In People ex rel. Harris v. Aguayo, ___ Cal.App.5th ___ (Apr. 26, 2017; pub. ord. May 25, 2017), the Court of Appeal (Second Appellate District, Division Two), affirmed an award of UCL restitution and civil penalties in the amount of nearly $4 million, as well as a broad permanent injunction precluding the defendants from repeating the wrongful acts comprising their "complex real estate scam."
The opinion's summary of the applicable law, which governs in public and private actions alike, reads as follows:
The UCL is a law enforcement tool designed to protect consumers and deter and punish wrongdoing. (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 503.) It prohibits any “unlawful, unfair or fraudulent business act or practice.” (§ 17200.) Each of the three types of wrongful conduct is recognized as distinct from the others. “‘“[A] practice is prohibited as ‘unfair’ or ‘deceptive’ even if it is not ‘unlawful’ or vice versa.”’ [Citations.]” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) The People may prove an unlawful act by showing virtually any violation of federal, state, or local law. (Ibid.) To show a fraudulent act, the law requires a showing that members of the public are “‘“likely to be deceived.”’ [Citation.]” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839.) The fraudulent element may be proved even if there is no evidence that anyone was “‘actually deceived, relied upon the fraudulent practice, or sustained any damage. [Citation.]’” (Prata v. Superior Court (2001) 91 Cal.App.4th 1128, 1146.)
Slip op. at 9-10. The opinion goes on to confirm the broad scope of the trial court's discretion in awarding restitution and fixing the amount of civil penalties. Id. at 21-35. As for the injunction, the opinion says this:
The trial court properly enjoined each independent act in furtherance of appellants’ wrongful scheme. [¶] Appellants assert that they know what they have done wrong, and will not “repeat mistakes of the past.” The trial court did not believe this, finding instead that they had no remorse or insight into their own wrongdoing. The trial court’s decision to enjoin each precise misdeed in appellants’ wrongful scheme was designed to ensure the protection of the public.
Id. at 37-38.
