Earlier this year, the Court of Appeal (Fourth Appellate District, Division Three) handed down its opinion in Solus Industrial Innovations, Inc. v. Superior Court, 224 Cal.App.4th 17 (2014), review granted.
Solus is a UCL public prosecutor action for civil penalties for alleged violations by an employer of California's workplace safety standards. The defendant argued that the claim was preempted by federal law; the Orange County District Attorney's office argued that because the U.S. Secretary of Labor had approved California's safety standards, California may enforce them by any mechanism approved by the Legislature, including the UCL.
The Court of Appeal disagreed, based largely on a curious misunderstanding about when the UCL was first enacted:
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 my blog post on the Court of Appeal's opinion in this case, I wrote as follows:
In fact, the UCL was enacted in 1933. .... 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.
According to the Solus opinion, California's workplace safety plan was not even enacted until 1973, and was approved by the Secretary of Labor the same year — after the Legislature amended the UCL in 1972 to allow public prosecutors to seek civil penalties for any unlawful, unfair or fraudulent conduct. The misunderstanding in the paragraph of the opinion quoted above, therefore, may have been outcome-determinative.
The Orange County District Attorney's office filed a petition for review, and on June 16, 2014, the California Supreme Court issued this order:
The petition for review is granted. The cause is transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions to reconsider the matter in light of Statutes 1972, chapter 1084, pp. 2020-2021.
Solus Industrial Innovations v. Superior Court, No. S217651 (emphasis added).
It will be interesting to see the new opinion when it is handed down.