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Wednesday, Oct 4, 2023

Civil Justice Ass’n Seeks Change to Competition Law

Smoke-Free Bar Program Honors Deputy City Attorney

Calling it a danger to small or start-up businesses, notably when put in the hands of trial lawyers, a statewide group is pushing to change California’s Unfair Competition Law.

Representatives of the Civil Justice Association of California were in San Diego early this month to promote a bill that would change Business and Professions Code Section 17200.

The law allows both district attorneys and private attorneys to sue in response to unfair, unlawful or misleading business practices, said Barbara Wheeler, the association’s vice president for legislation.

During the past five or more years, Wheeler said, association members have noticed the law being “abused” by private lawyers.

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Speakers brought together by the Sacramento-based association said a private individual does not even have to be hurt by a company’s action to file suit. On top of that, they said, a company can be sued multiple times, by different people, for the same perceived offense.

While big companies could weather such suits, small companies, developing companies and companies dependent on investor capital are vulnerable, said Gene Livingston, a Sacramento attorney.

The association’s proposed remedy is Assembly Bill 2186, put forth by Robert Pacheco, R-City of Industry. The bill states a plaintiff would have to have suffered injury or been misled to bring a suit, according to a summary prepared by the association.

In addition, the bill says if such a suit is brought on behalf of the general public, it would have to be brought as a class-action lawsuit.

The bill would not affect how district attorneys, county attorneys, city attorneys or attorneys general pursue such a suit, said association President John H. Sullivan.

One local attorney skeptical of the Civil Justice Association’s proposal is Chris Hulburt, a partner with San Diego-based Thorsnes Bartolotta & McGuire. He thinks Section 17200 is fine as-is.

People often use Section 17200 in cases involving hundreds of dollars or small amounts in the thousands of dollars, he said. While anyone could sue a company for an unfair practice , whether they were affected by the practice or not , there is the practical matter of providing evidence of the unfair practice occurring, he said.

In general, he said, businesses would prefer that government , which is underfunded, understaffed and subject to political whims , be the only regulator. Section 17200, by contrast, “actually puts the power in the hands of the people,” he said.

Businesses operating lawfully “have absolutely nothing to fear” under Section 17200, Hulbert said, adding that it works to keep competition fair in a particular industry.

This is the fourth year the Civil Justice Association has sponsored legislation to change the law, association members said, adding their efforts have been blocked by trial lawyer organizations.

The Civil Justice Association was formerly known as the Association for California Tort Reform.

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Tavern Tobacco: The San Diego chapter of BREATH, the California Smoke-Free Bar Program, recently presented a framed certificate to San Diego Deputy City Attorney Joan McNamara in appreciation of her work enforcing smoke-free bar laws.

In February, McNamara issued complaints against “four absentee bar owners” who allegedly violated Labor Code Section 6404.5, the smoke-free workplace law, and who allegedly have “a history of non-compliance.”

It was the first time it happened in the city of San Diego, said BREATH’s Diane Ake, and now other area cities are following her lead.

The group also called McNamara the first prosecutor in the state to use the health and safety code to prosecute bar owners who let their bartenders smoke while working. BREATH is funded by a grant from the state Department of Health Services.

New Partners: San Diego-based Procopio, Cory, Hargreaves & Savitch LLP has announced eight attorneys have become partners with the firm: Anthony J. Dain, Kam W. Li, John C. O’Neill, Lorne R. Polger, Robert F. Stansell, Allison D. Cato, S. Andrew Pharies and Patrick W. Martin. It also was announced John D. Tishler will become of counsel to the firm.

New Associates: San Diego-based Klinedinst, Fliehman & McKillop is adding two new associates: Natalie P. Vance and Christine Landry.

Graves’ law column appears weekly. Contact him with story ideas at (858) 277-6359, or by E-mail at (bgraves@sdbj.com).


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