In Solus Industrial Innovations LLC v. Superior Court, ___ Cal.App.4th ___ (Feb. 24, 2014; mod. Mar. 17, 2014), the Court of Appeal (Fourth Appellate District, Division Three) held that the Orange County District Attorney's action for civil penalties under the UCL was preempted by Fed/OSHA (the federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.)).
The opinion contains a couple of curious statements, such as this one:
Our assessment of whether the district attorney’s UCL causes of action are preempted by federal law begins with the observation that the UCL was enacted in 1977 (Stats. 1977, ch. 299, § 1, p. 1202), which is after the Secretary initially approved California’s workplace safety plan. Hence, there is no basis to infer that reliance on those provisions as a supplemental remedy for violation of California’s workplace safety standards was contemplated as part of the Secretary’s initial decision approving California’s plan.
Slip op. at 11 (bold added; italics in original).
In fact, the UCL was enacted in 1933. Justice Kennard's dissenting opinion in Cel-Tech contains a useful historical summary:
Our Legislature first recognized unfair competition in 1933 when it amended Civil Code former section 3369 (hereafter section 3369), which had addressed the availability of injunctive relief in general. The 1933 amendment had three aspects: It authorized injunctions in cases of "unfair competition"; it authorized the Attorney General, district attorneys, and private persons to seek such injunctions; and it defined "unfair competition" as any "unfair or fraudulent business practice and unfair, untrue or misleading advertising and any act denounced by Penal Code sections 654a, 654b or 654c." (Stats. 1933, ch. 953, § 1, p. 2482.)
In 1963, the Legislature again amended section 3369 to add "unlawful" business practices to the list of proscribed conduct. In doing so, it expanded the definition of unfair competition with respect to conduct violating statutory prohibitions, for now any business practice that violated an independent statutory duty was an instance of unfair competition that could be enjoined even if the underlying statute did not specifically authorize injunctive relief. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 112-113 [section 3369 extended to " 'anything that can properly be called a business practice and that at the same time is forbidden by law' "].) .... In 1977 the Legislature reenacted, without substantive change, the unfair competition portion of section 3369 as Business and Professions Code sections 17200, 17201, 17202, 17203, and 17204. (Stats. 1977, ch. 299, § 1, p. 1202.) In 1992, the Legislature expanded the scope of the unfair competition law to include unfair business acts as well as practices; the operative language now reads in full: "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." (Bus. & Prof. Code, § 17200.)
Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 194-95 (1999) (Kennard, J., dissenting) (emphasis added).
The UCL has allowed public prosecutors to bring suit to enjoin "unlawful" conduct since 1963. It is possible that the Court of Appeal meant to say that the provisions allowing public prosecutors to recover civil penalties in UCL actions were first enacted in the 1970s, but even those first appeared in 1972, not 1977. See fmr. Civ. Code § 3370.1 (stats. 1972, ch. 1084, p. 2021), cited in People v. Superior Court (Olson), 96 Cal.App.3d 181, 191 (1979). All that happened in 1977 was that the UCL was recodified as part of the Business and Professions Code.
Here's another curious excerpt from the Solus opinion:
Here, the district attorney proposes to utilize the UCL as a means of imposing truly massive penalties against Solus, based specifically upon its alleged violation of workplace safety laws. Significantly, and in contrast to Rose, this is not merely a private UCL cause of action, brought by a litigant who has suffered injury in fact as a result of defendant’s anti-competitive conduct, and who seeks restitution for that injury and to enjoin such conduct in the future. This is instead an action, available only to a representative of the state, which is expressly intended to penalize a party for past misconduct. (Bus. & Prof. Code, § 17206, subd. (a) [civil penalties “shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by any district attorney, by any county counsel . . . or . . . by a city prosecutor”].)
Under each of these two UCL causes of action, the district attorney seeks to recover penalties of up to $2,500 per day, per employee, for the period from November 29, 2007 to March 19, 2009. That represents a potential penalty in excess of $1 million per employee, for each cause of action. And of course, the penalties available under the UCL are cumulative, and thus would be assessed in addition to whatever penalties were directly provided for under the Labor Code (and thus directly approved by the Secretary as part of California’s state plan.) By contrast, as the district attorney acknowledges, the total penalty actually imposed by Cal/OSHA in the stayed administrative action arising out of these same violations was under $100,000.
Slip op. at 15-16 (emphasis in original).
This overlooks the fact that the UCL plainly authorizes penalties of less than $2,500 (the statute says "up to" that amount "per violation") and that the trial court has significant discretion in determining what "per violation" means. The text of section 17206(b) lists the factors the trial court must consider in determining the size of a penalty award:
In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant's misconduct, and the defendant's assets, liabilities, and net worth.
Bus. & Prof. Code § 17206(b). The Court of Appeal's analysis assumes that the maximum penalty amounts sought in the complaint would automatically be awarded, which is by no means certain.