PEOPLE v. Wells Fargo Bank, National Association, Defendant, Respondent and Cross-Appellant. (1978)

OPINION

The People of the State of California appeal from judgments relating to eight causes of action which were entered in favor of Vernon J. McKale dba Skys Haven Mobile Home Park (the Park), Loren and Rose Crocker (the Crockers) and Wells Fargo Bank, National Association (Wells Fargo), following the sustaining without leave to amend of the general demurrers to each of the 59 causes of action of the People's second amended complaint. Wells Fargo cross-appeals from the order denying attorney fees.

We conclude (1) the allegations of false advertising and anti-Semitic discrimination during 1976 establish valid causes of action as to the Park and the Crockers only and affirm the orders in favor of Wells Fargo and reverse as to the Park and the Crockers as to the 13th and 57th causes of action; (2) the 59th cause of action is cumulative in that it merely incorporates the allegations of the 14th through 58th causes of action and affirm the orders as to it; (3) the People, through the office of the District Attorney of Riverside County, do not have standing to sue for the alleged violation of California Health & Safety Code and related sections of Title 25, California Administrative Code, and affirm the orders as to the 8th, 9th and 10th causes of action; and (4) the People have failed to state a cause of action for the alleged violations of Civil Code sections 789.5, subdivisions (d)(3), (5) and (e), 789.7, subdivisions (b), (c) and (d) and affirm the orders as to all defendants as to the 11th and 12th causes of action. We also hold this is a case in which attorney fees may be awarded to Wells Fargo, as the prevailing party under Civil Code section 789.12.

1. The Demurrer

It may be salutary before discussing the facts as alleged in the second amended complaint to pause briefly to examine the rules of law relating to the nature and purpose of a general demurrer. The pause is necessary so that we, as well as counsel, can direct our energies toward the legal issues which confront us rather than being diverted by the emotionalism and hostility permeating this litigation. We must remind ourselves “in testing the sufficiency of a pleading against a general demurrer, all well-pleaded allegations, including those that arise by reasonable inference, are deemed admitted irrespective of the difficulty of proof at trial. (Citation.) The allegations are to be liberally construed with a view to substantial justice between the parties.” (King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857; Mel H. Binning, Inc. v. Safeco Ins. Co. (1977) 74 Cal.App.3d 615, 620, 141 Cal.Rptr. 547; Pena v. Superior Court (1975) 50 Cal.App.3d 694, 701, 123 Cal.Rptr. 500; Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151, 117 Cal.Rptr. 525, 528.) The implied requirement of solicitude by a trial court in its interpretation of a pleading to allow a determination of a case on its merits rather than on rules of pleading diminishes with continuing, but unsuccessful efforts by a litigant, to state a cause of action. (See, e. g., Ruinello v. Murray (1951) 36 Cal.2d 687, 690, 227 P.2d 251.) The problem may rest with the facts and not with the pleader. (See Dukes v. Kellogg (1900) 127 Cal. 563, 565, 60 P. 44.)

2. General Background

This case involves the maintenance and operation of the Skys Haven Mobile Home Park in the County of Riverside. On April 13, 1976 the People filed a complaint containing nine causes of action against the Park requesting damages and injunctive relief for violations of the California Health & Safety Code and related sections of the California Administrative Code pertaining to the operation of a mobile home park. Thereafter, a first amended complaint containing 13 causes of action was filed against the same party. After the Park's special demurrer was sustained to 11 causes of action, a second amended complaint was filed containing 59 causes of action against the Park, the Crockers and Wells Fargo. This complaint alleges in the most meticulous detail violations ranging from allowing waste water to be deposited upon the grounds of the Park (Health & Saf.Code, s 18554) to practices of discrimination against Jews. Basically the People, through the office of the district attorney, contend that the innumerable violations in the maintenance and operation of the Park commencing in late 1975 to the present warrant imposition of penalties and a permanent injunction against the owner of the Park (McKale), its managers, the Crockers, and Wells Fargo. As to Wells Fargo it is specifically alleged it was in possession and control of the mobile home park from about January 1975 through December 18, 1975.

3. Standing to Sue

The traditional role of the district attorney to prosecute violations of the Penal Code in criminal actions has in recent years been modified. As a result of increased consumer awareness and the need for consumer protection, California law enforcement agencies are now involved in proceedings which protect the consumer against fraud and misrepresentation in the sale of foods, services and real property. (See Bowley, Law Enforcement's Role on Consumer Protection, 14 Santa Clara Law., pp. 555, 557.) Typical of many offices of district attorneys in California, the District Attorney of Riverside County has established a Consumer Fraud Business Protection Division, which represents the People in this case.

The two primary statutory sources which permit district attorney involvement are Business & Professions Code sections 17500 to 17538.7 and Business & Professions Code sections 17200 to 17208.¹ The thrust of former sections is to protect the consumer while the latter relate to the protection of those in business to terminate unfair competition resulting from the fraudulent business practices of a competitor. Their respective purposes coincide and mesh in Business & Professions Code section 17200 which includes in its definition of unfair competition “. . . any act prohibited by Chapter I (commencing with section 17500) of Part 3 of Division 7 of the Business & Professions Code.” California Business & Professions Code sections 17204 and 17535 expressly authorize the district attorney to prosecute actions for an injunction for violations of each section, and Business & Professions Code sections 17206 and 17536 authorize the collection of the civil penalties which are to be assessed for any such violation. Both the consumer protection and unfair competition statutes provide that the remedies and penalties are cumulative to each other and the remedies or penalties available under all other laws of the state. (Bus. & Prof.Code, ss 17205, 17534.5.) In addition to the permanent injunction and the penalties allowed by statute, a court has the inherent power to order ancillary relief consistent with the nature of the fraud. (See People v. Superior Court (Jayhill Corporation) (1973) 9 Cal.3d 283, 286, 107 Cal.Rptr. 192, 507 P.2d 1400; Bus. & Prof.Code, s 17535.)

Concurrent with increased involvement by the district attorney with consumer protection is the broadened definition of unfair competition. Business & Professions Code section 17200² defines unfair competition, in pertinent part, as including “unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising . . ..” The Supreme Court in Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 112-113, 101 Cal.Rptr. 745, 758, 496 P.2d 817, 830, has interpreted the phrase “unlawful business practice” as referring to “ ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ” In other words, any conduct forbidden by law practiced as a pattern by a business establishment constitutes an unlawful business practice. This broad standard of “unlawful” business practices provides the consumer protection division of a district attorney's office with considerable latitude in electing which improper business practices warrant its energies.

The power of the district attorney to champion causes is not, however, unlimited. They hold statutory powers, and not a roving commission to do justice. (See Safer v. Superior Court (1975) 15 Cal.3d 230, 239, fn. 13, 124 Cal.Rptr. 174, 540 P.2d 14.) The district attorney can exercise the power of his office only in civil litigation which the Legislature has found essential and even in those matters only within the defined parameters of the enabling legislation. (See Safer v. Superior Court, supra, at p. 236, 124 Cal.Rptr. 174, 540 P.2d 14.) There are certain cases which are left solely to private litigants to resolve without the use of public funds or powers while there are other cases which require the presence of a public officer because of the limitation of relief available to private parties. (See Safer v. Superior Court, supra; Chern v. Bank of America (1976) 15 Cal.3d 866, 875, 127 Cal.Rptr. 110, 544 P.2d 1310.)

4. False Advertising & Discriminatory Business Practices (The 13th, 57th and 59th Causes of Action)

False Advertising

The 13th cause of action seeks civil penalties for deceptive, untrue and misleading advertising by the Park as being for “adults only”. Presumedly, the cause is predicated upon Business & Professions Code sections 17200 et seq., as well as 17500 et seq. The paragraphs allege defendants advertised the Park as being for adults only on outdoor signs located in front of the park and in a local newspaper. However, on several occasions during 1976, they leased park spaces to families with children, residing together. In light of the cited statutory schemes, the district attorney has standing to bring the cause of action in question, which has been adequately pled to withstand a demurrer.

Discriminatory Business Practices

The 57th cause of action spells out a pattern of discriminative business conduct on the part of the Park toward Jewish applicants and tenants, varying from instances of the use of abusive language by the managers to discriminative sales and lease policies. The factual allegations read together set forth a scenario of conduct constituting a pattern of discriminative business practices against Jews.

Health & Safety Code section 35700 provides in pertinent part:

“The practice of discrimination because of race, color, religion, sex, marital status, national origin, or ancestry in housing accommodations is declared to be against public policy.”

Further, more emphatically, Health & Safety Code section 35720(1, 4) currently states:

“It shall be unlawful:

“1. For the owner of any housing accommodation to discriminate against any person because of the race, color, religion, sex, marital status, national origin, or ancestry of such person. (1977 Amendment)

“. . . th

“4. For any person subject to the provisions of Section 51 of the Civil Code, as that section applies to housing accommodations, as defined in this part, to discriminate against any person because of race, color, religion, sex, marital status, national origin, or ancestry with reference thereto.”

In addition, the Unruh Civil Rights Act (Civ.Code, s 51) declares in relevant part:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Finally, Civil Code section 51.5 provides:

“No business establishment of any kind whatsoever shall discriminate against, boycott, or blacklist, refuse to buy from, sell to, or trade with any person in this state because of the race, creed, religion, color, national origin, or sex of such person or of such person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers.”

The foregoing statutes clearly establish the unlawfulness of the alleged discriminative practices on the part of the defendant business establishment against Jews. After finding that such unlawful conduct has been properly pled, we now must determine whether the district attorney has standing to prosecute the cause. We conclude he does. Enforcement by the State Fair Employment Practice Commission or the Attorney General is not exclusive.

It is a basic maxim of statutory construction that “(E)very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.” (Morrison v. Unemployment Ins. Appeals Bd. (1976) 65 Cal.App.3d 245, 250, 134 Cal.Rptr. 916, 918.) Further, when we take into consideration “ ‘. . . the policies and purposes of the act, the applicable rule of statutory construction is that the purpose sought to be achieved and evils to be eliminated have an important place in ascertaining the legislative intent. (Citation omitted.) . . . (A)nd, ‘That construction of a statute should be avoided which afford an opportunity to evade the act, and that construction is favored which would defeat subterfuges, expediencies, or evasions employed to continue the mischief sought to be remedied by the statute, or to defeat compliance with its terms, or any attempt to accomplish by indirection what the statute forbids.’ ” (Freedland v. Greco (1955) 45 Cal.2d 462, 467-468, 289 P.2d 463, 466.)

With the foregoing in mind, our conclusion the district attorney has standing to prosecute the cause in controversy is fortified, since the alleged discriminative activity falls within conduct proscribed by Business & Professions Code section 17200 for which the district attorney has standing to enforce under Business & Professions Code sections 17204 and 17206 (Supra ). When we consider the purpose behind section 17200, the liberal Barquis interpretation of the enactment, the problems of the marketplace sought to be swiftly curbed by enforcement at the local level by the district attorney's office and the avoidance of multiple lawsuits, it becomes apparent the whole statutory scheme in question can be harmonized only through a practical construction that forgoes drawing by implication of exclusive jurisdiction in the Commission and the office of the Attorney General for enforcement of the prohibition against unlawful discriminatory practices within a business setting. It would be anomalous to allow a district attorney to bring an action for unfair competition in certain business matters, but deny him that prerogative when the economic setting also includes discrimination based upon race, religion or color. We must cast aside a technical interpretation of the relationship of the statutes in controversy which reaches a contrary conclusion, for there is no logical or practical reason to exclude, at the local level, the district attorney from prosecuting the type of matter present in the case at bench.

Our conclusion is not contrary to the rules set forth in Safer v. Superior Court, supra, 15 Cal.3d 230, 124 Cal.Rptr. 174, 540 P.2d 14, since we find authorization for the district attorney's prosecution of the 57th cause of action in Business & Professions Code section 17200 et seq.

The second amended complaint states that these violations in the 13th and 57th causes of action occurred during the year 1976 when Wells Fargo was not in any position of control according to plaintiff's own pleadings. A trial court need only have a finite amount of patience in dealing with a faulty pleading. (See 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, s 848, pp. 2451-2452.) The trial court was well within its discretion in sustaining the demurrer without leave to amend as to Wells Fargo. We reverse as to the Park and the Crockers.

The 59th cause of action is merely cumulative. The orders as to that cause of action are affirmed.

5. Violations of California Health & Safety Code and Related Sections of California Administrative Code (The 8th, 9th and 10th Causes of Action)

A far different situation presents itself with reference to the role of the district attorney and the alleged violations by the respondents of the Mobile Home Parks Act. (Health & Saf.Code, s 18200, et seq.) In an effort to deal with some of the problems affecting mobile home owners the Legislature responded in 1967 by enacting a new act which dealt primarily with the health and safety aspects of mobile home parks.

The Commission on Housing and Community Development was charged with the responsibility for enforcement of the provisions of the comprehensive legislation and related regulations to be applied statewide. The hierarchy of responsibility is carefully spelled out in the statute delineating when and under what circumstances a city or county can act. (See Health & Saf.Code, s 18300.) The only section which expressly authorizes the district attorney to become involved in the operation of the act is Health & Safety Code section 18402 which provides that the district attorney of the county shall bring an action to abate a nuisance, but only after the owner or operator of the park has been given written notice by the enforcement agency. The enforcement agency is the Department of Housing & Community Development or any city or county which has assumed responsibility under Health & Safety Code section 18300. Chapter 3 of the act, commencing with section 18400, entitled “Enforcement, Actions, and Proceedings,” identifies the enforcement agency as the responsible governmental entity to assure compliance with the myriad of rules and regulations established by the act and promulgated by the Commission of Housing and Community Development. (See Health & Saf.Code, ss 18400, 18401, 18404.) Health & Safety Code section 18404 specifically states it is the enforcement agency which will institute the appropriate action to prevent, restrain, correct or abate the violation. The necessity of uniform and orderly regulation of the extensive provisions of this legislation requires that the enforcement agency, or if it fails to act, the Department of Housing and Community Development, must be the plaintiff in civil litigation relating to violations of the Mobile Home Park Act.

In the case at bench there is no allegation that the district attorney is acting on behalf of the enforcement agency or that any of the notice requirements of the statute have been met. In the absence of those necessary allegations, which the district attorney has had ample opportunity to plead, the sustaining of the general demurrers without leave to amend as to the 8th, 9th and 10th causes of action was proper.

6. Violations of Civil Code Sections 789.5, Subdivisions (d)(3), (5) and (e), 789.7, Subdivisions (b), (c) and (d) and (The 11th and 12th Causes of Action)

The 11th cause of action specifically seeks civil penalties pursuant to Business & Professions Code section 17206 relating to conduct which allegedly constitutes an unlawful business practice under Business & Professions Code section 17200. The conduct complained of was alleged on information and belief as follows: “that on or about December 1975 and continuing thereafter into 1976, Defendants have issued to the tenants of SKYS HAVEN rules and regulations which said tendants (sic) were required to sign;” “ that a paragraph in the rules and regulations provides that the tenants must pay a pet fee of $3.00 per month, which provision is in violation of Section 789.7(b) of the . . . Civil Code;” “that a paragraph in these rules and regulations provides that the tenants must pay a charge of $5.00 per month for each guest, which paragraph is in violation of Section 789.7(c) of the . . . Civil Code;” “that a paragraph in these rules and regulations provides that any breach by a tenant's guest of park regulations will be sufficient grounds for the Defendants to terminate said tenant's tenancy. Such paragraph is in violation of Section 789.5(d) of the . . . Civil Code;” “that a paragraph in these rules and regulations provides that the Defendants can close the recreation hall at any time and exclude any resident or guest from that recreation hall. This provision is in violation of Section 789.5 of the . . . Civil Code;” and “that Defendants have made a change in the use of SKYS HAVEN MOBILE HOME PARK from a mobile home park to a combinationpark (sic) without providing tendants (sic) with the proper twelve months' written advice as provided in . . . Civil Code section 789.5(5) (sic: 789.5(d)(5).)”

The foregoing allegations fail to state facts establishing a cause of action for an unfair or unlawful business practice.

Sections 789.5 and 789.7 are part of a statutory scheme regulating the termination of tenancies in a mobile home park and the levying of fees by operators on the tenants. Although indirectly they may affect the content of a park's rules and regulations, they do not purport to regulate the content directly.³ Here, the pleading is devoid of either of the necessary allegations defendants terminated any tenancy contrary to the mandate of section 789.5 or collected any fees in violation of section 789.7.

There is no allegation that the defendants have failed to comply with Civil Code section 789.9 which requires Civil Code sections 789.4 through 789.14 be included in writing within either the rules and regulations of the Park, or the rental agreement. Because of this requirement of statutory inclusion within either the rules and regulations or the rental agreement, it is difficult in the context of the pleadings at bench to determine how the tenants could possibly be misled or how the defendants could possibly expect to profit from the purposeful inclusion in the rules and regulations of the provisions allegedly in conflict with the statutory scheme in controversy.

Moreover, the district attorney's conclusion that a change in the use of a mobile home park without 12 months' written notice to tenants violates Civil Code section 789.5 is in error. Subdivision (d)(5) of the section specifies that one lawful reason for terminating tenancies in the mobile home park is “(c)ondemnation or change of use of the mobilehome park.” If the operator of the mobile home park intends to terminate a tenancy for that reason, however, “the management shall give 12 months' written advice to the tenant and prospective tenants that a proposed change of use is contemplated.” The 12 months' notice is required only as a condition precedent to the termination of a tenancy. It is not alleged defendants attempted to terminate any tenancy on account of change of use without the proper notice.

In addition, the allegations that certain provisions are “in violation of” section 789.5 or 789.7 are inadequate to place at issue their respective legality. Without supporting facts showing illegality, an allegation that certain conduct is illegal or unlawful or in violation of a specific statute is a pure conclusion of law. (E. g., Baker v. Miller (1923) 190 Cal. 263, 267, 212 P. 11; Joyce v. Tomasini (1914) 168 Cal. 234, 237-238, 142 P. 67; Taliaferro v. Wampler (1954) 127 Cal.App.2d 306, 308, 273 P.2d 829; 3 Witkin, Cal.Procedure (2d ed. (1971) Pleading, s 272, pp. 1944, 1945.)

Furthermore, on the facts alleged, it appears the district attorney's conclusions that the rules and regulations alluded to are in violation of Civil Code sections 789.5 or 789.7 are incorrect. Civil Code section 789.4 which contains the Legislature's findings and declaration of intent with respect to all the sections following states: “(B)ecause of the high cost of moving mobilehomes, the potential for damage resulting therefrom, the requirements relating to the installation of mobilehomes, and the cost of landscaping or lot preparation, it is necessary that the owners of mobilehomes required to be moved under permit upon the highways occupied within mobilehome parks be provided with the unique protection from actual or constructive eviction afforded by Sections 789.5 to 789.11, inclusive.” (Emphasis added.) Hence, sections 789.5 and 789.7 apply only to mobile homes “required to be moved under permit” upon the highways. The applicability of section 789.5 is expressly so limited by subdivision (b) of that section. The People have failed to allege anywhere in the second amended complaint that any mobile home or trailer coach required to be moved under permit is located at the park or that any of the tenants involved are residing in such a mobile home or trailer coach on the park property.

Finally, a comparison of the factual allegations with the statutory provisions asserted to have been violated demonstrates the former allegations are both pure, as well as erroneous, conclusions of law. In regard to Section 789.5(e), it only prohibits the denial of the use of recreation halls to tenants for meetings “Relating to mobilehome living and affairs.” The allegation of a rule providing defendants can close the recreation hall at any time and exclude any resident therefrom does not allege a violation of the statute. Such a rule would undoubtedly be interpreted consistently with the subdivision prohibiting denial of use for the one special purpose. Particularly is this so when it is borne in mind that the very language of subdivision (e) is required by section 789.9 to be included in either the rules and regulations or the rental agreement, and no failure to comply with section 789.9 is alleged.

Section 789.5(d)(3) provides that, by complying with certain notice and procedural requirements, the operator may terminate a tenancy for “(f)ailure of the tenant to comply with reasonable rules and regulations of the mobilehome park . . . .” The allegation a provision in the rules and regulations declaring a breach by a tenant's guest of park regulations will be sufficient grounds for termination violates this subdivision is unjustified. Attribution of a tenant's guest's violation of park rules and regulations to the tenant, given the statutory notice requirements, would constitute no more than a reasonable interpretation of the subdivision. Otherwise park operators would have no way to insure the compliance of guests with the park's reasonable rules and regulations.

Section 789.7(b) provides: “Tenants shall not be charged for keeping pets in the park unless the park management actually provides special facilities or services for pets. If special pet facilities or services are maintained the charge shall reasonably relate to the cost and maintenance of the facility or services in relation to the number of tenants owning pets.” The allegation that a rule requires tenants to pay a pet fee of $3 per month without any factual allegation as to whether special pet care services or facilities are provided and the reasonableness of the charge does not establish a violation of the statute.

Section 789.7(c) provides: “No extra charge shall be made for guests of a tenant who do not stay with the tenant more than a total of 14 days in any calendar month.” The allegation the tenants must pay $5 per month per guest violating Section 789.7(c) is, by itself, hopelessly ambiguous, since a charge of $5 per monthly stay would be in accordance with the section, while a monthly charge of $5 per guest regardless of the duration of the stay would be in conflict with the section.

Therefore, we conclude the 11th cause of action does not state facts sufficient to show an unlawful business practice, and the demurrers were properly sustained.

The 12th cause of action incorporates all of the substantive allegations of the 11th and seeks injunctive relief with respect to the same alleged unlawful business practice as alleged in the 11th cause of action.⁴ The 12th cause of action, therefore, suffers every defect and insufficiency found in the 11th and, like the 11th, does not state facts sufficient to show any unlawful business practice.

7. Attorney Fees

Wells Fargo cross-appeals from the order denying its request for attorney fees contending that this case arises under Civil Code sections 789.5 to 789.11 which entitle the prevailing party to reasonable attorney fees and costs.⁵ We agree.

Civil Code section 789.12 provides in pertinent part that: “In any action arising out of Sections 789.5 to 789.11, inclusive, the prevailing party shall be entitled to reasonable attorney's fees and costs. . . .” As to Wells Fargo, there is no question the 11th cause of action, and part of the 57th cause of action, arise out of Civil Code sections 789.5 and 789.7. “Arising” does mean to “originate from a specified source” or “to spring,” (see Webster's Third New International Dictionary (1968); Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 194-195, 5 Cal.Rptr. 553, 353 P.2d 33) and it has been so defined in the interpretation of Probate Code section 707. (See Hays v. Bank of America (1945) 71 Cal.App.2d 301, 303, 162 P.2d 679.) The rights that plaintiff attempts to assert in this case do originate in those sections which authorize the granting of attorney fees.⁶ Nothing in the statute restricts the allowance of fees to counsel for the party initiating the action. If the defendant prevails, it too should be entitled to fees.

We must take the statute as we find it and construe it as it stands enacted. (See Electric L. Co. v. San Bernardino (1893) 100 Cal. 348, 352, 34 P. 819.) A statute free from ambiguity and uncertainty needs no interpretation. (See Davis v. Hart (1899) 123 Cal. 384, 387, 55 P. 1060.) The words of this statute (Civ.Code, s 789.12) are not ambiguous or uncertain requiring judicial construction. The language used is simple and the words should be given their usual and customary meaning. (See In re Alpine (1928) 203 Cal. 731, 737, 265 P. 947.)

The power of the trial court to grant attorney fees to Wells Fargo does not extend, however, to all legal services rendered to it. The only services which may be considered are those which relate to the specific causes of action which authorize the fees. At the time of hearing on this issue, it is counsel's duty to present evidence consistent with the factors set out in rule 2-107(B) of Rules of Professional Conduct to enable the trial judge to determine the proper fee.

8. Disposition

The judgments of dismissal on the 8th, 9th, 10th, 11th, 12th and 59th causes of action are affirmed as to all parties. The dismissals of the 13th and 57th causes of action are affirmed as to respondent Wells Fargo, and reversed as to respondents Crockers and Park. The order denying attorney fees, subject of the cross-appeal of Wells Fargo, is reversed.

Except as to Wells Fargo which shall be entitled to its costs on appeal, each party shall bear his own costs.

FOOTNOTES

FOOTNOTE.  

1.  At the time the within action was commenced the applicable provisions were embodied in Civil Code sections 3369 to 3370.1. Section 3369 was amended in 1977 (Stats.1977, ch. 299, p. 300, s 2). Paragraphs (2) through (6) are now contained in Bus. & Prof.Code sections 17200, 17201, 17203-17204. Section 3370 was repealed by Stats.1976, ch. 837, p. 2149, s 1. Section 3370.1 was repealed by Stats.1977, ch. 299, p. 878, s 3, see now Bus. & Prof.Code section 17206.

2.  (As did its predecessor, Civ.Code s 3369(3).)

3.  Section 789.5, subdivision (a) does prohibit provisions in any lease with a tenant by which the tenant purports to waive his rights under section 789.5. There is no allegation of any violation of this prohibition. Additionally, section 789.9 requires that all of the language of sections 789.4 through 789.14 inclusive be included either in the rules and regulations or the rental agreement. There is no allegation of any violation of this statutory requirement.

4.  The 12th cause of action also incorporates by reference the allegations of a number of paragraphs of the second amended complaint relating to alleged violations of Health & Safety Code section 18200, et seq., and related provisions of the Administrative Code. It is not necessary for us to deal with these allegations, since we have already concluded that they state no cause of action which the district attorney is authorized to prosecute.

5.  We address this issue pursuant to Code of Civil Procedure section 43. An order denying attorney fees is independently an appealable order as a final determination on a collateral matter severable from the general subject of the litigation. (See Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)

6.  It is not necessary for us to address, and consequently we do not decide herein, whether the People are entitled to attorney fees under Civil Code section 789.12 if they had prevailed on any cause of action brought under Civil Code sections 789.5 to 789.11, inclusive.

WIENER,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

KAUFMAN, Acting P. J., and MORRIS, J., concur.