Last September, the Supreme Court granted review in Nationwide Biweekly Administration v. Superior Court, no. S250047, which presents the following issue (according to the docket):
Is there a right to a jury trial in a civil action brought by the People, acting through representative governmental agencies, pursuant to the Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq.), the False Advertising Law (Bus. & Prof. Code, § 17500, et seq.) or the Check Sellers, Bill Payers, and Proraters Law (Fin. Code, § 12200, et seq.), when the People seek statutory civil penalties among other forms of relief?
The Court of Appeal (First Appellate District, Division One) held that there is a jury trial right in such a public prosecutor action on the question of liability. The amount of civil penalties, and the propriety of other equitable remedies (such as injunctive relief), is for the court to determine. Nationwide Biweekly Administration, Inc. v. Superior Court, 24 Cal.App.5th 438 (2018).
The panel canvassed the past UCL case law on the jury trial question, and concluded that most of the past cases considered the Sixth Amendment right to a jury trial in criminal actions, not the common-law jury trial right secured by the California constitution, on which the defendant relied. Under the common law, governmental actions seeking civil penalties were considered legal, not equitable, and were triable by jury:
[C]ontrary to the People’s assertion, there is no line of cases holding that there is no right to jury trial in a UCL enforcement action brought by the government and seeking statutory penalties. Rather, there is a line of cases holding that the Sixth Amendment right to jury trial in criminal cases is inapplicable to the UCL—a proposition with which we agree. Only one case, Bhakta, has concluded there is no right to a jury trial in a UCL enforcement action under article I, section 16 of the California Constitution. However, as we have discussed, in our view the Bhakta court’s analysis was incomplete and failed to take into account that statutory penalties are a significant remedy under the UCL and such penalties, under historic English common law, would have been sought in the courts of law, thus securing to defendants the right to jury trial. [Citations.]
Id. at 460-61 (citing People v. Bhakta, 162 Cal.App.4th 973 (2008)).
In a footnote, the panel considered one of the leading cases holding that UCL actions between private litigants carry no jury trial right:
The Bhakta court cited Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 284 (Hodge), for the proposition that the UCL provides for “only equitable remedies.” (Bhakta, supra, 162 Cal.App.4th at p. 979.) Hodge, however, was a wage and hour case in which the plaintiff employees sought back wages for overtime. (Hodge, at pp. 281–282.) The defendant employer claimed it had a right to jury trial because its liability was based on conduct that was “unlawful” under the Labor Code. (Id. at p. 283.) The Hodge court concluded otherwise, stating “the UCL provides only for equitable remedies,” “[d]amages are not available.” (Id. at p. 284.) Thus, said the appellate court, “the UCL is not simply a legislative conversion of a legal right into an equitable one. It is a separate equitable cause of action.” (Ibid.) In short, the Hodge court was not called upon to address, nor did it, the issue of statutory penalties sought in a government enforcement action.
Furthermore, in observing that other courts had held there is no jury trial right under the UCL, the Hodge court cited to [three cases] all holding that there is no Sixth Amendment right to jury trial under UCL, a conclusion with which we agree but which is not apposite to the right to jury trial in a civil case. (Hodge, supra, 145 Cal.App.4th at p. 285.)
Id. at 460 n.11 (emphasis in original; hyperlink added). For more on Hodge, see my original blog post on that opinion.
It will be interesting to see what, if anything, the Supreme Court has to say about Hodge or other decisions on the jury trial right in private UCL actions. As of April 5, 2019, the merits briefing in Nationwide Biweekly is complete.
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