People v. First Federal Credit Corp.People v. First Federal Credit Corp.
Opinion
Defendants and appellants First Federal Credit Corporation (First Federal), Frederick Tucker (Tucker) and Ida Lee Hansen (Hansen) (collectively defendants) appeal a judgment imposing $200,000 in civil penalties pursuant to the unfair competition law (UCL) (
The essential issue presented is whether the People had the burden of presenting evidence of defendants’ financial status as a prerequisite to the imposition of civil penalties under sections 17206 and 17536.
We conclude evidence of a defendant’s financial condition, although relevant, is not essential to the imposition of the statutory penalties, making the issue of a defendant’s financial inability a matter for the defendant to raise in mitigation. The judgment imposing civil penalties is affirmed.
Factual and Procedural Background
The matter was tried to the court. The evidence showed, inter alia, that defendants misled prospective borrowers to believe the loans were offered in conjunction with the federal govеrnment, certain borrowers found the final loan terms were substantially different than originally quoted, the loan process took much longer than promised, prospective borrowers who canceled their applications were charged cancellation fees far in excess of what was written on the original agreement, and applicants who did not pay the exorbitant
The trial court imposed total civil penalties of $200,000. In an extensive statement of deсision, the trial court based the penalties on the factors set forth in sections 17206 and 17536, both of which provide in pertinent part: “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 misconduсt occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.” (§§ 17206, subd. (b), 17536, subd. (b).)
As to the nature and seriousness of the misconduct, the trial court found the victims were lured into a position of vulnerability and suffered significant injury that seriously affected their finances. The number of violations exceeded 400. Persistence was shown by “the breadth of defendants’ conduct and actions in the face of protestations of victims in paying cancellation fees” and defendаnts’ history of adverse contact with governmental regulators. As to length of time, the misconduct originated in the late 1980’s and went on continuously for a number of years.
Defendants argued below that the evidence as to their assets, liabilities and net worth did not support a finding of significant penalties. The trial court disagreed, stating defendants had the burden to establish their financial inability to pay penalties. The trial court found the evidence of defendants’ assets was sufficient to support рenalties of $200,000. It specifically rejected Tucker’s assertion of personal inability to pay as not credible.
The trial court arrived at the $200,000 penalty as follows. It found at least 300 separate violations of
Defendants filed a timely notice of appeal from the judgment.
Contentions
Defendants contend the civil penalties must be reversed because there is no meaningful evidence of defendants’ financial condition; the trial court erred in placing the burden of introducing evidence of finаncial condition on the defendants; the trial court further erred in imposing joint and several liability for the penalties; the finding that Hansen violated the false advertising law must be reversed because it rests on insufficient evidence, and the permanent injunction is overbroad and an abuse of discretion as to her.
Discussion
1. Sections 17206 and 17536 do not require the People to present evidence of a defendant’s financial condition.
a. Statutory scheme.
The statutory scheme provides for civil penaltiеs for engaging in unfair competition
Determination of these penalties is governed by section 17206, subdivision (b) and by section 17536, subdivision (b), which contain identical language: “The court shall impose a civil penalty for each violation of this chapter. 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.” (§§ 17206, subd. (b), 17536, subd. (b), italics added.)
b. Application of usual principles of statutory interpretation supports conclusion that under sections 17206 and 17536, the People do not have the burden ofpresenting evidence of a defendant’s financial condition.
Under a plain reading of these penalty statutes, evidence of a defendant’s financial condition, although relevant, is not essential for determining the penalty.
When the words of a statute are clear and unambiguous, there is no need for statutory construction and courts should not indulge in it. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995)
The term “relevant circumstances” is preceded by the phrase “any one or more.” (§§ 17206, subd. (b), 17536, subd. (b).) Thus, giving the statutes their ordinary meaning, a defendant’s financial condition is only one of at least six relevant factors a court may consider in determining an appropriate penalty, and the court is authorized to impose a penalty based on evidence as to any one or more of the enumerated factors.
Further, the term “relevant circumstances” is followed by the phrase “presented by any of the parties to the case . . . .” (§§ 17206, subd. (b), 17536, subd. (b).) Thus, these statutes do not require the People to present evidence of a defendant’s financial circumstances. The statutes also do not require a defendant to present evidence of financial condition. If neither party presents any evidence relating to financial condition or some other enumerated factor, the court is still required to impose civil penalties based upon other relevant evidence before the court.
Duly giving significаnce to every word of the statutes, we conclude evidence of a defendant’s financial condition is merely one factor to be considered, such evidence may be presented by either party to the action, and the court is required to impose a penalty even in the absence of any evidence as to a defendant’s financial status. Had the Legislature intended to require evidence of a defendant’s financial status to be presented by the People as a prerequisite to the imposition of civil penalties
c. Case law pertaining to other statutory penalties is in accord.
Our conclusion the People do not have the burden of establishing a defendant’s ability to pay a statutory penalty pursuant to sections 17206 and 17536, making the defendant’s financial inability to pay the penalty a matter for the defendant to raise in mitigation, is consistent with case law interpreting similar statutes.
For example, in People v. Toomey (1985)
Similarly, State of California v. City and County of San Francisco (1979)
Consistent therewith is Beeman v. Burling (1990)
Likewise, Rich v. Schwab (1998)
To similar effect is People ex rel. State Air Resources Bd. v. Wilmshurst (1999)
Based on all the above, we conclude the People were not required to present evidence of defendants’ wealth in order to obtain the penalties mandated by sections 17206 and 17536. Under the statutory scheme, the trial court was required to impose civil penalties, and the issue of defendants’ financial condition was a matter the defendants could raise in mitigation.
Further, where a defendant shows a true inability to pay, the court can tailor the penalty accordingly. Although the statutory scheme provides a penalty of up to $2,500 shall be imposed for each violation (§§ 17206, subd. (a), 17536, subd. (a)), the court has broad discretion to determine the penalty amount. For example, in People v. Dollar Rent-A-Car Systems, Inc. (1989)
2. Defendants err in equating statutory penalties with punitive damages, which involve fundamentally different principles.
In Adams v. Murakami (1991)
Case law already has rejected the argument that Murakami applies to statutory penalties. Rich v. Schwab, supra,
We agree with Rich that the holding in Murakami does not apply to statutory penalties due to fundamental differences between punitive damages and such penalties. Admittedly, there are certain similarities between statutory penalties and punitive damages, and an award of statutory civil penalties has been described “as being in the nature of exemplary damages . . . .” (People v. Superior Court (Kaufman) (1974)
However, while both punitive damages and statutory penalties serve to motivate compliance with the law and to punish wrongdoers, UCL actions prosecuted by the People are fundamentally law enforcement actions brought to protect the public (People v. Pacific Land Research Co. (1977)
Further, civil penalties under the UCL are mandatory once a violation of law is established, and a penalty must be imposed for each violation. (People v. National Association of Realtors, supra,
With respect to the standard of proof, a UCL violаtion is established by the usual preponderance of the evidence. (People v. Superior Court (Kaufman), supra,
Further, the concern that juror passion or prejudice may affect a punitive damage award (Murakami, supra, 54 Cal.3d at pp. 109-110) is absent in UCL cases because there is no right to a jury trial in such cases. (People v. Toomey, supra, 157 Cal.App.3d at pp. 17-18.) Runaway jury verdicts cannot occur when there is no jury to inflamе.
Moreover, the Legislature has capped enforcement penalties under sections 17206 and 17536 at $2,500 per violation. These caps eliminate the almost limitless discretion inherent in punitive damages cases.
For all these reasons, we reject defendants’ attempt to extend the requirements
3. No abuse of discretion in penalty amount.
Having disposed of defendants’ contention the People were obligated to present evidence as to defendants’ financial condition, we now examine whether the $200,000 penalty was proper.
An award of civil penalties imposed under sections 17206 and 17536 is reviewed under an abuse of discretion standard. (People v. Custom Craft Carpets, Inc., supra,
As indicated, the trial court herein found 300 separate violations of
The reсord reflects, inter alia, First Federal’s financial statements dated July 1995 showed fee income over a 12-month period of $1,916,468 on loan volume of $58 million. The trial court also found that Tucker and Hansen lived in a house worth at least $600,000 to $700,000 in Palos Verdes Estates, with title to the property held in the name of Tucker’s mother, who lives in another state. The trial court found it was defendants’ practice to shield their assets by not holding title in their own names, while continuing to fully enjoy such assets.
Thus, although the People had no obligation to present evidence as to defendants’ financial condition, defendants did present evidence as to an alleged inability to pay, which evidence was considered by the trial court. On this record, we perceive no abuse of discretion in the $200,000 penalty assessed by the trial court.
As indicated, the trial court held defendants jointly and severally liable for the pеnalties it imposed.
As a general matter, parties may be held jointly and severally liable for unfair competition and for making false and misleading statements. (See, e.g., People v. Dollar Rent-A-Car Systems, Inc., supra,
Defendants assert the trial court erred in holding them jointly and severally liable for the civil penalties because there was no meaningful evidence of each person’s respective financial condition. For the reasons discussed earlier, this contention likewise fails.
5. Contentions relating to Hansen.
a. Hansen’s liability as a principal of First Federal for violation of the false advertising law.
Hansen contends the finding that she violated section 17500 is not supported by substantial evidence. Hansen asserts her role was that of a notary, officer manager and receptionist, and it was Tucker who selected the tаrget zip codes and designed the mailings.
In order to establish that Hansen violated section 17500, the People had to prove she did “make or disseminate or cause to be made or disseminated before the public in this state, . . . any statement . . . which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading . . . .”
With respect to violations of section 17500, the trial court found hundreds, if not thousands, of defendants’ mailers were sent out, but vеry “conservative[ly],” at least 400 misleading mailers were issued. The trial court also found Hansen was one of the two principals of First Federal, Tucker being the other. Hansen does not challenge that factual finding concerning her status.
People v. Conway (1974)
b. Given the extent of Hansen’s misconduct, the trial court acted within its discretion in fashioning an appropriate injunction.
Hansen contends the permanent injunction is overbroad and an abuse of discretion as to her. Hansen concedes she is not blameless, but asserts her misconduct is relatively minor. Hansen specifically
In approaching Hansen’s claim of an abuse of discretion, we are mindful a court’s power to grant injunctive relief to prevent future unfair business practices is “‘extraordinarily broad.’” (Hewlett v. Squaw Valley Ski Corp. (1997)
The record reflects Hansen held herself out for years as a real estate broker while not personally licensed. Hansen signed the name of one Jack Bloom to documents that went to credit reporting companies in order to impair victims’ credit for nonpayment of exorbitant cancellation fees. Hansen notarized a Jack Bloom signature that was not Bloom’s, documents were notarized with Hansen’s stamp and signature without her being present for the signing, and documents were notarized at Hansen’s office after signatures were collected elsewhere.
Given this evidence of Hansen’s unscrupulous behavior, the trial court acted within its discretion in fashioning the permanent injunction.
Disposition
The judgment is affirmed. Respondent shall recover costs on appeal.
Croskey, J., and Kitching, J., concurred.
Appellants’ petition for review by the Supreme Court was denied April 9, 2003.
Notes
All further statutory references are to the Business and Professions Code, unless otherwise indicated.
Other than Hansen’s contention that the finding she violаted section 17500 is not supported by substantial evidence, defendants do not challenge the sufficiency of the evidence to support the trial court’s findings that there were hundreds of violations of
Other jurisdictions also place the burden on a defendant to establish an inability to pay. (See, e.g., Kemezy v. Peters (7th Cir. 1996)
People v. Dollar Rent-A-Car Systems, Inc., supra,
We are aware Murakami partially disapproved Toomey, but that does not alter our conclusion herein that the People had no burden to present evidence of defendants’ financial condition. By way of background, in holding the People were not required to present evidence of a defendant’s wealth to obtain civil penalties, Toomey observed, inter alia, “recent decisions indicate that the burden is on the defendant to establish financial inability to pay an exemplary damage award (Vossler v. Richards Manufacturing Co. (1983)