        IN THE SUPREME COURT OF
               CALIFORNIA

NATIONWIDE BIWEEKLY ADMINISTRATION, INC., et al.,
                   Petitioners,
                        v.
   THE SUPERIOR COURT OF ALAMEDA COUNTY,
                   Respondent;
                 THE PEOPLE,
              Real Party in Interest.

                           S250047

             First Appellate District, Division One
                           A150264

               Alameda County Superior Court
                       RG15770490



                         April 30, 2020

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan and Groban concurred.

Justice Kruger filed a concurring opinion, in which Justices
Liu and Cuéllar concurred.
    NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                 SUPERIOR COURT
                            S250047


         Opinion of the Court by Cantil-Sakauye, C. J.


       Under two of California’s most prominent consumer
protection statutes — the unfair competition law (UCL)1 and the
false advertising law (FAL)2 — the Attorney General or local
prosecuting authorities may bring a civil action against a
business that has allegedly engaged in an unfair, unlawful or
deceptive business act or practice or false or misleading
advertising and may obtain civil penalties as well as injunctive
relief and restitution in such an action. In this case we must
decide whether, when the government seeks civil penalties as
well an injunction or other equitable remedies under those
statutes, the causes of action are to be tried by the court (that
is, the trial judge) or, instead, by a jury.
      For more than 45 years, a uniform line of California Court
of Appeal decisions has held that such causes of action under the
UCL and FAL are to be tried by the court rather than by a jury.


1
      The unfair competition law is set forth at Business and
Professions Code section 17200 et seq. Although the Legislature
has not given an official name to these statutory provisions, the
legislation has generally been referred to as the unfair
competition law, and we will refer to this statute as the UCL.
(See Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 169, fn. 2.)
2
     The false advertising law (FAL) is set forth at Business
and Professions Code section 17500 et seq.


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In the current writ proceeding in this case, however, the Court
of Appeal, relying primarily on a decision of the United States
Supreme Court applying the civil jury trial provision of the
Seventh Amendment to the federal Constitution — Tull v.
United States (1987) 481 U.S. 412 (Tull) — disagreed with the
earlier line of decisions and held that the jury trial provision of
the California Constitution should be interpreted to require a
jury trial in any action brought under the UCL or FAL in which
the government seeks civil penalties in addition to injunctive or
other equitable relief. We granted review to resolve the conflict
in the Court of Appeal decisions.
      For the reasons discussed hereafter, we conclude that the
causes of action established by the UCL and FAL at issue here
are equitable in nature and are properly tried by the court
rather than a jury. As we explain, the legislative history and
underlying purpose of the statutory provisions in question
demonstrate that these very broadly worded consumer
protection statutes were fashioned to permit courts to utilize
their traditional flexible equitable authority, tempered by
judicial experience and familiarity with the treatment of
analogous business practices in this and other jurisdictions, in
evaluating whether a challenged business act or practice or
advertising should properly be considered impermissible under
these statutory provisions.
      With regard to petitioners’ constitutional claim, it is firmly
established that California’s constitutional jury trial provision
preserves the right to jury trial in civil actions comparable to
those legal causes of action in which the right to jury trial
existed at the time of the first Constitution’s adoption in 1850
and does not apply to causes of action that are equitable in


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nature. At early common law, “legal” causes of action (or
“actions at law”) typically involved lawsuits in which the
plaintiff sought to recover money damages to compensate for an
injury caused, for example, by the defendant’s breach of contract
or tortious conduct, whereas “equitable” causes of action (or
“suits in equity”) sought relief that was unavailable in actions
at law, such as an injunction to prohibit ongoing or future
misconduct or an order requiring a defendant to provide specific
performance or disgorge ill-gotten gains.        The consumer
protection statutory causes of action at issue here are quite
different from any early common law cause of action that was in
existence at the time the civil jury trial provision of the
California Constitution was first adopted. Given the nature of
the substantive standard to be applied and the remedies
afforded by the statutes, we conclude that the gist of both the
UCL and FAL causes of action at issue here is equitable and
consequently such actions are properly tried by the court rather
than by a jury.
      As further explained, the United States Supreme Court
decision in Tull, supra, 481 U.S. 412, relied upon by the Court
of Appeal below, does not govern this case for a variety of
reasons. To begin with, the Tull decision rests upon the federal
high court’s interpretation of the civil jury trial provision of the
Seventh Amendment to the federal Constitution, and that
court’s decisions explicitly hold that the Seventh Amendment
applies only to federal court proceedings, not state court
proceedings. The constitutional right to jury trial in state court
civil proceedings is governed only by the civil jury trial
provisions of each individual state’s own state constitution. In
several important respects, California decisions have construed


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the civil jury trial provision of the California Constitution in a
manner differently from how the federal high court has
interpreted the federal civil jury trial provision.           These
differences are significant in this context and serve to
distinguish the Tull decision from this case. Second, unlike the
broad, flexible standards embodied in the two consumer
protection statutes at issue in this case, there is no indication
that the relevant substantive statutory standard at issue in Tull
called for the exercise of a court’s traditional equitable authority
and discretion in determining whether a violation of the statute
had occurred. Accordingly, the court in Tull had no occasion to
determine how the federal constitutional civil jury trial
provision should be interpreted or applied in such a setting.
      Because the nature of the substantive statutory standards
and remedies embodied in the civil causes of action under the
UCL and the FAL establish the equitable nature of the actions,
we limit the holding in this case to the UCL and FAL setting
and express no opinion regarding how the state constitutional
jury trial right applies to other statutory causes of action that
authorize both injunctive relief and civil penalties.
             I. FACTS AND PROCEEDINGS BELOW
      Petitioners Nationwide Biweekly Administration, Inc.,
Loan Payment Administration LLC, and Daniel S. Lipsky, the
alleged alter ego, principal and sole shareholder of both entities
(hereafter collectively referred to as Nationwide) operated a
debt payment service in California and other states.
Nationwide’s program claimed to save debtors money through a
process in which the debtor would reduce the amount of interest
owed over the life of a loan by having the debtor accelerate the
repayment of the debt through an extra monthly payment each

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year. Under the program, a debtor would pay to Nationwide
one-half the debtor’s ordinary monthly loan payment every two
weeks (biweekly) rather than one full payment once a month,
resulting in an extra month’s payment each year (26 half-
payments equal 13 full payments), and Nationwide would in
turn pay those amounts to the debtor’s lender. Nationwide
advertised its services statewide, mostly through direct mailers
to consumers with outstanding residential mortgages, and
through follow-up telephone conversations with consumers who
responded to the mailers.
      In May 2015, the district attorneys of four counties, acting
on behalf of the People, filed a civil complaint alleging that
Nationwide had violated the UCL and FAL by, among other
things, employing business practices that: (1) misleadingly
implied that Nationwide was affiliated with the consumer’s
lender; (2) disguised the amount that Nationwide’s services
actually cost by failing to fully and adequately disclose the
amount, payment schedule, and effect of Nationwide’s fees; and
(3) overstated the amount of savings a consumer could
reasonably expect to receive through Nationwide’s services.3
The complaint also stated that Nationwide’s practices have been


3
      As initially filed, the complaint also alleged that
Nationwide’s practices violated the Check Sellers, Bill Payers,
and Proraters Law (Fin. Code, § 12200 et seq.) and asserted
causes of action under that statute. While this case was pending
before this court, those causes of action were dismissed as part
of a larger settlement between the Department of Business
Oversight and Nationwide. The underlying action now rests
solely on the causes of action under the UCL and FAL set forth
in the complaint.



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the subject of numerous consumer complaints and regulatory
and law enforcement activities around the country, including an
action brought by the federal Consumer Financial Protection
Bureau (CFPB).4
       The complaint’s prayer for relief requested that the court
(1) issue an injunction prohibiting the business practices found
to violate the provisions of the UCL or FAL, (2) order restitution
of all money wrongfully acquired by Nationwide from California
consumers in violation of the UCL and FAL, and (3) impose civil
penalties up to $2,500 for each violation of the UCL or FAL
found by the court.5



4
       In the action brought by the CFPB, the federal district
court, after a seven-day bench trial, found that although some
of the claims advanced by the CFPB were not meritorious,
Nationwide had made a variety of misleading statements in its
marketing materials. The court imposed injunctive relief and
civil penalties of more than $7 million against Nationwide based
on that misleading conduct. (Consumer Financial Protection
Bureau v. Nationwide Biweekly Admin., Inc. (N.D.Cal., Sept. 8,
2017, No. 15-cv-02106-RS) 2017 WL 3948396, pp. *6-9, *12-13.)
Both parties filed appeals from the district court’s decision, that
are pending in the United States Court of Appeals for the Ninth
Circuit. (Case Nos. 18-15431 & 18-15887, filed Mar. 15, 2018
& May 10, 2018.)
5
      In the answer brief filed in this court, Nationwide claims
that the government seeks to impose “over $19.25 billion in civil
penalties.” The complaint, however, seeks no specific amount in
penalties, and, as explained hereafter, the applicable statutes
and case law grant trial courts broad, but not unlimited,
discretion to impose penalties in a reasonable amount (up to
$2,500 per violation) in light of the nature and severity of an
offending business’ conduct. (Post, pp. 13, 28, 38.) The answer’s
hyperbole in this regard does not advance its legal argument.


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       In its amended answer to the complaint, Nationwide
demanded a jury trial “on all issues so triable,” and the People,
in response, filed a motion to strike the jury demand “based on
well settled law that this is an equity action requiring a court
trial.” After briefing, the trial court granted the People’s motion
to strike the jury demand.
      Nationwide then filed a petition for writ of mandate in the
Court of Appeal, challenging the trial court’s ruling striking the
jury demand. After the Court of Appeal initially summarily
denied the writ petition, this court granted Nationwide’s
petition for review and retransferred the matter to the Court of
Appeal with directions to issue an order requiring the People to
show cause why Nationwide does not have a right to jury trial
when the government seeks the civil penalties authorized under
the UCL and FAL.
       After briefing and argument, the Court of Appeal held that
under article I, section 16 of the California Constitution — the
jury trial provision — Nationwide has a right to a jury trial in
this matter and that the trial court erred in striking the jury
demand. (Nationwide Biweekly Administration, Inc. v. Superior
Court (2018) 24 Cal.App.5th 438 (Nationwide Biweekly).) The
Court of Appeal, relying heavily on the reasoning of the United
States Supreme Court’s decision in Tull, supra, 481 U.S. 412,
concluded that because the People are seeking civil penalties as
well as injunctive relief and restitution, the “gist” of the People’s
UCL and FAL causes of action against Nationwide should
properly be considered legal rather than equitable, “giving rise
to a right to a jury trial” under article I, section 16. (Nationwide
Biweekly, supra, 24 Cal.App.5th at p. 442.) At the same time,
the Court of Appeal, again following the approach adopted by


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the United States Supreme Court in Tull, held that
Nationwide’s jury trial right is limited to the issue of liability —
that is, to whether Nationwide’s business practices violated the
provisions of the UCL or FAL — and does not extend to the issue
of remedy, including the amount of civil penalties to be imposed.
(Nationwide Biweekly, at p. 456.)
      In the course of its opinion, the Court of Appeal rejected
the People’s contention that there is “ ‘an unbroken line of
appellate decisions finding no right to a jury trial [under the
California Constitution] in UCL or FAL actions . . . where the
People sought penalties’ ” (Nationwide Biweekly, supra,
24 Cal.App.5th at p. 457), finding instead that most of the cases
relied upon by the People held only that such actions under the
UCL and FAL were not criminal in nature and thus that the
jury trial provision of the Sixth Amendment of the federal
Constitution did not apply to such actions. (Nationwide
Biweekly, at pp. 457-459.) Although the Court of Appeal
acknowledged that at least one appellate court decision —
People v. Bhakta (2008) 162 Cal.App.4th 973 — clearly held that
the gist of an action under the UCL is equitable in nature and
that there is no right to a jury trial in such an action under the
California constitutional jury trial provision, the Court of
Appeal disagreed with that decision’s analysis and declined to
follow its holding. (Nationwide Biweekly, supra, 24 Cal.App.5th
at pp. 459-460.) In addition, the Court of Appeal questioned the
validity of another appellate court decision relied upon by the
People — DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150
(DiPirro) — which held that there is no right to a jury trial in an
action seeking injunctive relief, restitution, and civil penalties
under the Safe Drinking Water and Toxic Enforcement Act of


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1986 (Health & Saf. Code, § 25249.5 et seq.) (commonly known
as Prop. 65). The Court of Appeal found that the DiPirro
decision had not adequately analyzed the United States
Supreme Court’s reasoning in Tull. (Nationwide Biweekly,
supra, 24 Cal.App.5th at pp. 461-463.)
      Accordingly, the Court of Appeal concluded that a writ of
mandate should issue, directing the trial court to vacate its
order striking Nationwide’s request for jury trial and to grant a
jury trial on all issues except the amount of any statutory
penalties to be awarded.        (Nationwide Biweekly, supra,
24 Cal.App.5th at p. 463.)
     We granted the People’s petition for review to determine
whether there is a right to a jury trial in a UCL or FAL action
brought by the government when the government seeks civil
penalties as well as injunctive relief and restitution.
          II. GENERAL PRINCIPLES REGARDING THE
             RIGHT TO JURY TRIAL IN CIVIL CASES
                  UNDER CALIFORNIA LAW
       As this court recently explained in Shaw v. Superior Court
(2017) 2 Cal.5th 983 (Shaw): “Under California law, the right
to a jury trial in a civil action may be afforded either by statute
or by the California Constitution. . . . [¶] As a general matter,
the California Legislature has authority to grant the parties in
a civil action the right to a jury trial by statute, either when the
Legislature establishes a new cause of action or with respect to
a cause of action that rests on the common law or a
constitutional provision. [Citations.] Given the Legislature’s
broad general legislative authority under the California
Constitution and in the absence of any constitutional
prohibition [citations], the Legislature may extend the right to


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a jury trial to instances in which the state constitutional jury
trial provision does not itself mandate a right to a jury trial.
[¶] . . . But even when the language and legislative history of
a statute indicate that the Legislature intended that a cause of
action established by the statute is to be tried by the court rather
than a jury, if the California constitutional jury trial provision
itself guarantees a right to a jury trial in such a cause of action,
the Constitution prevails and jury trial cannot be denied.”
(2 Cal.5th at pp. 993-994, fn. omitted.)
        III. IS THERE A STATUTORY RIGHT TO JURY
       TRIAL UNDER EITHER THE UCL OR FAL WHEN
       THE GOVERNMENT SEEKS CIVIL PENALTIES AS
                WELL AS INJUNCTIVE RELIEF?
       Neither the UCL nor the FAL explicitly addresses the
question whether the causes of action created by the two
statutes — both of which authorize the government to seek civil
penalties as well as injunctive relief and restitution — are to be
tried by the court or by a jury. As we shall see, however, the
legislative history and legislative purpose of both statutes
convincingly establish that the Legislature intended that such
causes of action under these statutes would be tried by the court,
exercising the traditional flexible discretion and judicial
expertise of a court of equity, and not by a jury, including when
civil penalties as well as injunctive relief and restitution are
sought.
      A. The UCL
      Prior to 1933, former section 3369 of the Civil Code
provided simply that “[n]either specific nor preventive relief can
be granted to enforce a penal law, except in a case of nuisance,
nor to enforce a penalty or forfeiture in any case.” The current


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provisions of the UCL — set forth in Business and Professions
Code section 17200 et seq. — derive from a 1933 amendment of
Civil Code former section 3369. (Stats. 1933, ch. 953, § 1,
p. 2482.) The 1933 amendment broadened the exception in the
statute to include “unfair competition” as well as “nuisance”
(Civ. Code, former § 3369, subd. (1)) and added additional
subdivisions that: (a) provided that “[a]ny person performing
or proposing to perform an act of unfair competition within this
State may be enjoined in any court of competent jurisdiction”
(id., subd. (2), italics added); (b) defined “unfair competition” as
used in the statute to “mean and include unfair or fraudulent
business practice and unfair, untrue or misleading advertising”
(id., subd. (3), italics added)6; and (c) authorized actions for
injunction under the statute to be brought “by the Attorney
General or any district attorney in this State in the name of the
people of the State of California” or by “any board, officer, . . .
corporation or . . . person acting for the interests of itself, its
members or the general public” (Civ. Code, former § 3369, subd.
(5)). Because the unfair competition cause of action established
by the 1933 amendment of former section 3369 authorized the
government (as well as private parties) to seek only injunctive
relief, there is no question that the civil cause of action created
in 1933 was equitable in nature and, as such, was intended to
be tried by the court and not a jury. (See 3 Witkin, Cal.
Procedure (5th ed. 2008) Actions, § 126, p. 205 [“Actions seeking


6
      The 1933 amendment also defined “unfair competition” to
include any violation of the then-existing provisions of Penal
Code former sections 654a, 654b, or 654c, all of which prohibited
different specific forms of false advertising. (Stats. 1933,
ch. 953, § 1, p. 2482 [Civ. Code, former § 3369, subd. (3)].)


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injunctive relief are, of course, equitable in nature”].)
Nationwide does not suggest otherwise.
       In 1972, as part of a legislative measure that expanded the
reach of former section 3369 of the Civil Code to include
“deceptive,” as well as “unfair,” “untrue,” or “misleading,”
advertising (Stats. 1972, ch. 1084, § 1, p. 2020), the Legislature
added former section 3370.1 to the Civil Code, authorizing the
Attorney General or any district attorney (but not private
parties) to seek and obtain, in addition to injunctive relief, “a
civil penalty not to exceed two thousand five hundred dollars
($2,500) for each violation” of former section 3369 (Stats. 1972,
ch. 1084, § 2, p. 2021 [enacting Assem. Bill No. 1937 (1971-1972
Reg. Sess.])). The 1972 legislation was proposed by the Attorney
General and district attorneys who were charged with enforcing
the prohibition on unfair competition embodied in former
section 3369. In support of the legislation, the proponents
maintained that “[i]t is our experience that an injunction
without a civil penalty is not a deterrent to future consumer
fraud abuses.” (Atty. Gen. Evelle J. Younger, letter to Sen.
Alfred H. Song re Assem. Bill No. 1937 (1971-1972 Reg. Sess.)
July 13, 1972.) A legislative committee analysis of the proposed
bill after its final amendment set forth the purpose of the
legislation as intended to “[p]ermit the Attorney General and a
district attorney to collect civil penalties in addition to either
specific or preventive relief in actions they commence to enjoin
acts of unfair competition,” explaining that “[i]t is felt that the
allowance of civil penalties, in addition to the requested
injunctive relief, will provide a sufficient deterrent to the
resumption of these unlawful practices.” (Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 1937 (1971-1972 Reg.


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Sess.) as amended May 25, 1972, pp. 1, 2.) There is no indication
in the legislative history of the 1972 enactment that the
Legislature, in providing an additional remedy that could be
sought in actions under former section 3369 to enjoin acts of
unfair competition, intended to transform such actions from
ones that were to be tried by the court into actions that were to
be tried by a jury. Civil actions under the UCL that were filed
by private parties, in which only injunctive relief was
authorized, continued to be tried by the court.
       In 1977, the Legislature moved the relevant sections of the
Civil Code embodying the unfair competition law into the
Business and Professions Code at sections 17200 to 17206.
(Stats. 1977, ch. 299, § 1, p. 1202.) Former section 3370.1 of the
Civil Code — the section authorizing the Attorney General or a
district attorney to seek civil penalties as well as injunctive
relief — was moved to Business and Professions Code section
17206. In 1992, the Legislature added subdivision (b) to
Business and Professions Code section 17206, which provides in
relevant part that “[i]n 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.” (Stats. 1992, ch. 430, § 4, p. 1708, italics added.)
Nothing in these further amendments suggests that in an action
under the UCL in which the government seeks civil penalties as
well as injunctive or other equitable relief, the Legislature


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intended that the action would be tried by a jury rather than by
the trial court, and the language of Business and Professions
Code section 17206, subdivision (b) clearly indicates that the
amount of civil penalties is intended to be determined by the
court.7
      The factors just discussed — namely (1) the origin of the
government’s cause of action under the UCL as an action simply
to enjoin an unfair business practice and (2) the language of the
statutory provision relating to the awarding of civil penalties in
such an action — clearly support the conclusion that the
Legislature, in enacting the UCL, intended to create an
equitable, rather than a legal, cause of action. Furthermore,
from the statute’s inception, California decisions interpreting
and applying both the provisions of former section 3369 and its
current counterparts have explained that the exceedingly broad
and general language that the Legislature incorporated in the
statute to define the business practices that are proscribed by
the statute — in the original language, “unfair or fraudulent
business practice and unfair, untrue, or misleading advertising”
— was adopted with the specific understanding that this broad


7
      In the statewide election held in November 2004, the
voters approved Proposition 64, an initiative statute that
restricted the kinds of private plaintiffs that may seek an
injunction or other equitable relief under the UCL or FAL
(Bus. & Prof. Code, §§ 17203, 17204, 17535) and provided that
the revenue from the civil penalties imposed under the UCL or
FAL may be used only by the Attorney General and local public
prosecutors for the enforcement of consumer protection laws.
(Bus. & Prof. Code, §§ 17206, subd. (c), 17536, subd. (c).) The
changes effectuated by Proposition 64 have no direct bearing on
the issue before us.


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language would be applied by a court of equity in determining
whether a challenged business practice violated the statutory
prohibition.
       For example, in Barquis v. Merchants Collection Assn.
(1972) 7 Cal.3d 94 (Barquis) — one of this court’s seminal
decisions applying the UCL — we emphasized that past cases
under the statute “have frequently noted that the section was
intentionally framed in its broad, sweeping language, precisely
to enable judicial tribunals to deal with the innumerable ‘ “new
schemes which the fertility of man’s invention would
contrive.” ’ ” (Barquis, at p. 112, italics added.) Quoting from
American Philatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 698-
699 — one of the earliest decisions discussing the appropriate
reach of the broad language of the statute at issue — Barquis
observed: “ ‘When a scheme is evolved which on its face violates
the fundamental rules of honesty and fair dealing, a court of
equity is not impotent to frustrate its consummation because the
scheme is an original one. There is a maxim as old as law that
there can be no right without a remedy, and in searching for a
precise precedent, an equity court must not lose sight, not only
of its power, but of its duty to arrive at a just solution of the
problem.’ ” (Barquis, supra, 7 Cal.3d at p. 112, italics added.)
       The objective that the Legislature sought to accomplish
through its adoption of the broad standard embodied in the UCL
fits perfectly with the role historically exercised by a court of
equity. As Pomeroy explained in his classic treatise on equity
jurisprudence: “[Equity is] much more elastic and capable of
expansion and extension to new cases than the common law. Its
very central principles, its foundation upon the eternal verities
of right and justice, its resting upon the truths of morality rather


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than arbitrary customs and rigid dogmas, necessarily gave it
this character of flexibility, and permitted its doctrines to be
enlarged so as to embrace new cases as they constantly arose.
It has, therefore, as an essential part of its nature, a capacity of
orderly and regular growth, — a growth not arbitrary, according
to the will of individual judges, but in the direction of its already
settled principles. It is ever reaching out and expanding its
doctrines so as to cover new facts and relations, but still without
any break or change in the principles or doctrines themselves.”
(1 Pomeroy, Equity Jurisprudence (5th ed. 1941) § 59, p. 76.) As
the Court of Appeal observed in A-C Co. v. Security Pacific Nat.
Bank (1985) 173 Cal.App.3d 462, 473: “The tradition and
heredity of the flexible equitable powers of the modern trial
judge derive from the role of the trained and experienced
chancellor and depend upon skills and wisdom acquired through
years of study, training and experience which are not
susceptible of adequate transmission through instructions to a
lay jury.”8




8
      The very broad consumer protective language set forth in
the UCL closely tracks the broad language that Congress
embodied in the Federal Trade Commission Act to reach
business practices that were not specifically forbidden by the
common law or other statutes. (See 15 U.S.C. § 45(a) [“Unfair
methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce” are
declared unlawful]; see generally Baker & Baum, Section 5 of
the Federal Trade Commission Act: A Continuing Process of
Redefinition (1962) 7 Vill. L.Rev. 517, 525-542.) California
decisions have long recognized the close relationship between
the language of the UCL and the Federal Trade Commission


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        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                         SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


      Over the more than 80-year history of the UCL, scores of
decisions of both this court and the Courts of Appeal have
uniformly recognized that the cause of action established by this
statute is equitable in nature. (See, e.g., Solus Industrial
Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316, 340
[the UCL “ ‘provides an equitable means through which both
public prosecutors and private individuals can bring suit to
prevent unfair business practices’ ” (italics added and omitted)];
Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1144 [“A UCL action is equitable in nature; damages
cannot be recovered. . . . Civil penalties may be assessed in
public unfair competition actions, but the law contains no
criminal provisions” (citation omitted)].)
     In Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163 (Cel-Tech), our court
addressed questions arising from the expansive scope of the
language of the UCL in a case in which the plaintiff cell phone


Act. (See, e.g., People ex rel. Mosk v. National Research Co.
(1962) 201 Cal.App.2d 765, 772-773.)
      The United States Supreme Court, in discussing the
Federal Trade Commission’s exercise of its authority to
determine whether a trade practice is “unfair” under the
Federal Trade Commission Act in FTC v. Sperry & Hutchinson
Co. (1972) 405 U.S. 233, 244, concluded that “legislative and
judicial authorities alike convince us that the Federal Trade
Commission does not arrogate excessive power to itself if, in
measuring a practice against the elusive, but congressionally
mandated standard of fairness, it, like a court of equity,
considers public values beyond simply those enshrined in the
letter or encompassed in the spirit of antitrust laws.” (Italics
added.)



                                  17
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
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             Opinion of the Court by Cantil-Sakauye, C. J.


vendor challenged the business practices of the defendant
competitor cell phone company as unfair under the UCL. In that
case, the plaintiff contended that the defendant had assertedly
taken improper advantage of its privileged position as one of
only two cell phone companies licensed to provide cellular
service in the Los Angeles area when it engaged in the practice
of selling cell phones to its cellular service customers at below
cost. In Cel-Tech, we noted that our court had not yet defined
the term “unfair” as used in the UCL and determined that
although two Court of Appeal decisions had attempted such a
definition,9 the suggested definitions in those appellate
decisions were “too amorphous and provide too little guidance to
courts and businesses.” (Cel-Tech, at p. 185.)
        Thereafter, in devising “a more precise test for
determining what is unfair under the unfair competition law”,
the court in Cel-Tech “turn[ed] for guidance to the jurisprudence
arising under the ‘parallel’ section 5 of the Federal Trade
Commission Act (15 U.S.C. § 45(a))” (FTC Act), observing that
“ ‘[i]n view of the similarity of language and obvious identity of
purpose of the two statutes, decisions of the federal court on the
subject are more than ordinarily persuasive.’ ” (Cel-Tech, supra,


9
       See People v. Casa Blanca Convalescent Homes, Inc. (1984)
159 Cal.App.3d 509, 530, which stated that “an ‘unfair’ business
practice occurs when it offends an established public policy or
when the practice is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers,” and
State Farm Fire & Casualty Co. v. Superior Court (1996)
45 Cal.App.4th 1093, 1104, which declared that in determining
whether a business practice is unfair “ ‘the court must weigh the
utility of the defendant’s conduct against the gravity of the harm
to the alleged victim.’ ”


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             Opinion of the Court by Cantil-Sakauye, C. J.


20 Cal.4th at p. 185.) After describing a number of federal high
court decisions considering the types of practices that would be
considered “ ‘unfair methods of competition’ ” between
competitors under section 5 of the FTC Act (Cel-Tech, at p. 186)
— federal decisions that the Cel-Tech court emphasized it
considered persuasive but not “controlling or determinative”
(id. at p. 186, fn. 11) — the court in Cel-Tech concluded that “to
guide courts and the business community adequately and to
promote consumer protection, we must require that any finding
of unfairness to competitors under [Business and Professions
Code] section 17200 be tethered to some legislatively declared
policy or proof of some actual or threatened impact on
competition. We thus adopt the following test: When a plaintiff
who claims to have suffered injury from a direct competitor’s
‘unfair’ act or practice invokes section 17200 [(the relevant
provision of the UCL)], the word ‘unfair’ in that section means
conduct that threatens an incipient violation of an antitrust law,
or violates the policy or spirit of one of those laws because its
effects are comparable to or the same as a violation of the law, or
otherwise significantly threatens or harms competition”
(20 Cal.4th at pp. 186-187, italics added).
      It is clear from both the language and nature of the test
adopted in Cel-Tech — that is, whether the challenged business
practice “threatens an incipient violation of an antitrust law” or
“violates the policy or spirit of one of those laws” — that such a
standard is one that may reasonably be applied only by a court.
(Cel-Tech, supra, 20 Cal.4th at p. 187.) This standard is too
indeterminate to be adequately conveyed by jury instructions or
applied by a jury. Indeed, the Cel-Tech court’s detailed
description of the analysis that would have to be undertaken on


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              Opinion of the Court by Cantil-Sakauye, C. J.


remand of that case in determining whether the challenged
practice meets the test of unfairness adopted in Cel-Tech makes
it clear that our opinion in that case recognized that the test was
to be applied by the trial court and not a jury. (See Cel-Tech,
supra, 20 Cal.4th at pp. 188-191; cf. F. T. C. v. Motion Picture
Adv. Co. (1953) 344 U.S. 392, 396 [“The point where a method of
competition becomes ‘unfair’ . . . will often turn on the exigencies
of a particular situation, trade practices, or the practical
requirements of the business in question”].)
      The court in Cel-Tech explicitly noted that the case before
it involved “an action by a competitor alleging anticompetitive
practices” and emphasized that the specific test adopted in that
decision was limited to that context and did not apply to “actions
by consumers or by competitors alleging other kinds of
violations of the unfair competition law.” (Cel-Tech, supra,
20 Cal.4th at p. 187, fn. 12.) Subsequent to the decision in Cel-
Tech, our court has not addressed the question whether in
actions under the UCL brought on behalf of consumers rather
than competitors, the term “unfair” in the UCL needs to be
similarly defined in a more prescribed standard or test, and, if
so, what that test should be. In the years since Cel-Tech, a split
of authority has developed in the Courts of Appeal with regard
to the proper test for determining whether a business practice
is unfair under the UCL in consumer cases, with appellate
decisions adopting three different tests for determining
unfairness in the consumer context. (See, e.g., Zhang v.
Superior Court (2013) 57 Cal.4th 364, 380, fn. 9 [describing split




                                   20
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
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             Opinion of the Court by Cantil-Sakauye, C. J.


of authority].)10 The issue of the proper test for defining the
term “unfair” as used in the UCL in the consumer context is not

10
       One line of Court of Appeal decisions has held that a
balancing test, which the Cel-Tech court declined to adopt in the
competitor context (see Cel-Tech, supra, 20 Cal.4th at pp. 184-
185), should nonetheless be applied in the consumer context,
under which the determination whether a business practice is
unfair to consumers “ ‘ “involves an examination of [that
practice’s] impact on its alleged victim, balanced against the
reasons, justifications and motives of the alleged wrongdoer. In
brief, the court must weigh the utility of the defendant’s conduct
against the gravity of the harm to the alleged victim.” ’ ” (Smith
v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th
700, 718; see, e.g., Ticconi v. Blue Shield of California Life &
Health Ins. Co. (2008) 160 Cal.App.4th 528, 539; cf. FTC v.
Sperry & Hutchinson Co., supra, 405 U.S. 233, 244-245, fn. 5
[quoting with approval similar test adopted by FTC in 1964 for
determining unfairness under § 5 of the FTC Act].)
       A second line of Court of Appeal decisions has adopted
what has been termed a “tethering test,” requiring that “the
public policy which is a predicate to [a consumer unfair
competition action under the ‘unfair’ prong of the UCL] must be
‘tethered’ to specific constitutional, statutory or regulatory
provisions” in a manner similar to which Cel-Tech requires a
competitor’s cause of action to be tethered to the antitrust laws.
(Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 854;
see, e.g., Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th
917, 940.)
       A third line of Court of Appeal cases has adopted the three-
part definition of unfairness applied under section 5 of the FTC
Act since 1980, namely that: “(1) The consumer injury must be
substantial; (2) the injury must not be outweighed by any
countervailing benefits to consumers or competition; and (3) it
must be an injury that consumers themselves could not
reasonably have avoided.” (Camacho v. Automobile Club of
Southern California (2006) 142 Cal.App.4th 1394, 1403; see,
e.g., Rubenstein v. The Gap (2017) 14 Cal.App.5th 870, 880.)
This test has sometimes been termed the “section 5 test.”


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             Opinion of the Court by Cantil-Sakauye, C. J.


raised in the present case, and we have no occasion to address it
here. Nonetheless, we note that all the tests that have been
proposed in the appellate court decisions are ones that, like the
test adopted in Cel-Tech, can reasonably be applied only by
courts, rather than by juries.
      Accordingly, both (1) the fact that the cause of action
under the UCL originated solely as an action to enjoin an unfair
or misleading business practice — an equitable action triable
only by a court and not a jury — and (2) the fact that the broad
and general standard of unfair competition that was
incorporated into the statute contemplated that the standard
would be applied by a court exercising its traditional, flexible
equitable authority rather than by a jury, support the conclusion
that the Legislature, in enacting the UCL, intended that a cause
of action under the UCL would be tried by the court and not a
jury, even when the government seeks civil penalties as well as
injunctive relief.
      We note that the nature of the principal issue presented
in a great many UCL actions additionally supports the
conclusion that such causes of action were intended to be
decided by the court rather than a jury. A cursory review of the
numerous UCL actions that have been brought in recent years
(see Stern, Cal. Practice Guide: Bus. & Prof. Code § 17200
Practice (The Rutter Group 2019) § 3:131, pp. 3-39 to 3-44
[describing 41 recent UCL cases]) reveals that such cases often
concern a nuanced and qualitative determination regarding
whether a business practice should properly be considered
unfair or deceptive within the meaning of the UCL. (See, e.g.,
Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1376-
1382 [considering whether failing to sell temperature-adjusted


                                  22
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                         SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


motor fuel or to disclose the effect of temperature increases on
the volume of fuel sold could constitute an unfair or fraudulent
business practice]; Jolley v. Chase Home Finance, LLC (2013)
213 Cal.App.4th 872, 907-908 [considering whether bank’s
practice of “dual tracking” — agreeing to a loan modification
while continuing to pursue foreclosure — could constitute an
unfair or fraudulent business practice].) This type of qualitative
determination — often requiring the consideration of a variety
of factors or circumstances identified in prior cases in California
or other jurisdictions or in administrative guidelines developed
by the Federal Trade Commission or other consumer protection
administrative agencies — is the type of decision that has
traditionally been viewed as the province of courts rather than
juries.
       Moreover, we have emphasized that “ ‘the overarching
legislative concern [in enacting the UCL is] to provide a
streamlined procedure for the prevention of ongoing or
threatened acts of unfair competition’ ” (Cortez v. Purolator Air
Filtration Products Co. (2000) 23 Cal.4th 163, 173-174), an
objective that is inconsistent with the unavoidable delays and
increased costs inherent in a jury, as compared to a court, trial.
Furthermore, having a court, rather than a jury, decide the
question whether a business practice is properly considered
unfair or deceptive for purposes of the UCL has the additional
significant benefit — for both defendants and plaintiffs — of
facilitating appellate review of that determination, because a
trial court, unlike a jury, is required to provide, upon request of
any party, “a statement of decision explaining the factual and
legal basis for its decision.” (Code Civ. Proc., § 632.) And having
appellate courts in the position in which they can adequately


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        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                         SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


review trial courts’ evaluations of the validity of business
practices under the UCL, in turn, promotes the creation of a
cumulative body of precedent that improves the consistency of
future determinations under the UCL and provides needed
guidance to companies in the formulation of their business
practices.
      In sum, for all of the foregoing reasons, we believe that it
is clear that the Legislature intended that a cause of action
under the UCL — including an action brought by the
government that seeks both injunctive relief and civil penalties
— is to be tried by the court rather than by a jury.
     B. The FAL
     The FAL (Bus. & Prof. Code, § 17500 et seq.) has been
accurately described as “the major California legislation
designed to protect consumers from false or deceptive
advertising.”   (People v. Superior Court (Olson) (1979)
96 Cal.App.3d 181, 190.) The procedures set forth in the FAL
and UCL are in many respects parallel to one another, and the
UCL specifically provides that any practice that violates the
FAL is also prohibited by the UCL. (See Bus. & Prof. Code,
§ 17200.)
      The original version of the FAL creating a civil cause of
action was enacted in 1941. (Stats. 1941, ch. 63, § 1, pp. 727-
729 [enacting Bus. & Prof. Code, §§ 17500-17535].)11 The

11
      The FAL traces its origin to the 1915 version of former
Penal Code section 654a (Stats. 1915, ch. 634, § 1, pp. 1252-
1253), which, in turn, was based upon a model false advertising
statute that was first proposed in 1911 in Printer’s Ink
magazine, an advertising journal. (See Note, The Regulation of


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        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                         SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


statute broadly prohibited false or misleading advertising,
declaring that it is unlawful for any person or business to make
or distribute any statement to induce the public to enter into a
transaction “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.” (Bus. & Prof. Code, § 17500.) Like
the civil cause of action authorized by the original version of the
UCL, the FAL, as originally enacted, explicitly authorized only
injunctive relief (Bus. & Prof. Code, former § 17535), permitting
civil actions for injunction under the act to be prosecuted by the
Attorney General or any district attorney on behalf of the
People, and also “by any [entity or] person acting for the
interests of itself, its members or the general public.” (Ibid.)
Because the civil action established by the 1941 legislation
authorized only injunctive relief, it is clear that, as originally
enacted, a civil action under the FAL, like that under the UCL
as originally enacted, was equitable in nature and was intended


Advertising (1956) 56 Colum. L.Rev. 1018, 1058; Note, Enforcing
California’s False Advertising Law: A Guide to Adjudication
(1974) 25 Hastings L.J. 1105, 1106.) The 1911 model statute
proposed to make it a misdemeanor to publish an advertisement
containing “ ‘any assertion, representation or statement of fact
which is untrue, deceptive or misleading’ ” and was quite
stringent, omitting any requirement that the advertiser be
shown to have intended to deceive or to know the improper
character of the advertisement. (Note, The Regulation of
Advertising, supra, 56 Colum. L.Rev. at pp. 1058-1059 &
fn. 245.) In adopting the statute in California in 1915, however,
the Legislature added a scienter requirement, requiring a
showing that the advertiser knew or, in the exercise of
reasonable care, should have known of the false, deceptive or
misleading character of the advertisement. (Stats. 1915,
ch. 634, § 1.)


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             Opinion of the Court by Cantil-Sakauye, C. J.


to be tried by a court and not a jury. Again, Nationwide does
not argue otherwise.
       In 1965, the Legislature added Business and Professions
Code section 17536 to the FAL, authorizing the Attorney
General or a district attorney, but not a private party, to seek a
civil penalty not to exceed $2,500 for each violation of the FAL.
(Stats. 1965, ch. 827, § 1, pp. 2419-2420.) The enactment of
section 17536 as part of the FAL in 1965 predated the enactment
in 1972 of the comparable provision of the UCL, discussed above,
authorizing the Attorney General or a district attorney to seek
civil penalties as well as injunctive relief in an action under the
UCL. (See, ante, pp. 11-12.) As with the comparable provision
of the UCL, the legislative history of the 1965 enactment of
section 17536 indicates that the legislation was introduced at
the request of the Attorney General to provide an additional
remedy in actions to enjoin fraudulent sales schemes. (See
Assemblyman George E. Danielson, letter to Gov. Edmund G.
Brown, June 14, 1965 [urging approval of 1965 bill introduced
by Danielson].) Nothing in the legislative history of the 1965
enactment indicates any legislative intent to change the nature
of a civil action under the FAL from an equitable action that is
tried to the court to one that is tried by a jury. As under the
UCL, actions under the FAL that were filed by private parties,
in which injunctive relief was the prescribed remedy, continued
to be tried by the court, not a jury.
      In People v. Superior Court (Jayhill Corp.) (1973) 9 Cal.3d
283 (Jayhill), this court addressed a number of issues arising in
a civil action filed by the Attorney General under the FAL in
which the Attorney General sought injunctive relief, restitution
and civil penalties for alleged false and misleading advertising


                                  26
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                          SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


engaged in by door-to-door encyclopedia salespersons. The trial
court had permitted the action to go forward with respect to
injunctive relief but had struck all other forms of relief.
      On appeal, the court in Jayhill first addressed the
question of the availability of restitution in an FAL action under
Business and Professions Code section 17535. At the time the
complaint in Jayhill was filed, section 17535 provided simply
“that false or misleading advertising ‘may be enjoined’ in an
action by the Attorney General, but was silent as to the power
of the trial court to order restitution in such a proceeding.”
(Jayhill, supra, 9 Cal.3d at p. 286.) Relying on the general
principle that “[i]n the absence of such a restriction a court of
equity may exercise the full range of its inherent powers in order
to accomplish complete justice between the parties, restoring if
necessary the status quo ante as nearly as may be achieved,” the
Jayhill court held that “in an action by the Attorney General
under section 17535 a trial court has the inherent power to
order, as a form of ancillary relief, that the defendants make or
offer to make restitution to the customers found to have been
defrauded.” (Ibid, first italics added.)12 Thus, the court in
Jayhill clearly recognized that a civil action under the FAL is
an equitable action triable to the court.



12
      After the trial court ruling but prior to our decision in
Jayhill, the Legislature had explicitly amended Business and
Professions Code section 17535 to authorize the court to order
restitution as well as injunctive relief. (Stats. 1972, ch. 244, § 1,
p. 494.) In Jayhill, the court found that in light of its legislative
history, the 1972 amendment was not intended “to create a new
power in the trial court but simply to clarify existing law on the
point.” (Jayhill, supra, 9 Cal.3d at p. 287, fn. 1.)


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              Opinion of the Court by Cantil-Sakauye, C. J.


       In Jayhill, supra, 9 Cal.3d 283, this court also addressed
a separate issue concerning the application of Business and
Professions Code section 17536, the provision of the FAL
authorizing the trial court to impose civil penalties in a civil
action under the FAL. We found that the trial court in that case
had erred in determining that “ ‘each claim for penalty is a
separate cause of action’ ” which must be separately stated,
concluding instead that “[t]he Attorney General has only one
cause of action against a particular defendant for violating
section 17500; for this he seeks several forms of relief, including
the civil penalty of $2,500 set forth in section 17536. Since
multiple victims are involved he prays for a penalty for each
violation, but this does not elevate each violation to a separate
cause of action. . . . We hold that the Attorney General has only
one cause of action against a defendant for violating section
17500, but that the amount of civil penalties which may be
imposed under section 17536 is dependent upon the number of
‘violations’ committed by a defendant.” (9 Cal.3d at p. 288,
italics added.) Because, as we have seen, the court in Jayhill
had already explained that the cause of action for violating
section 17500 is an equitable action (Jayhill, at p. 286), the clear
implication of the decision in Jayhill is that even when the
Attorney General or a district attorney seeks civil penalties as
well as injunctive relief in such an action, the action under the
FAL remains an equitable action, and, as such, is to be tried by
the court, rather than by a jury.
     In 1992, Business and Professions Code section 17536 was
amended to provide that “[i]n 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,


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              Opinion of the Court by Cantil-Sakauye, C. J.


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.” (Stats. 1992, ch. 430, § 5, p. 1709, italics added.) This
wording directly tracks the language that was added to section
17206 of the UCL in the same 1992 legislation. (See, ante, p. 13.)
Again, this terminology makes it clear that the Legislature
intended that the amount of civil penalties under the FAL is to
be determined by the court, not by a jury.
         As with respect to the UCL, past decisions of both this
court and the Courts of Appeal have consistently described the
civil cause of action authorized by the FAL as an equitable
action that is to be tried by the court rather than a jury,
including when the action is one brought by a government
attorney and seeks civil penalties as well as injunctive relief.
(See, e.g., Jayhill, supra, 9 Cal.3d at p. 286; Fletcher v. Security
Pacific National Bank (1979) 23 Cal.3d 442, 452 [“the basic
equitable principles underlying [Business and Professions Code]
section 17535 arm the trial court with broad discretionary power
. . . ‘. . . to accomplish complete justice between the parties’ ”];
People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1091
(Overstock.com) [the “ ‘ “equitable” . . . “remedial power granted
under [the UCL and FAL] is extraordinarily broad” ’ ”].)
     Like the choice of the term “unfair” in the UCL, the
governing substantive standard of the FAL — prohibiting
advertising that is “untrue or misleading” (Bus. & Prof. Code,
§ 17500, italics added) — is set forth in broad and open-ended
language that is intended to permit a court of equity to reach


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             Opinion of the Court by Cantil-Sakauye, C. J.


any novel or creative scheme of false or misleading advertising
that a deceptive business may devise. (See, e.g., Kwikset Corp.
v. Superior Court (2011) 51 Cal.4th 310, 320; Overstock.com,
supra, 12 Cal.App.5th 1064, 1091 [“ ‘ “Probably because false
advertising and unfair business practices can take many forms,
the Legislature has given the courts the power to fashion
remedies to prevent their ‘use or employment’ in whatever
context they may occur” ’ ”].) As this court explained in Kasky
v. Nike (2002) 27 Cal.4th 939, the FAL prohibits “ ‘not only
advertising which is false, but also advertising which[,]
although true, is either actually misleading or which has a
capacity, likelihood or tendency to deceive or confuse the public.’
[Citation.] Thus, to state a claim under either the UCL or the
false advertising law, based on false advertising or promotional
practices, ‘it is necessary only to show that “members of the
public are likely to be deceived.” ’ ” (Kasky, at p. 951, quoting
Leoni v. State Bar (1985) 39 Cal.3d 609, 626 and Committee on
Children’s Television, Inc. v. General Foods Corp. (1983)
35 Cal.3d 197, 211 (Com. on Children’s Television).)13
      It is true that the broad reach and scope of the FAL’s
untrue or misleading standard is often framed in language
(whether members of the public are likely to be deceived) that is
not, on its face, beyond the ken of a jury. As employed in the
FAL (as well as in the UCL), however, a determination that
advertising poses a sufficient risk or tendency to deceive or

13
      As noted above (ante, p. 11), the UCL contains an
overlapping prohibition of impermissible advertising, barring,
in addition to “any unlawful, unfair or fraudulent business act
or practice,” any “unfair, deceptive, untrue or misleading
advertising.” (Bus. & Prof. Code, § 17200.)


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             Opinion of the Court by Cantil-Sakauye, C. J.


confuse the public may potentially result in an injunctive order
prohibiting what may be a common and widely utilized
advertising, labeling, or promotional practice. (See, e.g., Chern
v. Bank of America (1976) 15 Cal.3d 866, 875-876 [challenge to
common bank practice of calculating interest rate advertised as
“per annum” on the basis of a 360-day year]; Com. on Children’s
Television, supra, 35 Cal.3d 197, 205-215, 222-223 [challenge to
children’s television advertising representing that breakfast
foods with high sugar content are “ ‘healthful and nutritious,’ ”
and labeling such foods “ ‘ “cereals” ’ ” rather than “ ‘candy
breakfasts’ ”].) In the FAL and UCL settings, this standard —
whether members of the public are likely to be deceived — has
been understood to call for the exercise of the type of equitable
discretion and judgment traditionally employed by a court of
equity. As in the case of the UCL, the crucial issue in cases
under the FAL does not typically involve the type of ordinary
factfinding assigned to a jury, but rather calls for an equitable
judgment to determine whether an often undisputed advertising
or promotional practice presents a sufficient tendency to deceive
or confuse the public so as to support invocation of the FAL’s
remedies. As the breadth of the cases arising under the FAL
attests, this determination calls for consideration of a wide
variety of factors that prior cases and past administrative
experience have shown may render an affirmative statement (or
a failure to disclose) in a product label, packaging, or in other
advertising or promotional practices misleading in a particular
context.14 And, again as in the UCL context (see ante, p. 23),


14
      For a general discussion of the numerous and complex
factors and considerations that may affect the determination


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             Opinion of the Court by Cantil-Sakauye, C. J.


given the capacity of the FAL’s standard to be applied
expansively to encompass all of the novel ways in which
advertising or promotional material may be misleading, it is
important that trial courts are required to set forth their
reasoning for a determination that the FAL has been violated so
that a body of precedent can evolve to inform businesses of
advertising practices they must avoid.
      In Brady v. Bayer Corp. (2018) 26 Cal.App.5th 1156, for
example, the Court of Appeal determined that the One A Day
label on a bottle of gummy vitamins that required, in
“miniscule” instructions on the back of the label (id. at p. 1159),
that two gummies be taken daily to provide the recommended
daily vitamin dosage was sufficiently potentially misleading to
support a cause of action for violation of the FAL. The Brady
court pointed out that despite the well understood traditional
meaning of the One A Day brand, consumers who take one
gummy a day “end up receiving only half the daily vitamin
coverage they think they are getting.” (Brady at p. 1160.) In
the course of its opinion, the Brady court discussed at some
length a number of factors that past decisions had considered
and balanced in determining whether a product label could be
found sufficiently misleading to violate the FAL, including
“common sense,” the factual context in which literally true or
literally false statements are made, the degree to which back-of-
the-label qualifiers ameliorate any tendency to mislead, and the
tendency of particular brand names to mislead. (Brady, at



whether advertising should properly be viewed as deceptive or
misleading, see Developments in the Law — Deceptive
Advertising (1967) 80 Harv. L.Rev. 1005, 1038-1063.


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             Opinion of the Court by Cantil-Sakauye, C. J.


pp. 1165-1174.) Considering these factors as a whole, the Brady
court found that the One A Day label had a sufficient “ ‘capacity,
likelihood or tendency to deceive or confuse the public’ ” to
support a cause of action under the FAL. (Brady, at p. 1173.)
      As a further example, in Day v. AT&T Corp. (1998)
63 Cal.App.4th 325, the Court of Appeal determined that
although the defendant phone company’s policy of rounding up
charges for phone calls longer than a minute to the next full
minute was permissible under the “filed rate” doctrine, the
failure of the packaging of defendant’s prepaid phone cards to
disclose this rounding-up practice was sufficiently misleading to
violate the FAL. In reaching this conclusion, the Day court
considered but distinguished two earlier out-of-state decisions
that had rejected a claim by ordinary phone subscribers that a
telephone company’s failure to disclose the rounding-up practice
was misleading. The court relied on the fact that unlike
ordinary phone bills that disclosed to consumers that all phone
calls were charged for full minutes, “[t]he phone cards in
question, whose outer packagings do not reveal the practice of
rounding up, are prepaid. A consumer cannot read any
materials provided by the carrier with the card before buying the
card, which will advise him or her of the practice. Based on the
advertising a consumer will not know that whole minutes are
being credited for each fraction of a minute until the card has
been used.” (Day, at p. 334.) Under these circumstances, the
Day court concluded “that the practices alleged here were likely
to mislead, confuse or deceive members of the public.” (Ibid.)
      And in Overstock.com, supra, 12 Cal.App.5th 1064, the
Court of Appeal upheld a trial court finding that the defendant
online bargain retailer had violated the FAL through its online


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             Opinion of the Court by Cantil-Sakauye, C. J.


advertising practices. The defendant had used a number of
different methods to indicate the purported bargain nature of its
prices. At first, its advertisements displayed a “list price” that
was shown stricken through, along with the retailer’s own lower
price and the difference that the consumer would assertedly
save. Later, the advertisements changed “list price” to “compare
at,” and thereafter, to “compare.” The evidence at trial showed,
however, that (1) the defendant failed to have a reliable
procedure in place to verify that the comparator prices were
realistic and (2) that the prices being compared frequently were
not for the same or similar item. In affirming the trial court’s
finding that the challenged advertising was false or misleading
within the meaning of the FAL, the Overstock.com court relied
in part on the Federal Trade Commission (FTC) Guides Against
Deceptive Pricing (16 C.F.R. § 233 (2020)). (Overstock.com,
supra, 12 Cal.App.5th at p. 1081.) That FTC guide sets forth in
considerable detail the numerous ways in which advertised
pricing practices may be misleading or deceptive. (See 16 C.F.R.
§§ 233.1-233.5 (2020).) Specifically with respect to retail value
comparisons, the guide provides that the advertiser “should be
reasonably certain that the higher price he advertises does not
appreciably exceed the price at which substantial sales of the
article are being made in the area — that is, a sufficient number
of sales so that a consumer would consider a reduction from the
price to represent a genuine bargain or saving” and also that the
compared merchandise is “of essentially similar quality and
obtainable in the area.” (16 C.F.R. § 233.2(a), (c) (2020).)
      The Court of Appeal decision in Overstock.com illustrates
that, as with the determination whether a business practice is
unfair within the meaning of the UCL, the complexities and


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             Opinion of the Court by Cantil-Sakauye, C. J.


nuances that are often involved in the determination whether
an advertisement should properly be considered untrue or
misleading for purposes of the FAL are often ameliorated by
judicial reference to the relevant guidelines developed by the
FTC regarding deceptive advertising. (See generally Stern, Cal.
Practice Guide: Bus. & Prof. Code § 17200 Practice, supra,
§§ 4:46-4:80.4, pp. 4-14 to 4-32.)      The great variety and
complexity of contexts in which the potentially misleading
nature of advertising may arise and must be evaluated can be
gleaned from a simple listing of the numerous guidelines, in
addition to the Guides Against Deceptive Pricing relied upon in
Overstock, that the FTC has published relating to deceptive
advertising. (See Guides Against Bait Advertising [16 C.F.R.
§§ 238.0-238.4 (2020)]; Guides for the Advertising of Warranties
and Guarantees [16 C.F.R. §§ 239.1-239.5 (2020)]; Guides for
Advertising Allowances and Other Merchandising Payments
and Services [16 C.F.R. §§ 240.1-240.15 (2020)]; Guide
Concerning Use of the Word “Free” and Similar Representations
[16 C.F.R. § 251.1(a)-(i) (2020)]; Guides for Private Vocational
and Distance Education Schools [16 C.F.R. §§ 254.0-254.7
(2020)]; Guides Concerning Use of Endorsements and
Testimonials in Advertising [16 C.F.R.§§ 255.0-255.5 (2020)];
Guide Concerning Fuel Economy Advertising for New
Automobiles [16 C.F.R. §§ 259.1-259.4 (2020)]; Guides for the
Use of Environmental Marketing Claims [16 C.F.R. §§ 260.1-
260.17 (2020)].)
      And a brief look at just one of these FTC guidelines — the
Guides Concerning Use of Endorsements and Testimonials in
Advertising — provides a good indication of the type of equitable
consideration and evaluation of a substantial variety of factors


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             Opinion of the Court by Cantil-Sakauye, C. J.


that often goes into the determination whether advertising is
properly considered untrue or misleading for purposes of the
FAL. The guide on endorsements declares, for example, that
“[e]ndorsements must reflect the honest opinions, findings,
beliefs, or experience of the endorser,” and that “[a]n advertiser
may use an endorsement of an expert or celebrity only so long
as it has good reason to believe that the endorser continues to
subscribe to the views presented. An advertiser may satisfy this
obligation by securing the endorser’s views at reasonable
intervals where reasonableness will be determined by such
factors as new information on the performance or effectiveness
of the product, a material alteration in the product, changes in
the performance of competitors’ products, and the advertiser’s
contract commitments.” (16 C.F.R. § 255.1 (a), (b) (2020).) This
FTC guide also distinguishes between advertising that uses
“consumer endorsements” and advertising that uses “expert
endorsements.” (Id., §§ 255.2, 255.3 (2020).) With respect to
consumer endorsements, the guide provides in part: “An
advertisement employing endorsements by one or more
consumers about the performance of an advertised product or
service will be interpreted as representing that the product or
service is effective for the purpose depicted in the
advertisement. Therefore, the advertiser must possess and rely
upon adequate substantiation, including, when appropriate,
competent and reliable scientific evidence, to support such
claims made through endorsements in the same manner the
advertiser would be required to do if it had made the
representation directly, i.e., without using endorsements.” (Id.,
§ 255.2(a) (2020).) With respect to expert endorsements, the
guide requires that “the endorser’s qualifications must in fact


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             Opinion of the Court by Cantil-Sakauye, C. J.


give the endorser the expertise that he or she is represented as
possessing with respect to the endorsement,” and that “the
endorsement must be supported by an actual exercise of that
expertise in evaluating product features or characteristics with
respect to which he or she is expert and which are relevant to an
ordinary consumer’s use of or experience with the product and
are available to the ordinary consumer. This evaluation must
have included an examination or testing of the product at least
as extensive as someone with the same degree of expertise would
normally need to conduct in order to support the conclusions
presented in the endorsement.” (Id., § 255.3(a), (b) (2020).)
Further, the guide provides with respect to all endorsers that
“[w]hen there exists a connection between the endorser and the
seller of the advertised product that might materially affect the
weight or credibility of the endorsement (i.e., the connection is
not reasonably expected by the audience), such connection must
be fully disclosed.” (Id., § 255.5 (2020).) Finally, the guide
discusses numerous hypothetical examples that further explain
the guide’s provisions. (See id., §§ 255.1-255.5 (2020).)
      Thus, as past FAL decisions and the numerous FTC
guidelines indicate, the determination whether an advertising
or promotional practice should properly be found untrue or
misleading within the meaning of the FAL depends upon the
exercise of the type of equitable discretion and judgment
typically employed by a court of equity.            Federal cases
examining whether an advertising practice is sufficiently
deceptive to violate analogous federal consumer protection
statutes also support this conclusion. (See, e.g., FTC v. Colgate-
Palmolive Co. (1965) 380 U.S. 374, 385-392 [discussing
competing considerations involved in determining whether an


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                         SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


undisclosed televised mock-up of a product demonstration could
properly be found to constitute deceptive advertising even if the
underlying product claim was true]; FTC v. Mary Carter Paint
Co. (1965) 382 U.S. 46, 47-48 [upholding FTC finding that
advertisement offering a free can of paint if the consumer
bought a can of the same paint at the advertised price was
deceptive when the manufacturer never sold single cans of
paint, even if the advertised price was a fair price for a single
can of comparable paint]; FTC v. Direct Mktg. Concepts, Inc
(D.Mass. 2008) 569 F.Supp.2d 285, 298-299 [discussing
numerous factors to be considered in determining whether an
advertiser had sufficient “substantiation for the representation
prior to making it in an advertisement” so as to render the
advertisement nondeceptive].)15


15
       At oral argument, counsel for Nationwide suggested that
in federal court juries often decide such questions in actions
under the FTC Act in which civil penalties are sought. Under
the FTC Act, however, civil penalties may be sought only for a
defendant’s violation of a prior cease and desist order (15 U.S.C.
§§ 45(l), 45(m)(1)(B)) or for a defendant’s knowing violation of a
specific trade regulation rule (45 U.S.C. § 45(m)(1)(A)).
Although federal courts have held that there is a right to a jury
trial in such actions, the jury in such actions does not determine
whether the practice is unfair or deceptive within the meaning
of the FTC Act, but rather determines only whether the
defendant violated the existing cease and desist order or the
specific trade regulation rule. (See, e.g., United States v. J.B.
Williams Co. (2d Cir. 1974) 498 F.2d 414, 421-430; U.S. v. Dish
Network, LLC (C.D.Ill. 2010) 754 F.Supp.2d 1002, 1003-1004.
See also 45 U.S.C. § 45(m)(2) [providing that when the cease and
desist order was not issued against the particular defendant
from whom civil penalties are sought, upon request “the court
shall . . . review the determination of law made by the


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             Opinion of the Court by Cantil-Sakauye, C. J.


      Furthermore, past FAL decisions also make clear the
propriety and importance of a court’s exercise of its equitable
authority not only in determining whether an advertisement is
untrue or misleading, but also in determining (1) the number of
violations for which a defendant may properly be held
responsible (see, e.g., Jayhill, supra, 9 Cal.3d 283, 288-289;
Overstock.com, supra, 12 Cal.App.5th 1064, 1087-1088; People
v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1249-1255; People
ex rel. Kennedy v. Beaumont Investment, Ltd. (2003)
111 Cal.App.4th 102, 127-130 (Beaumont Investment); People v.
Toomey (1985) 157 Cal.App.3d 1, 22-23; People v. Superior Court
(Olson), supra, 96 Cal.App.3d 181, 197-198), and (2) the
reasonable amount of civil penalties to be imposed for each
violation. (See, e.g., Overstock.com, supra, 12 Cal.App.5th at
pp. 1087-1091; Beaumont Investment, supra, 111 Cal.App.4th at
pp. 130-131; People v. First Federal Credit Corp. (2002)
104 Cal.App.4th 721, 733-734.)
       In sum, in light of the language and legislative history of
the FAL and the relevant judicial precedent, we believe it is
clear that, as with the UCL, the Legislature intended that the
civil cause of action embodied in the FAL would be tried by a
court of equity rather than by a jury in all FAL actions,
including instances in which the Attorney General or another
governmental entity seeks civil penalties for a violation of the
FAL as well as injunctive relief.




Commission . . . that the act or practice which was the subject of
such proceeding constituted an unfair or deceptive act or
practice in violation of subsection (a)” (italics added)].)


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              Opinion of the Court by Cantil-Sakauye, C. J.


       IV. UNDER THE CALIFORNIA CONSTITUTION, IS
     THERE A CONSTITUTIONAL RIGHT TO JURY TRIAL IN
      A UCL OR FAL ACTION WHEN THE PEOPLE SEEK
      BOTH INJUNCTIVE RELIEF AND CIVIL PENALTIES?
       As already noted, in our recent decision in Shaw, we
explained that “even when the language and legislative history
of a statute indicate that the Legislature intended that a cause
of action established by the statute is to be tried by the court
rather than by a jury, if the California constitutional jury trial
provision itself guarantees a right to a jury trial in such a cause
of action, the Constitution prevails and a jury trial cannot be
denied.” (Shaw, supra, 2 Cal.5th at p. 994.) Thus, we turn to
the question whether, notwithstanding the Legislature’s intent
that such actions be tried by the court rather than a jury, the
jury trial provision of the California Constitution itself
guarantees a right to jury trial in an action brought by the
People under the UCL or FAL that seeks both injunctive relief
and civil penalties.
      A. General California Constitutional Jury Trial
         Principles
       Article I, section 16 of the California Constitution — the
jury trial provision — states in relevant part that “[t]rial by jury
is an inviolate right and shall be secured to all. . . .” From the
outset of our state’s history, our courts have explained that this
provision was intended to preserve the right to a civil jury as it
existed at common law in 1850 when the jury trial provision was
first incorporated into the California Constitution. (See, e.g.,
Cassidy v. Sullivan (1883) 64 Cal. 266, 266; Koppikus v. State
Capitol Comm’rs (1860) 16 Cal. 248, 253-255.) As this court
observed in People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d
283 (One 1941 Chevrolet Coupe): “ ‘The right to trial by jury

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              Opinion of the Court by Cantil-Sakauye, C. J.


guaranteed by the Constitution is the right as it existed at
common law at the time the Constitution was adopted. . . . It is
the right to trial by jury as it existed at common law which is
preserved; and what that right is, is a purely historical question,
a fact which is to be ascertained like any other social, political
or legal fact. The right is the historical right enjoyed at the time
it was guaranteed by the Constitution.’ ” (Id. at pp. 286-287.)
“Our state Constitution essentially preserves the right to a jury
in those actions in which there was a right to a jury trial at
common law at the time the Constitution was first adopted.”
(Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1175
(Crouchman).)
       Pursuant to this historical approach, as a general matter
the California Constitution affords a right to a jury trial in
common law actions at law that were triable by a jury in 1850,
but not in suits in equity that were not triable by a jury in 1850.
(C & K Engineering Contractors v. Amber Steel Co. (1978)
23 Cal.3d 1, 8-9 (C & K Engineering).) In applying this test, our
cases have explained that the form or title of a statutory cause
of action is not controlling and that if the substance of the cause
of action is one that would have been triable by a jury at common
law, there is a right to a jury trial even if the statute’s
designation might suggest that it is an equitable proceeding.
(See, e.g., One 1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 299.)
“ ‘In determining whether the action was one triable by a jury at
common law, the court is not bound by the form of the action but
rather by the nature of the rights involved and the facts of the
particular case — the gist of the action. A jury trial must be
granted where the gist of the action is legal, where the action is
in reality cognizable at law.’ ” (Ibid.) In the One 1941 Chevrolet


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                          SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


Coupe decision, for example, the court held that the gist of the
action at issue in that case — a civil lawsuit by the government
seeking forfeiture of an automobile that was allegedly used to
illegally transport a prohibited drug — was legal because at
common law a similar cause of action for forfeiture of otherwise
lawful property that was allegedly used for unlawful purposes
was triable by a jury in a court of law. (Id. at pp. 297-300.) The
court ruled that the fact that the statutory provision authorizing
the cause of action designated the forfeiture action as a “ ‘special
proceeding’ ” did not change the legal nature of the action. (Id.
at p. 299.)
       The court in One 1941 Chevrolet Coupe, supra, 37 Cal.2d
283, further explained that the fact that the statute under which
the forfeiture proceeding in that case was brought was enacted
after the adoption of the California Constitution did not in itself
bring the statutory cause of action outside the guarantee of the
constitutional jury trial provision. The court observed in this
regard: “ ‘The constitutional right of trial by jury is not to be
narrowly construed. It is not limited strictly to those cases in
which it existed before the adoption of the Constitution but is
extended to cases of like nature as may afterwards arise. It
embraces cases of the same class thereafter arising.” (One 1941
Chevrolet Coupe, at p. 300.) In explaining why the lawsuit at
issue was of “ ‘like nature’ ” or “ ‘the same class’ ” as the common
law action at law, the court stated: “ ‘At common law, prior to
the adoption of the Constitution, a party against whom the
forfeiture of property used in violation of law (then a carriage,
wagon, horse or mule, now usually an automobile), was sought
to be enforced was entitled to a trial by jury. Consequently such
right exists now.’ ” (Ibid.; see also Franchise Tax Bd. v. Superior


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                          SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


Court (2011) 51 Cal.4th 1006, 1012 [“We look to whether a claim
arising under a modern statute is ‘of like nature’ or ‘of the same
class’ as a common law right of action”].)
       In a case like One 1941 Chevrolet Coupe that involves a
single cause of action that at common law in 1850 was triable
only by a jury, or conversely a case involving a single cause of
action that at common law was triable only by the court (see,
e.g., People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1245
[action for injunctive relief to abate a nuisance]), the
determination whether the gist of the action in question is legal
or equitable is relatively straightforward. When a case involves
multiple causes of action or multiple issues, some of which are
legal in nature and would have been triable by a jury at common
law and some of which are equitable in nature and would have
been triable by the court at common law, the analysis is
somewhat more complex.
      B. Cases Involving Severable Legal and Equitable
         Issues
      When the legal and equitable causes of action or issues
presented in a case are severable, past California decisions
establish that a party retains the right to a jury trial of the
severable legal issues and a court trial of the severable equitable
issues. (See, e.g., Connell v. Bowes (1942) 19 Cal.2d 870, 871 [“It
is now established in this state . . . that if a complaint states two
complete rights of action, one legal and one equitable, a jury trial
may be obtained upon the issues raised by the legal cause”]; see
generally 7 Witkin, supra, Trial, § 86, p. 113 [“Where the action
is of a hybrid character, raising legal and equitable issues, a
party is entitled to a jury trial of the severable legal issues”].)



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              Opinion of the Court by Cantil-Sakauye, C. J.


         At the same time, California decisions have also
repeatedly held that when severable legal and equitable causes
of action or issues are present in a single proceeding, the trial
court generally has authority to determine in what order the
matters should be heard, and if the equitable issue is tried by
the court first and if the court’s resolution of that issue
determines a matter that would otherwise be resolved by a jury
with regard to the legal claim or issue, the court’s resolution of
the matter will generally be binding and may leave nothing for
a jury to resolve. (See, e.g., Raedeke v. Gibraltar Sav. & Loan
Assn. (1974) 10 Cal.3d 665, 671 (Raedeke) [“It is well established
that, in a case involving both legal and equitable issues, the trial
court may proceed to try the equitable issues first, without a jury
. . . , and that if the court’s determination of those issues is also
dispositive of the legal issues, nothing further remains to be
tried by a jury”].) And although a trial court retains discretion
regarding the order in which the issues should be tried, the
governing California cases express a preference that the
equitable issues be tried first. (See, e.g., Orange County Water
Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252,
355 [citing cases].) This general “equity first preference” is a
long standing feature of California law and has always been
viewed as fully compatible with the right to jury trial embodied
in the California Constitution. (See, e.g., Raedeke, supra,
10 Cal.3d at pp. 670-671;16 Connell v. Bowes, supra, 19 Cal.2d

16
      In Raedeke itself, the court, after confirming the existence
and validity of the “equity first preference,” held that a plaintiff
who brings an action presenting both legal and equitable issues
can avoid the potential loss of a jury trial on common issues by
electing to forgo the equitable claim and thus removing the


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             Opinion of the Court by Cantil-Sakauye, C. J.


870, 872; Thomson v. Thomson (1936) 7 Cal.2d 671, 682-683;
Angus v. Craven (1901) 132 Cal. 691, 699 (conc. opn. of
Henshaw, J.); Swasey v. Adair (1891) 88 Cal. 179, 180; Fish v.
Benson (1886) 71 Cal. 428, 433-435; Lestrade v. Barth (1862)
19 Cal. 660, 671-672.)17
      C. Cases Involving Nonseverable Legal and
         Equitable Issues
     Unlike proceedings in which multiple legal and equitable
causes or issues are severable, when a cause of action involves



equitable issues from the case. (See Raedeke, supra, 10 Cal.3d
at pp. 671-672.)
17
      Contrary to the implication of the Court of Appeal decision
below (see Nationwide Biweekly, supra, 24 Cal.App.5th at
p. 456), this court’s recent decision in Shaw, supra, 2 Cal.5th
983 did not purport to abrogate or change this state’s well-
established “equity first preference” doctrine. In Shaw, we
interpreted one provision of the statute before the court —
Health and Safety Code section 1278.5, subdivision (m), which
provided that nothing in the new legislation “abrogate[s] or
limit[s] any other theory of liability or remedy otherwise
available at law” — as preserving in full a plaintiff’s
complementary cause of action under Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, including the plaintiff’s right
to obtain a jury resolution of the Tameny claim. (Shaw, supra,
2 Cal.5th at p. 1006.) Shaw did not purport to overrule or
disapprove the numerous California decisions cited above that
have applied the “equity first preference” doctrine for more than
a century.
      Because in this case the equitable and legal aspects of the
UCL and FAL actions are nonseverable and because Nationwide
has not questioned the continued vitality of the “equity first
preference” doctrine, we have no occasion to consider whether
there is any reason to reevaluate this doctrine or to determine
its proper application in a particular context.


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              Opinion of the Court by Cantil-Sakauye, C. J.


legal and equitable aspects that are not severable California
decisions have relied upon “the gist of the action” standard in
determining whether the action should be considered legal or
equitable for purposes of the constitutional jury trial issue. (See,
e.g., C & K Engineering, supra, 23 Cal.3d 1, 9-11 [in action
seeking damages for breach of contract (“in form an action at
law”) but relying solely on “the equitable doctrine of promissory
estoppel,” court concluded “[t]he ‘gist’ of such an action is
equitable”]; Central Laborers’ Pension Fund v. McAfee, Inc.
(2017) 17 Cal.App.5th 292, 344-350 [in action by shareholders
seeking money damages for breach of corporate directors’ and
officers’ breach of fiduciary duty, court concluded that the gist of
the action was equitable]; Interactive Multimedia Artists, Inc. v.
Superior Court (1998) 62 Cal.App.4th 1546, 1552-1556 [in action
seeking money damages for breach of a trustee’s fiduciary duty,
court held that the gist of the action was equitable when, under
the applicable Delaware law, the determination of whether a
breach occurred turned on a multifactor “ ‘entire fairness test’ ”
that required the application of equitable principles in
“weighing various considerations in order to reach a just
result”]; Martin v. County of Los Angeles (1996) 51 Cal.App.4th
688, 695-697 [although a tort defendant’s claim for “equitable
indemnity” seeking recovery of money damages for the
proportional fault of a cotortfeasor involved application of
equitable principles, court concluded the gist of the claim was
legal because ascertaining the relative fault of cotortfeasors for
equitable indemnity “involves determinations of rights and
liabilities traditionally arising in common law suits for
negligence”].) In our decision in C & K Engineering, we noted
that “[a]lthough we have said that ‘the legal or equitable nature


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              Opinion of the Court by Cantil-Sakauye, C. J.


of a cause of action ordinarily is determined by the mode of relief
to be afforded . . . ,’ the prayer for relief in a particular case is
not conclusive” and “ ‘[t]he fact that damages is one of a full
range of possible remedies does not guarantee . . . the right to a
jury.’ ” (C&K Engineering, at p. 9, citations omitted.)
      Two Court of Appeal decisions that have grappled with the
proper characterization of an action as legal or equitable
involved statutory causes of action, like those at issue in the
present case, in which both equitable and legal relief may be
awarded.
      In the first case, Southern Pac. Transportation Co. v.
Superior Court (1976) 58 Cal.App.3d 433 (Southern Pac.
Transportation), the plaintiffs, who claimed that they had made
improvements to real property in the good faith belief that they
were the owners of the property, brought the underlying action
against the true owner of the property seeking damages as good
faith improvers of the property. The action was brought
pursuant to a recently enacted “good faith improver” statutory
scheme (Code Civ. Proc., §§ 871.1-871.7) that authorized a good
faith improver of real property to bring an independent civil
cause of action for relief. (Id., § 871.3.) The legislation provided
that in such an action the court, under appropriate
circumstances, “may . . . effect such adjustment of the rights,
equities, and interests of the good faith improver, the owner of
the land, and other interested parties . . . as is consistent with
substantial justice to the parties under the circumstances of the
particular case.” (Id., § 871.5.)
       The question before the Court of Appeal in Southern Pac.
Transportation was whether the plaintiffs had a right to a jury
trial in their action against the owner. The plaintiffs claimed

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that because their complaint sought only money damages from
the landowner, the action was one at law in which they had a
right to a jury trial. The Court of Appeal rejected the plaintiffs’
contention. After noting that the right to a jury trial under the
California Constitution is the right “existing at common law at
the time the Constitution was adopted” (Southern Pac.
Transportation, supra, 58 Cal.App.2d at p. 436), the court
explained: “Because the provisions of [Code of Civil Procedure]
sections 871.1-871.7 have no counterpart in English law,
classification of the action as either legal or equitable depends
upon characterization of the nature of the relief sought.
Although [the plaintiffs] assert that they seek damages only, by
bringing an action under section 871.3, they have invited the
court to ‘effect such an adjustment of the rights, equities, and
interests’ of the parties as is consistent with substantial justice.
(§ 871.5.) ‘Under this section, the court has considerable
discretion to select appropriate relief from the full range of
equitable and legal remedies.’            (Legislative Committee
Comment — Assembly, to § 871.5.)”                  (Southern Pac.
Transportation, supra, 58 Cal.App.3d at p. 437.)
      The Court of Appeal continued: “The fact that damages is
one of a full range of possible remedies does not guarantee [the
plaintiffs] the right to a jury for their good faith improver action.
We recognize that where a complaint raises both legal and
equitable issues, a jury trial may be obtained upon the issues
raised by the legal cause. [Citation.] Here, however, there is no
possibility of severing the legal from the equitable. The trier of
fact must determine whether to quiet title in the improver on
the condition he pay to the landowner the value of the
unimproved land, or whether and in what amount, to award


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damages to the improver, or whether to require a completely
different form of relief. [Citation.] Such a determination is not
susceptible of division into one component to be resolved by the
court and another component to be determined by a jury. Only
one decision can be made, and it must make a proper adjustment
of the ‘rights, equities, and interests’ of all the parties involved.”
(Southern Pac. Transportation, supra, 58 Cal.App.3d at pp. 437-
438.)
      Under these circumstances the Southern Pac.
Transportation court concluded: “Because of the wide range of
equitable and legal relief authorized by Code of Civil Procedure
section 871.5, it would be an impossible task for a jury to
determine the appropriate relief and to resolve the rights,
equities, and interests of all of the parties. . . . We have
concluded, therefore, that it is the function of the court and not
the jury to be the trier of fact in a good faith improver action.”
(Southern Pac. Transportation, supra, 58 Cal.App.3d at p. 438.)
     In this court’s subsequent decision in C & K Engineering,
supra, 23 Cal.3d 1, we specifically cited and discussed the
Southern Pac. Transportation decision with approval, quoting at
some length the Court of Appeal’s reasoning in that case.
(C & K Engineering, supra, 23 Cal.3d at p. 11.)
       In the second case, DiPirro, supra, 153 Cal.App.4th 150,
the Court of Appeal addressed whether there is a right to a jury
trial in an action seeking enforcement of the provisions of the
Safe Drinking Water and Toxic Enforcement Act of 1986 (Health
& Saf. Code, §§ 25249.5-25249.13), a legislative measure
adopted by the voters through the initiative process and most




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              Opinion of the Court by Cantil-Sakauye, C. J.


commonly known as Proposition 65.18 That measure — which
generally prohibits businesses from (1) knowingly discharging
chemicals known to cause cancer or reproductive toxicity into
any source of drinking water (Health & Saf. Code, § 25249.5) or
(2) knowingly exposing any individual to such chemicals
without first giving clear and reasonable warning (id.,
§ 25249.6) — authorizes government officials and, under
specified circumstances, private persons, to bring a cause of
action seeking injunctive relief and civil penalties against any
person who violates the statute. (Id., § 25249.7.) Like the UCL
and FAL, Proposition 65 provides that once a statutory violation
is found, the court may issue an injunction and shall impose a
civil penalty not to exceed $2,500 per day for each violation
(Health & Saf. Code, § 25249.7, subds. (a), (b)(1)), and, again
like the UCL and FAL, Proposition 65 sets forth a list of multiple
factors, including “[a]ny other factor that justice may require,”
that the court is to consider in determining the amount of the
civil penalties to be imposed. (Health & Saf. Code, § 25249.7,
subd. (b)(2)(G).)19    Because the determination whether a


18
      The legislation was adopted by the voters at the
November 4, 1986 General Election. The Legislature has
amended relevant provisions of the act on numerous occasions
since its inception. (See Stats. 1999, ch. 599, § 1; Stats. 2001,
ch. 578, § 1; Stats. 2002, ch. 323, § 1; Stats. 2003, ch. 62, § 185;
Stats. 2013, ch. 581, § 1; Stats. 2014, ch. 71, § 90; Stats. 2014,
ch. 828, § 1; Stats 2017, ch. 510, § 1.) For convenience, we shall
refer to the legislation in its current form as Proposition 65.
19
      Health & Safety Code section 25249.7, subdivision (b)(2)
provides in full: “In assessing the amount of a civil penalty for
a violation of this chapter, the court shall consider all of the
following:



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statutory violation has been established itself triggers the
availability of both injunctive relief and civil penalties, the
equitable and legal aspects of the action are not severable.
      In deciding whether the plaintiff had a right to a jury trial
in the civil action authorized by Proposition 65, the DiPirro
court examined the statutory scheme as a whole to determine
whether the gist of the action was legal or equitable. (DiPirro,
supra, 153 Cal.App.4th at pp. 180-184.) In concluding that the
legislation is “thoroughly infused with equitable principles that
must be considered and adjudicated in an enforcement action”
(id. at p. 180), the court relied in part on the fact that
“Proposition 65 is ‘ “a remedial statute intended to protect the
public” ’ ” (ibid.), along with its determination that the remedies
authorized by the act were primarily equitable in nature,
including injunctive relief to prevent the sale of offending
products that lack the required warning. (Id. at p. 181.)
     The DiPirro court acknowledged that Proposition 65 also
authorized an award of civil penalties (DiPirro, supra,



      “(A) The nature and extent of the violation.
      “(B) The number of, and severity of, the violations.
      “(C) The economic effect of the penalty on the violator.
      “(D) Whether the violator took good faith measures to
comply with this chapter and the time these measures were
taken.
      “(E) The willfulness of the violator’s misconduct.
      “(F) The deterrent effect that the imposition of the penalty
would have on both the violator and the regulated community
as a whole.
      “(G) Any other factor that justice may require.”


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153 Cal.App.4th at p. 181) and explicitly recognized “ ‘the
“general rule” ’ that monetary relief is a legal remedy, ‘and an
award of statutory damages may serve purposes traditionally
associated with legal relief, such as compensation and
punishment.’ ” (Id. at p. 182.) The Court of Appeal pointed out,
however, that the civil penalties that are authorized by
Proposition 65 are to be determined by a highly discretionary
consideration of multiple factors “that do not primarily take into
account any harm suffered by the plaintiff . . . [and are] the kind
of calculation traditionally performed by judges rather than a
jury . . . .” (DiPirro, at p. 182, fn. omitted.) Emphasizing that
“[t]he Act is informational and preventative rather than
compensatory in its nature and function” (ibid.) and that “[t]he
primary right to bring an action for civil penalties pursuant to
the Act is . . . given to the state rather than individuals seeking
compensation” (id. at p. 183), the DiPirro court determined that
“the statutory remedies afforded by the Act, including civil
penalties, are not damages at law, but instead constitute
equitable relief appropriate and incidental to enforcement of the
Act, which do not entitle the plaintiff to a jury trial” (id. at
p. 184).
      D. Application of Constitutional Principles to UCL
         and FAL Actions
      As we shall explain, in light of the particular nature of the
civil causes of action authorized by the UCL and FAL, we
conclude that the gist of a civil action under the UCL and FAL
is equitable rather than legal in nature. Such causes of action
are equitable either when brought by a private party seeking
only an injunction, restitution, or other equitable relief or when
brought by the Attorney General, a district attorney, or other


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governmental official seeking not only injunctive relief and
restitution but also civil penalties. Accordingly, we conclude
that there is no right to a jury trial in such actions under the
California Constitution.
      To begin with, the statutory causes of action established
by the UCL and FAL are clearly not of like nature or of the same
class as any common law right of action. (Cf. One 1941 Chevrolet
Coupe, supra, 37 Cal.2d 832, 300.) As the leading treatise on
California’s consumer protection statutes explains, under the
common law only a business adversely affected by trademark or
trade name infringement by a business competitor could file an
action for unfair competition against the competitor and such an
action could be brought only as a suit in equity. (See Cal.
Practice Guide: Stern, Bus. & Prof. Code § 17200 Practice,
supra, § 2:1, p. 2-1.) “At common law, deceived consumers had
no claim for unfair competition. This made little sense, since
ultimately it is the consumer who is harmed by a business that
passes off goods or services as genuine, or as those of
another. . . . No matter; consumers were left without a claim or
remedy. This was the era of caveat emptor [that is, let the buyer
beware].” (Id., § 2:3, p. 2-1)
      The UCL and FAL were enacted for the specific purpose of
creating new rights and remedies that were not available at
common law. (See, e.g., Bank of the West v. Superior Court
(1992) 2 Cal.4th 1254, 1263-1264.) The statutes deliberately
broaden the types of business practices that can properly be
found to constitute unfair competition (see, e.g., Barquis, supra,
7 Cal.3d at p. 112), and eliminate a number of elements that
were required in common law actions for fraud (see, e.g., In re
Tobacco II Cases (2009) 46 Cal.4th 298, 312; Com. on Children’s


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Television, supra, 35 Cal.3d 197, 211). The statutes explicitly
authorize government officials and injured private individuals
to obtain injunctive relief to prevent a business from continuing
to use the practice to the detriment of other consumers and to
obtain restitution and other clearly equitable relief. (Bus &
Prof. Code, §§ 17203, 17204.) Such causes of action for unfair
competition that authorize injunctive relief against unfair or
deceptive business practices had no close or analogous
counterpart at common law.
       Furthermore, when the Legislature adopted the civil
penalty provisions of the UCL and FAL in 1972 and 1965
respectively, permitting government officials, and government
officials alone, to seek civil penalties along with injunctive or
other equitable relief in the civil actions such officials bring
under the UCL and FAL (see Jayhill, supra, 9 Cal.3d at p. 288),
the causes of action under the UCL and FAL continued to
constitute causes of action that were not of like nature or of the
same class as any common law action. Prior to 1850, early
English law embodied numerous statutes imposing civil
penalties for a variety of specifically delineated impermissible
business practices — like using false weights and measures in
the sale of a product or failing to pay the appropriate excise
taxes due — that were enforced by the government through a
civil action in the Court of Exchequer in which a jury was
available. (See One 1941 Chevrolet Coupe, supra, 37 Cal.2d at
pp. 295-296 & fn. 15.) We are unaware, however, of any early
English statute that defined the business conduct proscribed by
the statute in the type of broad and sweeping language adopted
in the UCL and FAL, which was specifically intended to reach
novel but offensive business practices that were not


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encompassed by more specific statutory prohibitions. (See, e.g.,
Barquis, supra, 7 Cal.3d at p. 112.) Furthermore, the early
English statutes generally set forth a specific amount of civil
penalty that was to be imposed for each violation; again, we are
aware of no such statute that required the amount of the civil
penalty to be determined by a consideration of multiple factors
comparable to those set out in the relevant provisions of the
UCL and FAL. (Bus. & Prof. Code, §§ 17206, subd. (b), 17536,
subd. (b).) Finally, and perhaps most significantly, unlike the
UCL and FAL, none of the early English statutes authorized a
prosecuting official to seek and obtain, in the same action, a civil
penalty and an injunction that would explicitly restrain the
business from committing the prohibited conduct in the future.20


20
       In his seminal article on the right to civil jury trial,
Professor Fleming James observed that, at common law, when
a plaintiff was seeking to obtain both injunctive relief and civil
penalties for a defendant’s alleged statutory violation, the
plaintiff would have been required to bring two separate actions
— one in equity and one in law. As Professor James explained:
“B’s violation of A’s statutory right . . . might entitle A to an
injunction, to compensatory damages, and to a penalty. The
right to any relief would turn on whether B violated the statute.
A might get a determination of that issue without a jury in an
equity suit, seeking an injunction and perhaps compensatory
damages as incidental to an injunction. Or he might get such
determination in an action at law for damages or for the penalty.
Since equity refused to enforce a penalty and the law would not
give an injunction, two suits would be required for complete
relief. A had the choice which to bring first. And the first
determination of the common issue (violation vel non) would
bind the parties in the second action. The plaintiff then had the
power to choose the mode of trial of the common issue, and he
could so exercise it as to leave no room for judicial discretion.”


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      Accordingly, in the absence of a comparable common law
counterpart, in deciding whether there is a right to a jury trial
under the California Constitution, we must look to the statutory
scheme as a whole to determine whether the gist of a cause of
action under the UCL or the FAL seeking both injunctive relief
and civil penalties is legal or equitable.
      For nearly a half century, Court of Appeal decisions have
explicitly and uniformly held that actions under the UCL and
FAL are equitable in nature and are to be tried by the court and
not by a jury, including when the remedies sought are civil
penalties as well as injunctive or other equitable relief. (See,
e.g., People v. Witzerman (1972) 29 Cal.App.3d 169, 176-177
(Witzerman); People v. Bestline Products, Inc. (1976)
61 Cal.App.3d 879, 915-916; People v. First Federal Credit Corp.
(2002) 104 Cal.App.4th 721, 732-733; People v. Bhakta, supra,
162 Cal.App.4th 973, 977-979; People ex rel. Feuer v. Superior
Court (Cahuenga’s The Spot) (2015) 234 Cal.App.4th 1360,
1384.) Although this court has not previously been directly
asked to decide this issue itself, we note that as recently as 2015,
in Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298,
our court, in responding to the defendant’s concern that the
plaintiff’s false advertising and unfair competition claims in
that case “would be evaluated by a lay jury applying a nebulous



(James, Right to a Jury Trial in Civil Actions (1963) 72 Yale L.J.
655, 671-672, fns. omitted.) Thus, as a general matter, at
common law when a plaintiff sought both injunctive relief and
civil penalties based upon a business’s alleged violation of a
statute, the business was by no means guaranteed that the
question whether it violated the statute would be determined by
a jury rather than by a court.


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‘reasonable consumer’ standard,” stated that “these claims are
decided by a judge, not a jury.” (Id. at p. 322, citing Hodge v.
Superior Court (2006) 145 Cal.App.4th 278, 284-285 [action
brought by private plaintiff seeking equitable relief] and
Witzerman, supra, 29 Cal.App.3d 169, 176-177 [action brought
by public official seeking injunctive relief and civil penalties].)
       The Court of Appeal decision under review here was the
first appellate decision to reach a contrary conclusion. Although
the Court of Appeal suggested that the numerous prior Court of
Appeal decisions cited above were either not on point or did not
fully analyze the jury trial issue (Nationwide Biweekly, supra,
24 Cal.App.5th at p. 457), our review of those appellate court
decisions does not support the Court of Appeal’s
characterization of those decisions. Those prior decisions,
contrary to the Court of Appeal’s suggestion, directly analyze
the question whether there is a right to a jury trial in such
actions under the California Constitution and conclude that
there is no state constitutional right to a jury trial in such
actions.
       The 1972 decision in Witzerman, supra, 29 Cal.App.3d 169
— the initial decision in this line of cases — demonstrates this
point. Witzerman was an enforcement action brought by the
Attorney General under the FAL seeking both injunctive relief
and civil penalties. After noting that the defendants’ jury trial
claim relied on both the federal and state constitutional jury
trial rights, the court initially addressed the state constitutional
claim and rejected the defendants’ argument that the trial
court’s denial of a jury trial was improper under the California
Constitution because the issues to be tried were assertedly legal
rather than equitable in nature. (Witzerman, at p. 176.) The


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court in Witzerman explained: “Assuming, without so deciding,
that the civil penalties sought represent legal rather than
equitable relief, we do not believe that in this case such issues
could have been severed from the equitable ones. The same
alleged misconduct on the part of appellants was the basis for
both types of relief sought by the People. (Cf. Jaffe v. Albertson
Co. [(1966)] 243 Cal.App.2d 592, 610 [53 Cal.Rptr. 25].) Under
these circumstances trial to the court of the People’s case for
injunctive relief disposed of as well the People’s case for relief by
way of civil penalties.          (Cf. Veale v. Piercy [(1962)]
206 Cal.App.2d 557, 562-563 [24 Cal.Rptr. 91].)” (Witzerman,
supra, 29 Cal.App.3d at pp. 176-177.) Contrary to the Court of
Appeal’s critique below, only after rejecting the defendants’
state constitutional jury trial claim did the court in Witzerman
turn to and reject the defendants’ federal Sixth Amendment
claim. (Witzerman, at p. 177.)
       Although the Witzerman decision directly addressed and
rejected the defendant’s state constitutional jury trial claim, it
is not clear that the decision applied the proper mode of analysis.
After correctly observing that the equitable and legal aspects of
the FAL action before it were nonseverable, the court did not
explicitly apply the “gist of the action” test but instead appears
to have applied the “equity first preference” doctrine.
(Witzerman, supra, 29 Cal.App.3d at pp. 176-177.) Nonetheless,
we conclude that the Witzerman court reached the correct result.
      All parties before us agree that the legal and equitable
aspects of the UCL and FAL actions at issue are nonseverable
and that the gist of the action standard applies. The legal and
equitable aspects of these actions are nonseverable not only
because, as the Witzerman court indicated (Witzerman, supra,


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29 Cal.App.3d at pp. 176-177), the determination whether a
defendant’s alleged conduct constitutes a violation of the statute
provides the basis for all of the relief authorized by the statutes,
but also because the amount of civil penalties that would be
appropriate may well depend on the equitable remedies,
including restitution, that are or are not imposed. (See, e.g.,
Overstock.com, supra, 12 Cal.App.5th 1064, 1088-1089; People
ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1567.)
       With respect to the application of the gist of the action
standard, our independent analysis of the UCL and FAL causes
of action as a whole convinces us that the gist of the civil causes
of action authorized by the UCL and FAL must properly be
considered equitable, rather than legal, in nature.
      To begin with, the bulk of the remedies provided for in the
statutes — injunctive relief, restitution, and other clearly
equitable remedies such as the appointment of a receiver (see
Bus. & Prof. Code, §§ 17203, 17535) — are clearly equitable in
nature. As the legislative history of both the UCL and FAL
make clear, the primary objective of both statutes is preventive,
authorizing the exercise of broad equitable authority to protect
consumers from unfair or deceptive business practices and
advertising.
      Second, although the statutes also authorize in actions
brought by the Attorney General, a district attorney, or other
government officials (but not private parties), the imposition of
civil penalties — a type of remedy that in some contexts is
properly considered legal in nature — the UCL and FAL
statutes specify that in assessing the amount of the civil penalty
to be imposed under these statutes, the court is afforded broad
discretion to consider a nonexclusive list of factors that include

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the relative seriousness of the defendant’s conduct and the
potential deterrent effect of such penalties, the type of
qualitative evaluation and weighing of a variety of factors that
is typically undertaken by a court and not a jury. (Bus. & Prof.
Code, §§ 17206, 17536.) Notably, the civil penalties that may
be awarded under the UCL and FAL, unlike the classic legal
remedy of damages, are noncompensatory in nature; they
require no showing of actual harm to consumers and are not
based on the amount of losses incurred by the targets of unfair
practices or misleading advertising. Like the civil penalties at
issue in Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147-
148, although the civil penalties under the UCL and FAL “may
have a punitive or deterrent aspect, their primary purpose is to
secure obedience to statutes and regulations imposed to assure
important public policy objectives. . . . The focus of [both]
statutory scheme[s] is preventative.” (Kizer, at p. 147-148,
citation omitted.) And like the civil penalties in Kizer (id. at
p. 147), the civil penalties obtained by the government in actions
under the UCL and FAL are to be utilized for the enforcement
of the statutes in question. (See Bus. & Prof. Code, §§ 17206,
subd. (c), 17536, subd. (c).)
      Finally, as discussed above (ante, pp. 14-21, 29-37), the
expansive and broadly worded substantive standards that are
to be applied in determining whether a challenged business
practice or advertising is properly considered violative of the
UCL or FAL call for the exercise of the flexibility and judicial
expertise and experience that was traditionally applied by a
court of equity. Particularly in light of the equitable nature of
the substantive standards that apply in UCL and FAL actions
— both in actions brought by private parties and by government


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officials — we conclude that the gist of the civil causes of action
authorized by the UCL and FAL must properly be considered
equitable in nature. Accordingly, we conclude that under the
California Constitution, there is no right to a jury trial in a cause
of action under the UCL and FAL, including when the action is
brought by a government official and seeks both injunctive relief
and civil penalties.
        We emphasize that this conclusion does not deprive a
defendant in a UCL or FAL action of any constitutional right
afforded by the jury trial provision of the California
Constitution.      As we have explained (ante, p. 41), that
constitutional provision grants the right to jury trial in actions
“ ‘of like nature’ ” “ ‘or of the same class’ ” in which a jury trial
was provided at common law in 1850, when the jury trial
provision of the California Constitution was first adopted. (One
1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 300.) The consumer
protection actions authorized in the UCL and FAL are not of like
nature or of the same class as an action that was triable by jury
at common law. In actions like those under the UCL and FAL,
in which the equitable and legal aspects are nonseverable, there
is no constitutional right to a jury trial when, as here, the gist of
the action is equitable rather than legal.
     In sum, we conclude that there is no right to a jury trial
under the California Constitution in a cause of action under the
UCL or FAL, including an action in which civil penalties as well
as an injunction or other equitable relief are sought. Because
our conclusion rests in significant part on the fact that the
substantive standards embodied in the UCL and FAL
contemplate the exercise of the type of equitable discretion and
judgment traditionally applied by a court of equity, we have no


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occasion in this case to decide how the California constitutional
jury trial provision applies to other statutory causes of action
that authorize both injunctive relief and civil penalties.21


21
       In concluding that the gist of the causes of action created
by the UCL and FAL is equitable even when civil penalties as
well as injunctive relief are sought, we have relied on the specific
attributes of the California UCL and FAL statutes, as well as
the established understanding of the scope of the California
constitutional jury trial provision.
       Every other state has adopted consumer protection
legislation somewhat comparable to the UCL and FAL. (See,
e.g., Stern, Cal. Practice Guide: Bus. & Prof. Code § 17200
Practice, supra, §§ 2:54-2:62, pp. 2-22 to 2-24; Nat. Consumer
Law Center, Unfair and Deceptive Acts and Practices (9th ed.
2016) § 1.1., p. 1.) Although the numerous unfair or deceptive
practice statutes in other jurisdictions differ from the California
statutes in a variety of respects, we note that a substantial
majority of other state courts that have addressed the question
whether there is a right to a jury trial in civil actions brought
under those states’ unfair or deceptive practice laws have
concluded that there is no right to a jury trial in such actions.
(See Nunley v. State (Ala. 1993) 628 So.2d 619, 621-622; People
v. Shifrin (Colo.App. 2014) 342 P.3d 506, 512-513; Associated
Inv. Co. Ltd. Partnership v. Williams Assocs. IV (Conn. 1994)
645 A.2d 505, 508-512; Martin v. Heinold Commodities (Ill.
1994) 643 N.E.2d 734, 753; Nei v. Burley (Mass. 1983)
446 N.E.2d 674, 678-679; State by Humphrey v. Alpine Air
Products, Inc. (Minn.Ct.App. 1992) 490 N.W.2d 888, 895; State
ex rel. Douglas v. Schroeder (Neb. 1986) 384 N.W.2d 626, 629-
630; State v. State Credit Assoc. (Wn.Ct.App. 1983) 657 P.2d
327, 330.) Several states have reached a contrary conclusion,
but none of those cases involved a statute that created a cause
of action in which both injunctive relief as well as damages or
civil penalties could be obtained. (See Robinson v. McDougal
(Ohio Ct.App. 1988) 575 N.E.2d 469, 474; State v. Credit Bureau
of Loredo, Inc. (Tex. 1975) 530 S.W.2d 288, 290-292; State v.


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             Opinion of the Court by Cantil-Sakauye, C. J.


      E. Inapplicability of Tull
      As already noted, in reaching a contrary conclusion, the
Court of Appeal relied heavily upon the United States Supreme
Court’s decision in Tull, supra, 481 U.S. 412. As we explain, for
a variety of reasons we conclude that the Court of Appeal’s
reliance upon Tull was unwarranted.
       Tull involved a civil action filed by the federal government
against a real estate developer, alleging that the developer had
dumped fill on wetlands without a permit in violation of the
federal Clean Water Act. (33 U.S.C. § 1251 et seq.) As
authorized by that act, the government sought both injunctive
relief (id., § 1319(b)) and civil penalties (id., § 1319(d)). The
court in Tull observed, however, that at the time the complaint
in that case was filed the developer had sold most of the
properties in question to a third party, and “[i]njunctive relief
was therefore impractical except with regard to a small portion
of the land.” (Tull, supra, 481 U.S. at p. 415.) After denying the
developer’s demand for a jury trial, the trial court conducted a
15-day bench trial, concluded that the property on which the
defendant had admittedly dumped fill constituted “wetlands”
within the meaning of the federal statute, and ultimately
imposed injunctive relief and civil penalties on defendant.
      On appeal, the United States Supreme Court reversed,
concluding that the developer was entitled to a jury trial under
the Seventh Amendment to the federal Constitution. (Tull,


Abbott Labs. (Wis. 2012) 816 N.W.2d 145, 156-159.) (See
generally Annot., Constitutional Right to Jury Trial in Cause of
Action under State Unfair or Deceptive Trade Practices Law
(1997) 54 A.L.R.5th 631.)


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supra, 481 U.S. at pp. 417-425.) The court in Tull acknowledged
that a proceeding under the Clean Water Act seeking both
injunctive relief and civil penalties is analogous to two different
common law causes of action — an action to abate a nuisance in
which there was no right to a jury trial and an action in debt to
impose a civil penalty in which there was a right to a jury trial.
(Tull, at pp. 420-421). However, the court concluded that it need
not decide which common law action was the closer historical
analog, because prior Supreme Court precedent established that
“characterizing the relief sought is ‘[m]ore important’ than
finding a precisely analogous common-law cause of action in
determining whether the Seventh Amendment guarantees a
jury trial.” (Id. at p. 421, citing Curtis v. Loether (1974) 415 U.S.
189, 196.)
       Thereafter, in discussing the relief sought in the action,
the court in Tull focused primarily on the civil penalties that
had been sought and obtained in the action, emphasizing that
“[a] civil penalty was a type of remedy at common law that could
only be enforced in courts of law” (Tull, supra, 481 U.S.
at p. 422) in which a jury trial was available. Although the
government had also sought and obtained injunctive relief in the
action, the Tull court observed that under the applicable federal
statute the government was free to seek an equitable remedy
independent of legal relief (id. at p. 425) and further explained
that prior federal decisions established that “if a ‘legal claim is
joined with an equitable claim, the right to jury trial on the legal
claim, including all issues common to both claims, remains
intact. The right cannot be abridged by characterizing the legal
claim as “incidental” to the equitable relief sought’ ” (ibid., citing
Curtis v. Loether, supra, 415 U.S. at p. 196, fn. 11). (See also,


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e.g., Ross v. Bernhard (1970) 396 U.S. 531, 537-538 [“where
equitable and legal claims are joined in the same action, there
is a right to jury trial on the legal claims which must not be
infringed either by trying the legal issues as incidental to the
equitable ones or by a court trial of a common issue existing
between the claims”]; Dairy Queen v. Wood (1962) 369 U.S. 469,
473 [requiring “that any legal issues for which a trial by jury is
timely and properly demanded be submitted to a jury” “whether
the trial judge chooses to characterize the legal issues presented
as ‘incidental’ to equitable issues or not”]; Beacon Theatres v.
Westover (1959) 359 U.S. 500, 510-511 [“only under the most
imperative circumstances . . . can the right to a jury trial of legal
issues be lost through prior determination of equitable claims”].)
Thus, because prior federal decisions had interpreted the
Seventh Amendment generally to require a jury trial whenever
a legal claim is joined with an equitable claim, the court in Tull
held that, for Seventh Amendment purposes, the fact that the
government sought civil penalties in the action before it was
itself sufficient to conclude that the developer had “a
constitutional right to a jury trial to determine his liability on
the legal claims.” (Tull, supra, 481 U.S. at p. 425.)22



22
      Although the court in Tull held that the Seventh
Amendment granted the developer a right to a jury trial on the
issue of liability, the majority went on to hold that the Seventh
Amendment did not require a jury trial on the amount of civil
penalties.    The majority explained that because “highly
discretionary calculations that take into account multiple
factors are necessary in order to set civil penalties under the
Clean Water Act” and “[t]hese are the kinds of calculations
traditionally performed by judges,” “the Seventh Amendment


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              Opinion of the Court by Cantil-Sakauye, C. J.


       For a number of reasons, we conclude that the Court of
Appeal erred in relying upon the Tull decision. First and most
fundamentally, the decision in Tull rested exclusively on the
United States Supreme Court’s interpretation of the right to
civil jury trial embodied in the Seventh Amendment to the
United States Constitution. The federal civil jury trial provision
of the Seventh Amendment applies only to civil trials in federal
court; federal decisions explicitly hold that the civil jury trial
provision of the Seventh Amendment does not apply to state
court proceedings. (See, e.g., Osborn v. Haley (2007) 549 U.S.
225, 252, fn. 17; Gasperini v. Ctr. For Humanities, Inc. (1996)
518 U.S. 415, 432; Curtis v. Loether, supra, 415 U.S. at p. 192,
fn. 6; Minn. & St. Louis R. R. v. Bombolis (1916) 241 U.S. 211,
217-223.) Instead, the right to jury trial in state court
proceedings is governed by the provisions and judicial
interpretation of each state’s own constitutional jury trial
provision.23


does not require a jury trial for that purpose in a civil action.”
(Tull, supra, 481 U.S. at p. 427.)
      Justice Scalia, joined by Justice Stevens, dissented from
the latter holding, objecting that by fashioning a civil action in
which liability but not the amount of damages is to be decided
by a jury, “the Court creates a form of civil adjudication I have
never encountered.” (Tull, supra, 481 U.S. at p. 428 (dis. opn. of
Scalia, J.).)
23
      We note that since the decision in Tull, a number of state
courts, in interpreting and applying their own state
constitutional civil jury trial provisions, have concluded, unlike
the Tull decision, that there is no right to a jury trial in statutory
causes of action authorizing both injunctive relief and civil
penalties. (See, e.g., State ex rel. Darwin v. Arnett (Ariz.Ct.App.
2014) 330 P.3d 996, 1002; Commissioner of Environmental


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             Opinion of the Court by Cantil-Sakauye, C. J.


      In California, the constitutional right to a civil jury trial
under the California Constitution is entirely independent of the
federal constitutional civil jury trial right under the Seventh
Amendment (Cal. Const., art. I, § 24), and past California cases
have not hesitated to decline to follow the federal interpretation
of the Seventh Amendment when the federal interpretation has
been found inconsistent with a proper reading of the California
provision. (See, e.g., Jehl v. Southern Pacific Co. (1967)
66 Cal.2d 821, 835 & fn. 17; Rankin v. Frebank Co. (1975)
47 Cal.App.3d 75, 91-92.) The Tull decision rested on several
points in which the federal interpretation of the Seventh
Amendment departs from California’s interpretation of the
California jury trial provision.
      Initially, unlike actions under the UCL and FAL in which
the equitable (injunctive relief) and legal (criminal penalties)
nature of the available remedies are unquestionably
nonseverable features of a single cause of action (see Jayhill,
supra, 9 Cal.3d at p. 288), in Tull the court held that under the
applicable Clean Water Act, the equitable (injunctive relief) and



Protection v. Connecticut Bldg. Wrecking Co. (Conn. 1993)
629 A.2d 1116, 1121-1123; Dept. of Environmental Protection v.
Emerson (Me. 1992) 616 A.2d 1268, 1271; Dept. of
Environmental Quality v. Morley (Mich.Ct.App. 2015)
885 N.W.2d 892, 897; State v. Irving Oil Corp. (Vt. 2008)
955 A.2d 1098, 1106-1108; State v. Evergreen Freedom
Foundation (Wn.Ct.App. 2002) 49 P.3d 894, 908-909.) A few
states that have traditionally looked to the Seventh Amendment
in interpreting their own state jury trial provision have followed
Tull. (See, e.g., Dept. of Revenue v. Printing House (Fla. 1994)
644 So.2d 498, 500-501; Bendick v. Cambio (R.I. 1989) 558 A.2d
941, 943-944.)


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legal (criminal penalties) remedies were severable. (See Tull,
supra, 481 U.S. at p. 425 [“[T]he Government was free to seek
an equitable remedy in addition to, or independent of, legal
relief. Section 1319 [the relevant provision of the Clean Water
Act] does not intertwine equitable relief with the imposition of
civil penalties. Instead each kind of relief is separably
authorized in a separate and distinct statutory provision.
Subsection (b), providing injunctive relief, is independent of
subsection (d), which provides only for civil penalties.”].) And
the Tull court went on to rely on the severable nature of the
claims at issue in finding that the issue of liability was to be
tried by a jury rather than by the court, because federal
decisions dictate that in cases involving severable legal and
equitable issues, the legal issues should be tried prior to the
equitable issues. (Tull, supra, 481 U.S. at p. 425 [“In such a
situation, if a ‘legal claim is joined with an equitable claim, the
right to jury trial on the legal claim . . . remains intact. . . .
Thus, petitioner has a constitutional right to a jury trial to
determine his liability on the legal claims”].) By contrast, as
noted above, the governing California decisions hold that when
the legal and equitable aspects are severable, there is a
preference for trying the equitable issues first and that if
common facts are resolved in a manner that obviates the need
to try the legal issue, there is no right under the California
Constitution to have the legal issues submitted to the jury. (See
ante, pp. 43-44; Hoopes v. Dolan (2008) 168 Cal.App.4th 146,
156-158 [discussing difference in California and federal rules];
see also Hamilton, Federalism and the State Civil Jury Rights
(2013) 65 Stan. L.Rev. 851, 864-865, 869-870 [same].) Thus, the
conclusion reached in Tull under the Seventh Amendment is not


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necessarily the same result as would follow under California
law.
      Moreover, the Tull court’s analysis of the jury trial
question also demonstrates a second difference between the
interpretation and application of the federal and state
constitutional civil jury trial provisions. As we have explained,
in cases in which a cause of action contains nonseverable legal
and equitable aspects, California cases undertake a qualitative,
holistic analysis of the action in its entirety to determine
whether the gist of the action is legal or equitable, that is,
whether the legal or equitable aspects predominate. (See ante,
pp. 44-51.)24 In Tull, by contrast, the court, in determining that

24
      California is by no means alone in employing a holistic,
qualitative standard for determining whether an action
involving both legal and equitable aspects should be
characterized as legal or equitable for purposes of an applicable
constitutional jury trial provision. (See, e.g., Miller v. Carnation
Co. (Colo.App. 1973) 516 P.2d 661, 663 [“Where there are legal
and equitable claims joined in the complaint the court must
determine whether the basic thrust of the action is equitable or
legal in nature”]; Commissioner of Environmental Protection v.
Connecticut Bldg. Wrecking Co., supra, 629 A.2d 1116, 1121 [“In
a case that involves both legal and equitable claims, ‘ “whether
the right to a jury trial attaches depends upon the relative
importance of the two types of claims” ’ ”]; Shaner v. Horizon
Bancorp. (N.J. 1989) 561 A.2d 1130, 1139 [“we have eschewed a
focus solely on the remedy sought and have espoused a more
eclectic view of the standards that serve to characterize the
essential nature of a cause of action in giving meaning and scope
to the right to a jury trial conferred by article I, paragraph 9 of
the New Jersey Constitution”]; Insurance Financial Services,
Inc. v. So. Carolina Ins. Co. (S.C. 1978) 247 S.E.2d 315, 318
[“Since the appellant has prayed for money damages in addition
to seeking equitable relief, characterization of the action as


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under the Seventh Amendment there is a right to a jury trial for
the statutory cause of action for civil penalties at issue in that
case, relied primarily on its determination that the civil
penalties in question were intended, at least in part, to be
punitive in nature, which in the court’s view was apparently
sufficient to render the action legal in nature and require a jury
trial. (Tull, supra, 481 U.S. at pp. 422-424.) In reaching this
conclusion, however, the Tull court did not take into account a
number of nonseverable equitable aspects of the action for civil
penalties at issue there. Thus, the court does not appear to have
thought it at all significant that the civil penalties were also
intended in part to further the equitable purpose of restitution.
(Ibid.) Moreover, and significantly, the court did not consider
that, unlike actions for civil penalties at common law that



equitable or legal depends on the appellant’s ‘main purpose’ in
bringing the action”]; Norback v. Bd. of Directors of Church
Extension Soc. (Utah 1934) 37 P.2d 339, 345 [“If the issues are
legal or the major issues legal, either party is entitled upon
proper demand to a jury trial; but, if the issues are equitable or
the major issues to be resolved by an application of equity, the
legal issues being merely subsidiary, the action should be
regarded as equitable and the rules of equity apply”]; Brown v.
Safeway Stores (Wn. 1980) 617 P.2d 704, 709 [“In determining
whether a case is primarily equitable in nature or is an action
at law, the trial court is accorded wide discretion [which] should
be exercised with reference to a variety of factors including, but
not necessarily limited to, [seven factors set forth in an earlier
Washington decision]”]; Hyatt Bros. ex rel. Hyatt v. Hyatt (Wyo.
1989) 769 P.2d 329, 333 [“the right to a jury trial in cases
involving mixed issues of law and equity [is] resolved by
examining the entire pleadings and all the issues raised to
determine whether the action is primarily legal in nature or
primarily equitable in nature”].)


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typically provided a specific and fixed penalty for each violation,
the civil penalties authorized by the statutory cause of action at
issue in that case were to be determined by the equitable
weighing and balancing of a number of factors similar to the list
of factors set forth in the UCL and FAL (see Tull, supra,
481 U.S. at p. 422, fn. 8) — a determination that the Tull court
itself recognized was more appropriate for a court than a jury.
(Id. at p. 427.) Thus, rather than determining whether the
statutory cause of action for civil penalties at issue should be
characterized as legal or equitable by considering all of the legal
and equitable aspects of that cause of action holistically, the Tull
court somewhat artificially severed the cause of action for civil
penalties into two parts — one that the court held is to be
decided by a jury and one that is to be decided by the court —
creating a novel type of cause of action that, as Justice Scalia’s
dissent in Tull pointed out, was unknown at common law. (Id.
at pp. 427-428 (dis. opn. of Scalia, J.).) As Tull demonstrates, in
applying the Seventh Amendment federal courts generally have
not applied the type of holistic gist of the action standard that
California decisions have utilized in applying California’s
constitutional jury trial provision, and thus the Tull decision is
distinguishable from the case before us on this ground as well.
       Finally, in addition to the differences attributable to
disparate interpretations of the federal and state constitutional
civil jury trial provisions, the decision in Tull is distinguishable
from the present case in yet another significant respect. Unlike
the relevant broadly worded and expansive substantive
standards embodied in the UCL and FAL — which, as we have
explained, call for the exercise of the type of equitable discretion
and judgment traditionally employed by a court of equity —


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under the statute at issue in Tull, the question of liability turned
simply on the question whether the defendant had, without a
permit, deposited fill into an area constituting “wetlands” within
the meaning of the Clean Water Act. (Tull, supra, 481 U.S. at
pp. 414-415.) The parties in Tull apparently did not dispute
that the substantive statutory standard of liability at issue in
that case involved the type of factual determination that in other
contexts has traditionally been made by juries. Accordingly, the
court in Tull had no occasion to decide whether a jury trial is
constitutionally required under the Seventh Amendment
whenever a statute permits the recovery of civil penalties, even
when the applicable substantive statutory standard clearly
contemplates the exercise of equitable judicial discretion and
judgment. We note in this regard that when the court in Tull
addressed a substantive standard as to which the exercise of
such equitable discretion was contemplated — that is, in
assessing the amount of civil penalties to be imposed through
“highly discretionary calculations that take into account
multiple factors . . . traditionally performed by judges” (Tull, at
p. 427) — the Tull court found that the trial court could properly
resolve that matter without violating the federal constitutional
civil jury trial right. (Ibid.)
      Because of the significant differences in the manner in
which the federal and California constitutional civil jury trial
provisions have been interpreted and applied and because the
court in Tull did not address a statutory standard, like those
involved in the UCL and FAL, which contemplates the exercise
of the type of equitable discretion typically undertaken by a




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              Opinion of the Court by Cantil-Sakauye, C. J.


court of equity, we conclude that the Court of Appeal’s reliance
upon the Tull decision was misplaced.25




25
       In its answer brief filed in this court, Nationwide
maintains that if this court rejects its state constitutional claim,
we should address the question whether it has a right to a jury
trial under the Sixth or Seventh Amendment to the United
States Constitution and should hold, notwithstanding the
absence of federal decisional support, that it has a right to jury
trial in a state court action under those federal provisions. The
Court of Appeal did not address these issues, neither the
petition for review nor any answer to the petition raised these
issues, and thus we decline to address those issues. (See Cal.
Rules of Court, rule 8.516(b)(1).)


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                         V. CONCLUSION
       For the reasons set forth above, we conclude that in causes
of action under the UCL or FAL seeking injunctive relief and
civil penalties, the gist of the actions is equitable, and there is
no right to a jury trial in such actions under California law
either as a statutory or constitutional matter. Given the specific
attributes of the UCL and FAL discussed above, we have no
occasion to determine whether there is a right to a jury trial in
other settings in which the government seeks injunctive relief
and civil penalties under other statutes authorizing those
remedies.
      The judgment of the Court of Appeal, holding that
Nationwide has a right to a jury trial under the California
Constitution in such actions, is reversed and the matter is
remanded to the Court of Appeal for further proceedings
consistent with this opinion.


                                       CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
GROBAN, J.




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                             S250047


             Concurring Opinion by Justice Kruger


      I concur in the judgment. I agree with the majority that
article I, section 16 of the California Constitution does not
guarantee a jury trial in this action for equitable relief and civil
penalties under the unfair competition law (UCL; Bus. & Prof.
Code, § 17200 et seq.) and false advertising law (FAL; Bus. &
Prof. Code, § 17500 et seq.). But I arrive at that conclusion by a
somewhat different—and narrower—path.
       As the majority notes, California courts have assumed for
decades that the UCL and FAL create causes of action that are
equitable in character and thus must be tried to a judge rather
than a jury. This assumption only makes sense, since, at their
inception, the only remedy under both statutes was injunctive
relief, the quintessential equitable remedy. Even today, only
equitable remedies are available to private parties who bring
UCL and FAL actions. (Bus. & Prof. Code, §§ 17203 [injunction
and restitution as remedies for UCL violation], 17535 [same for
FAL].)
       But many years after the statutes were first passed, the
Legislature authorized certain public officials—including,
primarily, the Attorney General and district attorneys—to seek
civil penalties as well as injunctive relief. (Bus. & Prof. Code,
§§ 17206 [UCL], 17536 [FAL].) This development has called into
question the courts’ long-held assumption about the availability
of jury trial. That is because government actions seeking civil
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


penalties, generally speaking, sound in law rather than equity
and thus carry with them a constitutional right of jury trial
under both the Seventh Amendment to the United States
Constitution (applicable in federal courts) and article I, section
16 of the California Constitution (applicable in state courts).
(Tull v. United States (1987) 481 U.S. 412, 420 (Tull); People v.
One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 295 & fn. 15.)
      It is not uncommon for the Legislature to enact a statutory
cause of action that has some equitable features and some legal
features. Our case law instructs that in such cases, we are to
determine which feature predominates in defining its essential
character—which, in the distinctive terminology of our
precedents, represents the “gist” of the action. (People v. One
1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 299; C & K
Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1,
9.) If the gist is legal, then the parties are constitutionally
entitled to a jury. If the gist is equitable, then they are not.1


1
       Despite what the term “gist” might otherwise call to mind,
the aim of this inquiry is not to identify a single essential
element at the action’s theoretical core. We instead try to
understand how the statutory cause of action, considered as a
whole, relates to the historical division between law and equity,
the goal being to place the cause of action appropriately among
its possible historical analogues.
       I do not believe federal law differs a great deal on this
basic point. Though the majority reads Tull as establishing a
strict rule that the plea for a legal remedy carries a jury trial
right notwithstanding any other substantial equitable
characteristics the action might have (maj. opn., ante, at pp. 67–
69), I do not read Tull this way. The high court’s case law has
long made clear that the federal jury trial inquiry turns on a


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                        Kruger, J., concurring


      Our cases also instruct that the nature of the remedies
sought is an important—if not necessarily controlling—
consideration in this analysis. (C & K Engineering Contractors
v. Amber Steel Co., supra, 23 Cal.3d at p. 9.) In some cases
where plaintiffs seek both equitable and legal remedies, courts
have determined whether jury trial is available by comparing
the relative significance of the two kinds of remedies. Where the
government asks for massive penalties and only very minor
injunctive restrictions on the defendant—or, conversely for
highly burdensome injunctive orders and only nominal
penalties—one form of relief might be deemed incidental to the
other and the jury trial right recognized, or not, accordingly. (Cf.
Tull, supra, 481 U.S. at pp. 424–425 [where relief “would be
limited primarily to civil penalties, since petitioner had already
sold most of the properties at issue[, the] potential penalty of




holistic examination of both “the nature of the action and of the
remedy sought”—a rule Tull cited without signaling any intent
to depart from it. (Tull, supra, 481 U.S. at p. 417; see also id. at
p. 422, fn. 6 [“Our search is for a single historical analog, taking
into consideration the nature of the cause of action and the
remedy as two important factors.”]; accord, e.g., Feltner v.
Columbia Pictures Television, Inc. (1998) 523 U.S. 340, 348 [7th
Amend. to the U.S. Const. intended to apply to actions “ ‘in
which legal rights were to be ascertained and determined’ ”
(italics omitted and added)].)
       In any event, Tull is distinguishable from this case on
other, more case-specific grounds, which I discuss later in this
opinion. We need not rely here on any broad generalizations
about how, if at all, the federal approach to the civil jury right
differs from California’s.



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                         SUPERIOR COURT
                        Kruger, J., concurring


$22 million hardly can be considered incidental to the modest
equitable relief sought”].)
       But that is not this case. The present case comes to us in
an early procedural posture—on a motion to strike the jury trial
demand from defendant’s answer—and the parties dispute both
the size of potential penalties and the significance of the
injunctive relief sought. It does not appear possible here to
characterize either form of relief as clearly predominant over, or
incidental to, the other. We must therefore look more broadly
at the bases for liability alleged in the complaint and the
relationships between these causes of action and between the
liability and remedy issues presented.
       Taking this broader look at the UCL, I agree with the
majority that the gist of the statutory action is equitable.2
Whatever type of relief a government plaintiff might seek in a
particular case, liability under the UCL inherently rests on
equitable considerations—considerations of a sort that only the
trial court can effectively weigh and determine. (Maj. opn., ante,

2
      The majority discusses the equitable character of the UCL
and FAL in detail only in part III of the opinion, which addresses
statutory jury trial rights. The majority concludes there that in
enacting and amending both statutes, “the legislative history
and legislative purpose of both statutes convincingly establish
that the Legislature intended that such causes of action under
these statutes would be tried by the court, exercising the
traditional flexible discretion and judicial expertise of a court of
equity . . . .” (Maj. opn., ante, at p. 10.) In its constitutional
analysis, the majority simply cross-references this discussion.
(Id. at p. 59.) Readers should not be confused, however, by this
organizational choice: The Legislature’s intent does not control
whether there is a constitutional right to jury trial. (See id. at
p. 39.)


                                  4
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


at pp. 17–21.) The central provision of the UCL, Business and
Professions Code section 17200, prohibits “unfair competition,”
which it defines to include “unfair” business practices.
Determining what is unfair calls on courts to exercise the sort of
flexible discretion that characterized the courts of equity—a
kind of judgment that juries have not historically made, nor are
well suited to make. It is hard to imagine drafting jury
instructions, for example, to embody the “unfairness” test
enunciated in Cel-Tech Communications, Inc. v. Los Angeles
Cellular Telephone Co. (1999) 20 Cal.4th 163, 187, which refers
to “conduct that threatens an incipient violation of an antitrust
law, or violates the policy or spirit” of those laws.
      The liability determinations at issue in Tull were of a
different character. The question was whether the defendant
had, without a permit, dumped fill into an area constituting
“wetlands” within the meaning of the Clean Water Act. (Tull,
supra, 481 U.S. at pp. 414–415.) The statutory rules governing
this determination were certainly complicated and technical.
(See 33 U.S.C. § 1344(f); 33 C.F.R. § 328.3(b) (2020).) But they
did not call on the decisionmaker’s equitable discretion, and no
one in Tull, including the court, disputed that this was the type
of factual determination that has traditionally been made by
juries in otherwise appropriate cases. Indeed, the Clean Water
Act also provides for criminal penalties for willful or negligent
violations (33 U.S.C. § 1319(c))—which means that in some set
of Clean Water Act cases, the relevant factual disputes are, of
necessity, resolved by juries. Tull is thus distinguishable from
this case by the nature of the liability decision there, which
required only the determination of the historical facts and the
application of legal standards to those facts—tasks central to


                                 5
         NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                          SUPERIOR COURT
                         Kruger, J., concurring


the traditional role of trial juries—in contrast to the balancing
of interests typically called for in assessing liability under the
UCL.
      But here is where my analysis differs from the majority’s:
While UCL liability can readily be characterized as dependent
on equitable considerations, I do not believe the same can be
said of liability under the FAL. To be sure, the FAL, much like
the UCL, is broadly written: The statute is designed to
encompass any novel scheme for misleading the public. (Maj.
opn., ante, at p. 29.) The statute makes claims relatively easy
to prove, compared to common law fraud, by employing a
negligence standard and omitting the elements of reliance and
injury; the plaintiff need show only that the challenged
advertisement or promotion is likely to mislead members of the
public. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.)3 But at
least by its text, the FAL does not create a standard of liability
that depends on the exercise of a court’s equitable judgment. No
balancing of harms and benefits or weighing of the parties’ and
public interests are involved in determining liability; no

3
        Business and Professions Code section 17500 defines the
scope of false advertising liability: “It is unlawful for any person
. . . with intent directly or indirectly to dispose of real or personal
property or to perform services . . . to make or disseminate or
cause to be made or disseminated before the public . . . any
statement, concerning that real or personal property or those
services . . . 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, or for any person . . . to so make . . . any
such statement as part of a plan or scheme with the intent not
to sell that personal property or those services, professional or
otherwise, so advertised at the price stated therein, or as so
advertised.”


                                   6
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                       SUPERIOR COURT
                       Kruger, J., concurring


equitable principles like laches or unclean hands come into play.
Rather, as other state courts have observed in evaluating
similar laws, the FAL in significant respects resembles the
common law cause of action for negligent misrepresentation, a
species of the tort of deceit. (See Bily v. Arthur Young &
Co. (1992) 3 Cal.4th 370, 407; cf. State v. Abbott Laboratories
(2012) 341 Wis.2d 510, 533 [816 N.W.2d 145, 156] [holding that
Wisconsin’s Deceptive Trade Practices Act, as “an essential
counterpart to the common law claim of ‘cheating,’ ” carries a
right to jury trial].) Though the FAL requires only a misleading
advertisement, not necessarily one containing express
falsehoods, the same is true for tortious deceit in California.
(Universal By-Products, Inc. v. City of Modesto (1974) 43
Cal.App.3d 145, 151 [“A misrepresentation need not be express
but may be implied by or inferred from the circumstances.”];
Sullivan v. Helbing (1924) 66 Cal.App. 478, 483 [“Fraudulent
representations may consist of half-truths calculated to deceive.
Thus a representation literally true is actionable if used to
create an impression substantially false.”].) At least considered
in isolation, then, nothing about the nature of liability
determination under the FAL suggests it sits beyond the scope
of the jury right.
       In characterizing the nature of the FAL action as
equitable, the majority emphasizes that appellate courts
analyzing FAL liability have discussed a “variety of factors”
relevant to whether a particular advertisement is misleading.
(Maj. opn., ante, at p. 31.) These appellate discussions, though,
tell us little about the legal or equitable character of FAL
liability. The issues before the appellate courts were ones of
legal sufficiency: whether allegations of misleading advertising


                                 7
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                       SUPERIOR COURT
                       Kruger, J., concurring


were sufficient to survive demurrer (Brady v. Bayer Corp. (2018)
26 Cal.App.5th 1156; Day v. AT & T Corp. (1998) 63 Cal.App.4th
325) or whether substantial evidence supported a trial court’s
finding of an FAL violation (People v. Overstock.com, Inc. (2017)
12 Cal.App.5th 1064 (Overstock.com)). In answering these
questions, the courts did cite a number of factual considerations
that supported the complaint’s or evidentiary showing’s
sufficiency, but those factual discussions are not particularly
suggestive of an inherently equitable approach to FAL liability.
What the appellate courts did in these cases does not differ in
any meaningful way from what courts do when they review
evidentiary sufficiency questions in cases involving causes of
action that are tried to juries, such as common law fraud. (See,
e.g., Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 393
[in suit for fraudulent inducement to enter into at-will
employment contract, evidence was insufficient to show reliance
where employment offer did not specifically guarantee the
plaintiff “would be employed there so long as his work was
satisfactory or that he could be fired only for good cause” or
contain any other “promises of long-term employment”]; AREI
II Cases (2013) 216 Cal.App.4th 1004, 1022 [detailing several
“facts and circumstances that permit a reasonable inference”
defendant participated in fraud].) Indeed, even in criminal
cases tried to juries, appellate decisions on sufficiency of
evidence often articulate a number of factual considerations to
guide the analysis. (See, e.g., People v. Banks (2015) 61 Cal.4th
788, 804–811 [detailed analysis of sufficiency of evidence to
show major participation in felony and reckless indifference to
human life]; People v. Koontz (2002) 27 Cal.4th 1041, 1081–1082




                                 8
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                         SUPERIOR COURT
                        Kruger, J., concurring


[discussing three nonexclusive factors relevant to sufficiency of
evidence for premeditation and deliberation].)
       None of the cases the majority cites discusses the
possibility of a jury trial when civil penalties are sought. Indeed,
the only case in which the issue could have arisen is
Overstock.com—the only action brought by a public plaintiff
entitled to seek civil penalties—but it was not raised there. Nor
do any of the cases hold or state that determining an FAL
violation requires weighing competing interests, applying
equitable doctrines such as laches, estoppel, or unclean hands,
or balancing the harms and benefits of a requested remedy.
Indeed, the considerations discussed in the opinions appear
fairly typical of issues that, in a jury trial, might be used by the
jury to resolve the question of liability under the FAL: the
inability of consumers to learn the terms of a prepaid phone card
before buying the card (Day v. AT & T Corp., supra, 63
Cal.App.4th at p. 334); the application of “common sense”
(Brady v. Bayer Corp., supra, 26 Cal.App.5th at p. 1165); the
possibility that a brand name by itself would mislead consumers
(id. at p. 1170); and the likelihood a consumer would understand
“ ‘Compare at’ ” in an advertisement boasting of a low price to
refer to another seller’s price for the same item (Overstock.com,
supra, 12 Cal.App.5th at p. 1081).
      The Overstock.com court did cite as consistent with its own
analysis a regulation of the Federal Trade Commission (FTC),
part of the agency’s Guides Against Deceptive Pricing (FTC
Guides), stating that price comparisons to other merchandise
can be “ ‘useful and legitimate’ ” when the comparison items are
of essentially similar quality and are obtainable in the area.
(Overstock.com, supra, 12 Cal.App.5th at p. 1081, quoting 16


                                  9
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                       SUPERIOR COURT
                       Kruger, J., concurring


C.F.R. § 233.2(c) (2017).) The majority holds this up as an
example of how “the complexities and nuances” of FAL liability
“are often ameliorated by judicial reference to the relevant
guidelines developed by the FTC regarding deceptive
advertising.” (Maj. opn., ante, at p. 34, citing Stern, Cal.
Practice Guide: Bus. & Prof. Code § 17200 Practice (The Rutter
Group 2019) §§ 4:46–4:80.4, pp. 4-14–4-32.)
      This overstates the significance of the FTC Guides to the
question before us. For one thing, the link between the FTC
Guides and liability under the FAL appears rather tenuous. The
FTC Guides are not comprehensive or definitive regulations
even for interpreting the FTC Act, and certainly nothing
suggests they were intended, or have functioned, to define
deceptive practices for purposes of state law.4 In any event,
while the FTC Guides offer guidance on what sort of practices
will be considered deceptive, none of this guidance appears to
turn on the application of equitable judgment. For example, the

4
      The FTC Guides on testimonials and endorsements, for
example, simply “provide the basis for voluntary compliance
with the law by advertisers and endorsers.” (16 C.F.R.
§ 255.0(a) (2020); see also id., § 260.1(a) (2020) [Guides on
environmental claims “help marketers avoid making
environmental marketing claims that are unfair or deceptive,”
but “do not operate to bind the FTC or the public.”]; FTC v. Mary
Carter Paint Co. (1965) 382 U.S. 46, 47–48 [“These, of course,
were guides, not fixed rules as such, and were designed to inform
businessmen of the factors which would guide Commission
decision.”].) And while the Stern treatise describes some of the
FTC Guides as potentially relevant to FAL liability, it gives no
examples of their use by courts for this purpose and does not
describe such use as common. (See Stern, Cal. Practice Guide:
Bus. & Prof. Code § 17200 Practice, supra, §§ 4:46, 4:72, 4:80.2–
4:80.4.)


                                10
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


Guides Concerning Use of Endorsements and Testimonials in
Advertising, which the majority describes as illustrating the
type of “equitable consideration” that goes into an FAL liability
determination (maj. opn., ante, at p. 35), covers such questions
as when an advertiser should confirm that the endorser’s views
have not changed (16 C.F.R. § 255.1(b) (2020)) and what kind of
substantiation must support the claims of effectiveness implied
by a consumer endorsement (id., § 255.2(a), (b) (2020)). The
FTC Guides illustrate the potential factual complexity of
deceptive advertising claims, but they do not support the
majority’s conclusion that deciding the merits of an FAL claim
“depends upon the exercise of the type of equitable discretion
and judgment typically employed by a court of equity.” (Maj.
opn., ante, at pp. 36–37.)5
      The majority also argues that because of the FAL’s
potential breadth, it is important that the FAL liability
standard be administered by trial courts, which can “set forth
their reasoning for a determination that the FAL has been
violated so that a body of precedent can evolve to inform
businesses of advertising practices they must avoid.” (Maj. opn.,
ante, at p. 31.) As an argument for cabining the scope of the
constitutional jury trial right, I find this reasoning
unpersuasive. Binding precedent is made only by appellate
courts, and an appellate decision on sufficiency of the evidence


5
     The same is true of the cited federal decisions upholding
FTC findings of deceptiveness (maj. opn., ante, at p. 37), such as
FTC v. Colgate-Palmolive Co. (1965) 380 U.S. 374, 384–390 and
FTC v. Mary Carter Paint Co., supra, 382 U.S. at pages 47 to 48:
They may show that deceptiveness can be factually complicated,
but not that it depends on application of equitable principles.


                                11
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


fills out the precedential picture regardless of whether trial was
to a jury or to the bench. And while it might be thought
desirable from some points of view to have all FAL actions heard
by judges, the same might be said for any number of civil causes
of action. Defendants in insurance bad faith cases, for example,
might well prefer bench trials and could argue that they, too,
need a body of precedent to guide their actions. But they get
such precedential guidance from appellate decisions on legal
issues. (E.g., Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th
713, 721–726 [propriety of summary judgment].) It would not
be consistent with the constitutional mandate that trial by jury
“is an inviolate right and shall be secured to all” (Cal. Const.,
art. I, § 16) for us to pick out categories of civil actions that,
because they sometimes raise complicated factual issues or
implicate common business decisions, we regard as more
suitable for trial to the court.
      In the end, however, while it seems to me the majority
comes up short in its effort to show that FAL claims implicate
inherently equitable judgment uniquely suited to a court, I
agree that the present action was nonetheless predominantly
equitable in character.
       First, as the majority explains, even if liability for civil
penalties is deemed a legal question, the amount of such
penalties under the UCL and FAL is decided by the court on an
equitable basis, along with questions of injunctive relief and
appropriate restitution. (Maj. opn., ante, at p. 58 [“[T]he UCL
and FAL statutes specify that in assessing the amount of the
civil penalty to be imposed under these statutes, the court is
afforded broad discretion to consider a nonexclusive list of
factors that include the relative seriousness of the defendant’s


                                12
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


conduct and the potential deterrent effect of such penalties, the
type of qualitative evaluation and weighing of a variety of
factors that is typically undertaken by a court and not a jury.
(Bus. & Prof. Code, §§ 17206, 17536.)”].) The parties do not
dispute that even if the request for civil penalties triggered a
jury trial right, the right would extend only to the trial on
liability; the ultimate amount of any penalties awarded would
be decided by the court.          Such an arrangement is not
unprecedented (see Tull, supra, 481 U.S. at pp. 425–427), but
this allocation of remedial authority does diminish the practical
importance of the jury’s factfinding role and, in my view, strains
the idea that the gist of the action is predominantly legal.
      Second, and equally important, the causes of action under
the UCL and the FAL are inherently intertwined. This is
because “unfair” competition under the UCL expressly includes
“any act prohibited by” the FAL (Bus. & Prof. Code, § 17200),
meaning that every violation of the FAL is therefore also a
violation of the UCL. When, as here, allegedly deceptive conduct
is pleaded as a violation of both statutes, the same liability
questions that a jury would decide for purposes of the FAL
would be decided by the court for purposes of the UCL. And
while it might be theoretically possible to separate out the UCL
claims that depend on equitable principles from those that do
not, in practice the effort to keep the claims separate would be
bound to collapse, since each UCL cause of action in a complaint
is not necessarily limited to a single type of conduct or a single
legal theory of liability.
      In these circumstances, trying liability under the FAL to
the jury, while the rest of the action was decided by the court,
would create procedural complications without significant


                                13
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                        SUPERIOR COURT
                       Kruger, J., concurring


benefit to the defendant demanding jury trial. Because the FAL
and the UCL are intertwined in this manner, a trial court that
considered the defendant’s advertising deceptive could impose
liability under the UCL before even putting the FAL liability
question to the jury. (See maj. opn., ante, at p. 43 [trial court
has discretion as to order of trying severable legal and equitable
issue].) The court could then exercise its equitable judgment to
impose both injunctive relief and substantial civil penalties for
the UCL violation, regardless of the jury’s view as to FAL
liability. In other words, although every found violation of the
FAL triggers civil penalties under the UCL, the inverse is not
true; a jury’s finding of no FAL liability would not preclude a
judge from awarding substantial civil penalties under the UCL.
Because of the way these intertwined causes of action relate
when the same conduct is at issue, the jury’s verdict does not
ultimately determine whether civil penalties are imposed.
      Plaintiffs here seek a traditionally legal remedy, civil
penalties, along with the equitable remedies of injunction and
restitution. They also plead causes of action under the FAL, for
which liability appears to rest on factual determinations rather
than equitable judgment, as well as the UCL. But in the end,
the equitable facets of this action predominate over the legal
ones. The amount of any civil penalties would be determined by
the trial court on the basis of equitable principles, allowing the
court to all but nullify any jury finding of an FAL violation.
What is more, the court could effectively override any jury
decision against FAL liability by imposing liability for the same
conduct under the UCL before the FAL issue is ever tried, then
awarding plaintiffs injunctive relief and penalties for that



                                14
        NATIONWIDE BIWEEKLY ADMINISTRATION, INC. v.
                       SUPERIOR COURT
                      Kruger, J., concurring


violation. For these reasons, I agree with the majority that the
action is predominantly equitable in nature.


                                               KRUGER, J.
We Concur:
LIU, J.
CUÉLLAR, J.




                               15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Nationwide Biweekly Administration, Inc. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 24 Cal.App.5th 438
Rehearing Granted

__________________________________________________________________________________

Opinion No. S250047
Date Filed: April 30, 2020
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: George C. Hernandez, Jr.

__________________________________________________________________________________

Counsel:

Law Office of Alan S. Yockelson, Alan S. Yockelson; Ponist Law Group, Sean E. Poinst; Jones Day,
Nathaniel Garrett and James R. Saywell for Petitioners.

No appearance for Respondent.

Jeannine M. Pacioni and Dean D. Flippo, District Attorneys (Monterey), Cynthia J. Zimmer and Lisa
Green, District Attorneys (Kern), Nancy E. O’Malley, District Attorney (Alameda), Lori Frugoli, Edward
Berberian and Jeremy M. Fonseca, District Attorneys (Marin), Matthew L. Beltramo, Assistant District
Attorney (Alameda), John F. Hubanks and Christopher Judge, Deputy District Attorneys (Monterey), John
Thomas Mitchell, Deputy District Attorney (Kern), Andres H. Perez, Deputy District Attorney (Marin);
Mary Ann Smith, Sean Rooney, Robert R. Lux and William Horsey for Real Party in Interest.

Xavier Becerra, Attorney General, Nicklas A. Akers, Assistant Attorney General, Michele Van Gelderen,
Sheldon H. Jaffe and Vivian F. Wang, Deputy Attorneys General, for the Attorney General as Amicus
Curiae on behalf of Real Party in Interest.

Mark Zahner; Matthew T. Cheever, Deputy District Attorney (Sonoma) and Patrick Collins, Deputy
District Attorney (Napa) for California District Attorneys Association as Amicus Curiae on behalf of Real
Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

James R. Saywell
Jones Day
901 Lakeside Avenue East
Cleveland, OH 44144
(216) 586-3939

Matthew Beltramo
Assistant District Attorney
7677 Oakport St., Suite 650
Oakland, CA 94621
(510) 383-8600
