New UCL public prosecutor decision: People ex rel. City of Santa Monica v. Gabriel

The Court of Appeal's opinion in People ex rel. City of Santa Monica v. Gabriel, ___ Cal.App.4th ___ (Jul. 14, 2010) (Second Appellate District, Division One) has two holdings of note. 

First, sexual harassment of a residential tenant by her landlord constitutes a "business act or practice" remediable under the UCL.  Slip op. at 5-6.  Landlord-tenant sexual harassment violates several statutes and municipal ordinances, and the city attorney brought the case as a UCL "unlawful" prong claim.  See id. at 2.  (Of course, the city attorney need not worry about Prop. 64 standing or whether anyone "lost money or property" as a result of the defendant's conduct.  See Bus. & Prof. Code § 17204.) 

Second, attorneys' fees are not recoverable under the UCL, even if the "borrowed" law has a fee-shifting provision.  Slip op. at 7-10.  The Court of Appeal reached a similar conclusion last November in Davis v. Ford Motor Credit Co., 179 Cal.App.4th 581 (2009), affirming denial of a prevailing defendant's attorneys' fees motion in an "unlawful" prong case in which the "borrowed" law would have permitted fee-shifting if the action had been brought directly under that law.  Id. at 599-601.  The Gabriel opinion does not mention Davis. 

See this blog post for a discussion of the attorneys' fees holding in Davis.