HOUSING STOCK.”

On April 9, 1979, P & P Investors, Ltd. sold its equity in the building to Thomas Shelton Powers, M.D., Inc.

On July 6, 1979, the mayor signed an amended version of the Subdivision Code which, among other things, strictly limited the buyers of moderate units to those who qualified under a means test as “moderate income families.”   Under the new code, a party purchasing a restricted unit could not re-sell it without restriction.   San Francisco was granted a right-of-first refusal to purchase the unit at the original price plus reasonable adjustments for improvements, cost of living increases, etc.  (Subd.Code, § 1341, subd. (c).)  The amended version was passed as an emergency measure and became effective on the date it was signed by the mayor.

Approximately two weeks after the amendment took effect, Powers took out a building permit in order to bring the building up to code as a precondition to the receipt of final map approval.   Six months later, on January 4, 1980, the mayor signed the board of supervisor's resolution approving the subdivision.   The work was completed in May and the final map recorded in July 1980.   The State issued its Final Subdivision Report on September 11, 1980.

Thomas Shelton Powers, M.D., Inc. then sold the units in bulk to 560 Presidio, Inc., a corporation formed by Powers, for $61,531 each.   560 Presidio, Inc., then re-sold seven of the eight units at prices ranging from $80,000 to $99,000.   Each of the units was sold to a person who did not meet the definition of low or moderate income set forth in the amended Subdivision Code.   The eighth unit was sold for $61,531 to a person whose income status was never determined.   The units were sold without first having been offered to the City and County of San Francisco under the “right-of-first-refusal” provision of the Subdivision Code.

The San Francisco District Attorney, representing the People of the State of California, filed against Powers, Thomas Shelton Powers, M.D., Inc. and 560 Presidio, Inc. (hereafter, except as otherwise indicated, the defendants will be referred to collectively as “defendants”) a complaint for “Injunction, Restitution and Civil Penalties” alleging that in failing to comply with San Francisco's Subdivision Code, the defendants had committed unlawful business practices.  (Bus. & Prof.Code, § 17000 et seq.)   The complaint prayed that the defendants be enjoined from violating the code's provisions, that there be assessed against them a civil penalty of $2,500 for each unlawful business practice, and that they “be ordered to provide moderate income housing in San Francisco equal to that lost by the sale of the units at 560 Presidio, San Francisco, California, and to disgorge the profits obtained by selling said units at an excessive price.”

The trial court held that the 1979 version of the San Francisco City Subdivision Code applied to the transactions at issue.   It further found that the defendants violated that code and thereby committed an unfair business practice with each of the seven condominium sales made to purchasers who did not meet the relevant definition of low- or moderate-income families.   The court's judgment enjoined defendants from any future violation of section 1385 and ordered them to pay the maximum statutory civil penalty of $2,500 for each of the seven units removed from San Francisco's low- and moderate-income housing stock.  (Bus. & Prof.Code, § 17206.)   The court, which had earlier struck from the complaint certain allegations relating to disgorgement or restitution, denied the People's prayer for other forms of injunctive relief, for costs and attorney fees.

The People appeal from the judgment insofar as it limited the relief granted to the imposition of civil penalties and an injunction against future unfair business practices.   Defendants cross-appeal, contending that the court erred in holding that the 1979 version of the ordinance was applicable to the transactions at issue, and thus required them to sell the units to persons of low or moderate income or to offer the units to San Francisco under the amended statute's right-of-first-refusal provisions.

We shall address the issues raised by the cross-appeal first.

The Cross–Appeal

The 1975 version of San Francisco's Subdivision Code restricted the sales of low- or moderate-income housing.   The 1979 amendments to the code created a formula for determining the maximum price of such housing, made the code applicable to re-sales of restricted units and provided for a right-of-first-refusal in favor of San Francisco upon re-sale of the units.²

The code was amended after defendants agreed to abide by the conditions imposed by the planning commission on the conversion and after the tentative map had been approved, but before defendants had obtained a building permit in connection with the remodeling, and before the units were sold in bulk to 560 Presidio, Inc. or as individual units to the various individual buyers.   Defendants contend that the 1975 version of the Subdivision Code—which did not regulate re-sales—applied to the transactions at issue, and that by selling the units in bulk first to 560 Presidio, Inc. they could then resell the units to the individual buyers without having to comply with the restrictions imposed by the code and by the board of supervisor's conditional approval of the tentative map.

Defendants argue that to apply the 1979 version of the Subdivision Code to them would be an impermissible retroactive application of law.   However, while the power to enact laws includes the power to fix a future date on which a particular law will become operative, the ordinary rule is that a statute's operative date is the date it becomes effective (Johnston v. Alexis (1984) 153 Cal.App.3d 33, 40, 199 Cal.Rptr. 909), here, July 6, 1979.   Therefore, the issue is not, as defendants argue, whether the 1979 version of the code might be applied retroactively,³ but whether defendants gained a “vested property” right under the 1975 version of the code which estopped the application of the newly amended law to the relevant transactions.

“An equitable estoppel requiring the government to exempt a land use from a subsequently imposed regulation must include (1) a promise such as that implied by a building permit that the proposed use will not be prohibited by a class of restrictions that includes the regulation in question and (2) reasonable reliance on the promise by the promisee to the promisee's detriment.”  (Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 867, 201 Cal.Rptr. 593, 679 P.2d 27.)

 A vested right does not arise simply because the property at the time of the development of the plan was zoned in a particular way or because a tentative map was approved based on regulations then in effect.  (Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 793, 132 Cal.Rptr. 386, 553 P.2d 546.)  “[T]he rights which may ‘vest’ through reliance on a government permit [including approval of a subdivision map] are no greater than those specifically granted by the permit itself”;  i.e., the right to complete the condominium conversion and sell the units, but not the right to be free of intervening legislation.  (Santa Monica Pines, Ltd. v. Rent Control Board, supra, 35 Cal.3d at p. 866, 201 Cal.Rptr. 593, 679 P.2d 27.)   Defendants cite Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 150 Cal.Rptr. 242, 586 P.2d 556 for the proposition that such rights as vest, vest at the time a tentative map is approved.   The court in Youngblood noted that a contractor will often spend substantial sums of money to comply with the conditions of a tentative map and thus the date of approval is the crucial date when the governmental body should determine whether to permit the proposed subdivision.  (Id. at p. 655, 150 Cal.Rptr. 242, 586 P.2d 556.)   The defendants' argument that without regard to an actual change of position by the developer, there is a “magic date” upon which rights vest was rejected by Santa Monica Pines.   The right vests not because the governmental body issues anything, but because the developer has significantly changed its position in reliance upon government action.   We therefore decline to find that the date of approval of a tentative map necessarily is the date at which the developer's rights vest for purposes of intervening legislation.

 In the present case the approval of the tentative map permitted defendants to convert the apartment building into condominium units.   That right—the only relevant right conferred by the map—was unaffected by the intervening amended regulation.   In addition, there is no evidence that any defendant substantially changed its position because of the tentative map approval or because of any governmental act occurring prior to the amendment.   Each defendant in the chain of ownership purchased an apartment building which could be converted to condominiums for low- or moderate-income persons.   Defendants gained no vested right prior to the 1979 amendment by which San Francisco might be estopped from applying the amended law.

A similar conclusion was reached by the court in Briarwood Properties, Ltd. v. City of Los Angeles (1985) 171 Cal.App.3d 1020, 217 Cal.Rptr. 849.   In that case the plaintiff developer sought to convert an apartment building into condominiums.   At the time the tentative map was approved, the relevant ordinance provided that a tentative map could be disapproved when the apartments were occupied more than 50 percent by persons with minor dependent children, and/or low- to moderate-income renters, and/or disabled or elderly tenants, and the applicant had not developed a reasonable relocation assistance plan.   A year after the tentative map was filed, an additional provision was adopted which required the developer to pay relocation assistance to persons occupying a building which was to be converted to condominiums.   In reversing summary judgment requiring the City of Los Angeles to grant an exemption to the developer, the Court of Appeal found that as the new provision did not restrict the developer's right to subdivide, it did not infringe on the developer's vested rights.  (Id. at pp. 1028–1030, 217 Cal.Rptr. 849.)

Defendants attempt to distinguish Briarwood on the grounds that the ordinance there specified the time period of its application, which included the time period at issue.   As discussed above, unless otherwise indicated, a law governs from the date it becomes effective.   Section 1385 was not required to specify that it applied to any transaction occurring after its effective date in order to apply to the instant conversion.

Defendants also point out that the effect of the Briarwood ordinance was to require the developer to expend a maximum of $2,500 in tenant relocation assistance.   Defendants argue that the law discussed in that case has no application “to a San Francisco ordinance amendment that goes to the very core of a real estate transaction, i.e., price control and buyer selection.”   Defendants' focus is misplaced.   The relevant fact in Briarwood is that the new enactment did not prevent the conversion to condominiums.   Accordingly, such rights as may have vested in the developer because of the tentative map approving the conversion were unaffected by the intervening law.   The same relevant fact exists in the present case.

Having found that the 1979 version of section 1385 controlled the transactions at issue, we need not and do not address the second issue of the cross-appeal:  that “the 1975 version of section 1385 is void for vagueness and uncertainty.”

The Appeal

We have found that defendants were subject to the 1979 version of San Francisco's Subdivision Code.   The trial court determined that the defendants violated the code and that in doing so they committed unfair business practices in violation of Business and Professions Code section 17000 et seq.⁴  No appellate issue is raised as to these determinations;  however, San Francisco appeals contending that the trial court improperly determined the number of violations and improperly limited the relief awarded for these violations.

The Number of Violations

 The amended Subdivision Code required the defendants to sell the units to defined low- and moderate-income persons, and required that the units upon re-sale be offered to San Francisco under a right-of-first-refusal.   It is conceded that seven of the eight units were sold to unqualified persons.   Accordingly, San Francisco's Subdivision Code was violated seven times.   San Francisco argues that there was a further violation in the sale by Thomas Shelton Powers M.D., Inc. of the units in bulk to 560 Presidio, Inc.   The trial court reasonably determined that the number of violations was the number of units removed from San Francisco's low- and moderate-income housing.   The relevant “acts” were the removal of housing units from the market;  that this result was accomplished by means of several related transactions does not mean that each transaction must be deemed a separate act.

The Scope of Relief Available

San Francisco's complaint also sought restitution, disgorgement of profits and an order that defendants be required to provide moderate-income housing in San Francisco equal to that lost by the sale of the units at 560 Presidio.   Defendants moved to strike language in the complaint relating to disgorgement or restitution.   They argued that San Francisco's remedy under the act was limited to obtaining an injunction against future violations and an order imposing a civil penalty against defendants for each of the seven violations of San Francisco's Subdivision Code.⁵  The court granted defendants' motion.   At trial the court further found that it lacked the power to grant the type of mandatory injunctive relief San Francisco had sought:  to order defendants to in some manner replace the lost low- and moderate-income units.

 San Francisco now argues that the court erred in finding that it lacked power ancillary to a grant of injunctive relief, to compel restitution, disgorgement or some other form of relief which would prevent defendants from retaining the benefit of their wrongful acts and which would work towards making whole those who were injured by those acts.   We hold that in issuing injunctions for unfair business practices courts have the ancillary power to order restitution or disgorgement or some similar remedy designed to prevent the wrongdoer from retaining any profits gained by means of its illegal acts, and we find that such power was available in the present case and remand to the trial court so that this power may be exercised at the discretion of the superior court.

The act permits injunctive relief pursuant to section 17203:  “Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court of competent jurisdiction.   The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition ․ or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.”   Section 17204 permits prosecution of a 17203 action by a district attorney such as San Francisco's District Attorney.

Although there are few cases which have examined the remedies sanctioned by section 17203, there is little question but that the broad range of remedies provided for therein includes restitution and/or disgorgement of profits.   The statute itself expressly entitles a court to take such actions as may be necessary to prevent the use by any person of any unfair business practice, and to restore to any person in interest any property acquired by means of such a practice.   Further, although there appears to be no case which has determined if restitution and disgorgement might properly be ordered in an action brought pursuant to section 17203, it is settled that such remedies are proper in an action brought for false advertising, also an unfair practice.⁶

In Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 153 Cal.Rptr. 28, 591 P.2d 51, the court found disgorgement to be a proper remedy under section 17535, noting that by the statute's language, “the Legislature obviously intended to vest the trial court with broad authority to fashion a remedy that would effectively ‘prevent the use ․ of any practices which violate [the] chapter [proscribing unfair trade practices]’ and deter the defendant, and similar entities, from engaging in such practices in the future.   The requirement that a wrongdoing entity disgorge improperly obtained moneys surely serves as the prescribed strong deterrent.”  (Id. at p. 450, 153 Cal.Rptr. 28, 591 P.2d 51.)   In so holding, the court, citing both state and federal cases, reaffirmed a policy of refusing to permit a defendant to retain any profits resulting from an unfair business practice:  “[I]nasmuch as ‘[p]rotection of unwary consumers from being duped by unscrupulous sellers is an exigency of the utmost priority in contemporary society’ [citation], we must effectuate the full deterrent force of the unfair trade statute․  We do not deter indulgence in fraudulent practices if we permit wrongdoers to retain the considerable benefits of their unlawful conduct.  [¶] As one court has stated, ‘The injunction against future violations, while of some deterrent force, is only a partial remedy since it does not correct the consequences of past conduct.   To permit the [retention of even] a portion of the illicit profits, would impair the full impact of the deterrent force that is essential if adequate enforcement [of the law] is to be achieved.   One requirement of such enforcement is a basic policy that those who have engaged in proscribed conduct surrender all profits flowing therefrom.’  [Citations.]  ․ [T]he basic equitable principles underlying section 17535 arm the trial court with broad discretionary power to order restitutionary relief ․ A court of equity may exercise its full range of powers ‘in order to accomplish complete justice between the parties, restoring if necessary the status quo ante as nearly as may be achieved.’  [Citation.]  As we stated recently, ‘Even in the absence of the specific authorization contained in section 17535, a trial court has the inherent power to order restitution as a form of ancillary relief.’   [Citations.]”  (Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d at pp. 451–452, 153 Cal.Rptr. 28, 591 P.2d 51.)

It is thus abundantly clear that as a general rule a trial court, ruling on an unfair trade practice, has the power to order disgorgement and/or restitution as a form of relief ancillary to an injunction,⁷ and such power would be available even were it not expressly authorized by the act.   The remaining issue is whether there is something in the present case which excepts it from the general rule.

 Defendants contend that disgorgement or restitution is not a proper form of relief where there is no “person” who is a cognizable victim of the unfair business practice.   We disagree.   There are cognizable victims of defendants' wrongful acts.   Low- and moderate-income persons desiring to live in San Francisco have been deprived of seven opportunities to find affordable housing.   Further, as demonstrated by the Subdivision Code, the people of San Francisco have a real interest in providing housing for low- and moderate-income persons, and thus supporting a heterogeneous population.   Both groups—low- and moderate-income persons desiring affordable housing and the people of San Francisco in general—are “persons” within the meaning of section 17203.   The term as defined by section 17201, is sufficiently broad to cover a group of natural persons, or even a city of natural persons.

More importantly, however, we find nothing in logic or in law which supports a theory that a wrongdoer should be entitled to retain its illegal profits simply because there is no cognizable direct victim to be made whole.   Thus, even were we to accept defendants' argument that the “person” at issue is insufficiently definite to qualify under the Unfair Practices Act for restitution, we would nonetheless find that disgorgement was permitted, and properly should be made to some entity or party which is in a position to use it to correct, as much as possible, the harm wrought by the unfair practice.   As stated by the court in Fletcher v. Security Pacific Nat. Bank, supra, the laws against unfair business practices were drafted in large part to prevent a wrongdoer from retaining the benefits of its illegal acts.   That purpose would be frustrated if a party is entitled to retain its profits simply because it is difficult to exactly determine the direct victim of its acts.

Where disgorgement cannot be made to the direct victims, it should be made to an entity which can use it to benefit those victims or others in a similar position.   For example, in Market St. Ry. Co. v. Railroad Commission (1946) 28 Cal.2d 363, 171 P.2d 875 where a fund of money was established representing overcharges made by the railway company and where few patrons filed claims for refunds, the money was not returned to the railway company—which clearly was not entitled to it—but was awarded to the City of San Francisco which, having recently purchased the railway, would use the funds to improve its services.   (Id. at pp. 371–373, 171 P.2d 875.)  “In equity and good conscience it would seem that the fund should be made available for the benefit of those who were compelled to submit to this unlawful exaction․”  (Id. at p. 372, 171 P.2d 875.)

A similar procedure was followed in State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 224 Cal.Rptr. 605, 715 P.2d 564.   The Attorney General had filed a class action on behalf of persons overcharged by Levi Strauss.   The parties entered into a settlement agreement which established a fund of money to be repaid to the relevant consumers, but many did not file claims and a substantial amount of money was left after legitimate claims had been paid.   The court held that the equitable doctrine of cy pres provided a solution.   The doctrine, as applied to actions in which money was wrongfully obtained but cannot be paid to the direct victims, is called “fluid recovery.” ⁸  “The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action.  [Citations.]  Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized.   [Citation.]  Without fluid recovery, defendants may be permitted to retain ill gotten gains simply because their conduct harmed large numbers of people in small amounts instead of small numbers of people in large amounts.”  (Id. at p. 472, 224 Cal.Rptr. 605, 715 P.2d 564.)   The court found that fluid recovery permits several alternatives, including “earmarked escheat” such as occurred in Market St. Ry. Co. where the funds are distributed to a governmental body which uses them to ameliorate the effects of past harm and to reduce the risk of future harm.  (Id. at pp. 473–474, 224 Cal.Rptr. 605, 715 P.2d 564.)

Finally, in People v. Parkmerced Co. (1988) 198 Cal.App.3d 683, 244 Cal.Rptr. 22, an action brought pursuant to sections 17203 and 17206, undistributed funds representing illegal security deposits were ordered turned over to a residents' association.   The court upheld the order, thus permitting both restitution to the actual victims, and where that was impossible, disgorgement to an interested third party, finding, “[r]efunding the unclaimed securities to the organization for its use in representing the interests of the Parkmerced tenants is an appropriate disposition of the penalty funds.”   (Id. at p. 693, 244 Cal.Rptr. 22.)

Defendants point out that each of the above cases concerned a situation different from that in the present case.   In all three cited cases the direct victims were more cognizable than the victims in the instant action, as each resulted from an improper charge levied against specific persons.   In addition, Levi was a class action and the fund in Parkmerced, although in fact representing disgorgement, was obtained as a civil penalty pursuant to section 17206.  (The section permits calculation on a “per victim” basis.   The civil penalty assessed by the trial court appeared to be the sum of the improper assessments divided by the number of persons improperly assessed.   (Id. at p. 692, 244 Cal.Rptr. 22.))

These distinctions, while real, are irrelevant.   The underlying rationale of each case was that both the equities of the situation and the necessity for deterring future wrongful acts, required that the wrongdoer be prevented from retaining the illegal profits.   Given that the wrongdoer should not retain the profits, the question became to whom the profits should go.   Where it was possible to refund a direct victim, the victim was refunded.   Where it was not possible, the theory of fluid recovery permitted an award of the funds to an interested third party.   The cases did not turn on the ability to name specific persons as victims, but on the equities of preventing the defendant from benefiting from the illegal transaction and of reversing the harm of the wrongful act to the greatest extent possible.   We see no reason why a different result should be reached here.

 Defendants argue that a construction of section 17203, which would permit “disgorgement to the State,” renders the section unconstitutionally vague, apparently advancing a theory that one who commits a wrongful act should be made aware not only that it is wrong, but to whom restitution might later be made.   We are aware of no authority supporting such a theory.   Rather, “A statute will not be declared void as being indefinite if it contains ‘a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided.’ ”  (People v. Hallner (1954) 43 Cal.2d 715, 720, 277 P.2d 393;  People v. Ali (1967) 66 Cal.2d 277, 280, 57 Cal.Rptr. 348, 424 P.2d 932.)   Nor can we agree that our construction of the statute in any way deprives defendants of property without notice.   Any affected defendant would not be entitled to the property disgorged and thus has no ownership interest in it.

 For all the reasons stated above, we find that the trial court improperly determined that it was limited in fashioning a remedy to the assessment of civil penalties pursuant to section 17206.  “ ‘ “Equity does not wait on precedent which exactly squares with the facts in controversy, but will adjust itself to those situations where right and justice would be defeated but for its intervention.”  [Citations.]’ ”  (People v. Custom Craft Carpets, Inc. (1984) 159 Cal.App.3d 676, 684, 206 Cal.Rptr. 12.)   We do not here determine if defendants in fact obtained illegal profits.   That is a matter for the trial court, as is the question of the proper disposition of any illegal profits found by it to have been obtained.   We hold only that the court erred in determining that it lacked the power to enforce any remedy other than a preventative injunction and statutory penalties.

The judgment is reversed insofar as it denies the State further injunctive relief.   In all other respects the judgment is affirmed.   The action is remanded to the superior court for further proceedings consistent with our opinion.   Costs are awarded to the People.

FOOTNOTES

1.   The resolution specifically provided, “The price of the units upon conversion shall not exceed $46,125.00.”   It appears, however, that the amount stated was not intended to be an absolute ceiling on the price, but to reflect market prices of low- or moderate-income units.

2.   The 1975 version of section 1385 of San Francisco's Subdivision Code provided:“Conversions shall meet the following requirements ․“(b) The City Planning Commission shall determine whether any units to be converted are part of the City's low or moderate income housing stocks.   If the Commission determines that any unit to be converted is part of the City's low or moderate income housing stocks, then the price of the unit upon conversion shall not be such as to remove it effectively, from said low or moderate income housing stocks.”The 1979 amendment added the following at the end of section 1385:“and shall be no greater than two and one half (2.5) times the highest income level for low and moderate income households․  If the tenant does not exercise the contract right to purchase the unit which has been determined to be part of the low or moderate income housing stock, then the unit shall be made available exclusively for purchase by qualified households of low or moderate income on a first-come, first-served basis for a period of not less than twelve (12) months from the date of recordation of the Parcel Map or Final Map at a price no greater than that allowed under the low and moderate income price guidelines set forth above․  The reconveyance of any unit purchased pursuant to the price restriction formula of this section shall be subject to the resale restrictions as set forth in Section 1341(b) [sic;  the resale restrictions are set forth in section 1341, subd. (c) ].  In cases where no low or moderate income household has purchased or contracted to purchase such unit within this twelve (12) month period, after good faith efforts by the subdivider, the subdivider may offer the unit to the general public with no price limitation.”Section 1341, subdivision (c) as relevant required persons who had purchased low-income units and wished to sell them, to “grant a right-of-first-refusal to the City and County of San Francisco, or to such other entity that at a future time may be designed [sic] by the City and County of San Francisco, to repurchase the dwelling from the initial purchaser at the original price plus the cost of any improvements paid for by the owner, plus an increase proportionate to the increases in the housing component of the ‘Bay Area Cost of Living Index, U.S. Dept. of Labor’, over the intervening time period.”

3.   Defendants cite Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585, which reiterates that laws ordinarily will be applied only prospectively.   The sale of the building as a whole to 560 Presidio Inc., and the subsequent sale of the individual units occurred after July 6, 1979.   Thus, the amended version of San Francisco's code was applied prospectively.

4.   Unless otherwise indicated, all further references to a code will be to the Business and Professions Code.

5.   Section 17206 provides, as relevant, “(a) Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by ․ any district attorney ․”

6.   Section 17535, in language nearly identical to that of sections 17203 and 17204, provides that certain district attorneys may prosecute an action for injunctive relief and defines the type of action:  “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.   The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person, corporation, firm, partnership, joint stock company, or any other association or organization of any practices which violate this chapter, or which may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of any practice in this chapter declared to be unlawful.”

7.   Defendants cite Industrial Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1093, 257 Cal.Rptr. 655 for the proposition that damages may not be awarded in an action brought pursuant to section 17203.   An order of restitution/disgorgement in a 17203 action is not an order of damages, and as San Francisco did not and does not seek damages in the present case, Industrial Indemnity is inapplicable.

8.   The court in Levi, while discussing the doctrine of “fluid recovery” in connection with a class action, cited Market St. Ry. Co. as an early example of the method, noting that a class action was not involved in that case, thus recognizing that the doctrine is not confined to class actions.  (State of California v. Levi Strauss & Co., supra, 41 Cal.3d at p. 474, 224 Cal.Rptr. 605, 715 P.2d 564.)

STEIN, Associate Justice.

NEWSOM, Acting P.J., and HOLMDAHL, J., concur.