People v. K-Mart Corp. (1989)

THE PEOPLE, Plaintiff and Appellant, v. K-MART CORPORATION, Defendant and Respondent

(Opinion by Randall, P. J., with McGillivray and Oberholzer, JJ., concurring.)

COUNSEL

Edward R. Jagels, District Attorney, and Jeffrey A. Green, Deputy District Attorney, for Plaintiff and Appellant.

Lillick, McHose & Charles, George K. Rosenstock and Sylvia Lopez Rodriguez for Defendant and Respondent. [210 Cal. App. 3d Supp. 3]

OPINION

RANDALL, P. J.

Respondent was charged in six separate complaints with numerous violations of the provisions of Business and Professions Code section 12024.2, a misdemeanor. Ultimately, per stipulation, a consolidated amended complaint was filed charging 15 separate counts of violation of the provisions of the aforementioned code section. Respondent demurred to the charges, and the demurrer was ultimately sustained with appellant being afforded 10 days to amend the complaint. Thereafter, appellant's counsel appeared before the court and indicated that appellant would not amend the complaint but rather would appeal the court's decision upon the entry of a judgment of dismissal. Judgment of dismissal was entered on February 18, 1988, and thereafter a timely notice of appeal was filed.

The Charges

Since we deal in this case with an appeal after a judgment entered subsequent to the granting of a demurrer to the complaint, we need not discuss the facts of the case, but we do need to take up the language of the charging allegations with regard to each of the 15 counts in question.

Each of the counts in the complaint contained identical language with the exception that the item allegedly sold was different on each occasion, as was the date of the occurrence. The language was as follows: "That said K-Mart Corporation, on or about ____________________, at and in said County of Kern, State of California, did wilfully and unlawfully compute, at the time of sale a commodity, to wit: ____________________, a value which was not a true extension of a price per unit which at that time was advertised, posted or quoted, in violation of Section 12024.2 of the Business and Professions Code, a misdemeanor."

The date upon which each of the alleged occurrences took place is not material to the issue before the court, but the alleged commodity is. Those items were: first count: Air Wick Carpet Fresh; second count: Pledge; third count: transmission fluid; fourth count: car mats; fifth count: soap; sixth count: oven cleaner; seventh count: wash towels; eighth count: Korbel Extra-Dry Champagne; ninth count: Gallo Chablis Blanc; tenth count: Gallo Sherry; eleventh count: fabric spray protector; twelfth count: Oxy-10; thirteenth count: Easy-On Starch; fourteenth count: K2R Spot Remover; fifteenth count: Hanes Thermal Underwear.

As to some of the aforementioned counts, the appellant demurred on the ground that: "... the complaint does not substantially conform to the [210 Cal. App. 3d Supp. 4] provisions of Section[s] 950 and 952 of the Penal Code of the State of California because the place of violation is stated to be County of Kern, State of California, whereas K-Mart Corporation maintains and operates many retail outlets at various locations in the County of Kern, State of California."

Any confusion with regard to the place at which any alleged violation had occurred had been cured, however, by the time the parties appeared to argue the demurrer, and respondent's counsel conceded that that question was mute.

The second ground of demurrer, which was alleged as to each of the 15 counts of the complaint, was stated in the following terms: "The facts stated in Count No. ____________________ of the complaint do not constitute a public offense in that Section 12024.2 of the Business and Professions Code prohibits the 'computation' of a 'price per unit' of weight or unit of measure which differs from the price per unit of weight or measure which is advertised, posted or quoted, and such statute is limited to fungible commodities sold by weight or measure unit; ____________________ is a ____________________ which is not sold by computing its price per weight or measure unit at the time of sale."

The trial court agreed with the analysis of respondent, and in its written ruling of February 10, 1988, held: "Based on a reading of the legislative intent of then Senate Bill 551, fn. 1 this court finds that Section 12024.2 is aimed at violations where a commodity's price is determined by multiplying or computing its weight times a price per unit. It is aimed at merchants who tamper with their scales or who 'put their thumb on the scale.'"

Issue

Did the Trial Court Correctly Sustain Respondent's Demurrer?

[1] At the outset, it is important for this court to emphasize that: "A demurrer is a pleading ... which raises an issue of law as to the sufficiency of the accusatory pleading. (Citations.) It lies only for defects appearing on the face of the accusatory pleading. (Citations.)" (Italics in original.) (Witkin, Cal. Criminal Procedure (1963) § 236, p. 220.) We make this point because both appellant and respondent appear at one or more points in their [210 Cal. App. 3d Supp. 5] briefs to have forgotten the limited nature of a demurrer and the consequently limited review to be afforded on appeal from a judgment subsequent to the sustaining of a demurrer.

Each of the 15 counts of the consolidated complaint plead a violation of Business and Professions Code section 12024.2, in the language of the statute. fn. 2

Since we are dealing with an appeal following the sustaining of a demurrer, we need not concern ourselves with the manner in which the computation in question was made, or if, indeed, any computation was made at all. That issue remains for another day. [2a] We need only deal with the issue successfully argued by respondent below that "... the prepackaged general nonfungible merchandise which formed the subject matter of the misdemeanor complaints were not fungible commodities sold by computing the price per unit by unit of weight at the time of sale."

Business and Professions Code section 12024.2 is found in chapter one of division five of the Business and Professions Code of the State of California, which division bears the title "Weights and Measures." Chapter one commences by defining certain terms. However, the term "commodity" is not one of the terms specially defined in those code sections. Consequently, we should appropriately look to the plain dictionary meaning of the word "commodity" to ascertain whether that word may be used to refer to the wide variety of items which are the subject matter of the 15 counts in question. [3] The New Webster's Dictionary of the English Language (1981) defines "commodity" as "something that is of use or is valuable; an article of trade or commerce." As so defined, the word commodity certainly encompasses all of the 15 items of merchandise named in the complaint.

[2b] Counsel for respondent has suggested that it is only fungible commodities which are meant to be covered by the Business and Professions Code section before us. The word fungible is not used in section 12024.2, nor defined in the introductory sections of chapter one of the code. [4] The New Webster's Dictionary of the English Language, supra, defines "fungible" as "Law, of such a nature that one item or part may be replaced by another of the same type; interchangeable; permitting substitution." [210 Cal. App. 3d Supp. 6] [2c] Certainly items such as car mats, a specific brand of champagne, or a specific brand of soap would appear to this court to be fungible as that word is commonly defined. One would be hard pressed to identify one bottle of Korbel Extra Dry Champagne from another of the same label.

Having concluded that the language of the code section in question legitimately embraces the types of items allegedly sold in violation of the provisions of that section, we must next look to see whether the legislative intent behind the adoption of the questioned statute is violated by its application to the commodities enumerated. [5] As (then) Justice Traynor has so turgidly commented: "Speculation cuts brush with the pertinent question: what purpose did the Legislature seek to express as it strung those words into a statute? The court turns first to the words themselves for the answer. It may also properly rely on extrinsic aids, the history of the statute, the legislative debates, committee reports, statements to the voters on initiative and referendum measures. Primarily, however, the words in arrangement that superimposes the purpose of the Legislature upon their dictionary meaning, stand in immobilized sentry, reminders that whether their arrangement was wisdom or folly, it was wittingly undertaken and not to be disregarded." (People v. Knowles (1950) 35 Cal. 2d 175, 182 [217 P.2d 1].)

We have been assisted by the efforts of respondent who filed with the trial court the legislative history of Business and Professions Code section 12024.2. At page 14 of the augmented record there is an analysis with comments on Senate Bill No. 551 prepared for a hearing conducted July 1, 1971. The analysis explains that the bill would make four changes to the law administered by the Bureau of Weights & Measures. We concern ourselves here with the first of those changes, as set forth in the analysis: "These amendments are sponsored by the Bureau of Weights & Measures to aid them in overcoming problems which have cropped up recently. On the first provision, it is apparently not presently unlawful to overcharge by not multiplying unit prices correctly (e.g., charging $1.50 for six cans listed at $.20 each) or more particularly by rigging a calculator to overcharge."

At page 65 of the augmented record there is a report to the Assembly Committee on Labor, Employment, and Consumer Affairs for a hearing conducted August 17, 1977, on Senate Bill No. 1243, which bill amended the section in question with regard to penalty. In discussing the background of the amendment the author of the report used the following language, part of which has been quoted by respondent's counsel in its brief: "Under current law, it is a misdemeanor for a salesclerk to ring up a sum for an item or items which is not a true product or quotient of the posted, advertised or [210 Cal. App. 3d Supp. 7] quoted item price. Thus, if a clerk charges $.68 for two pounds of tomatoes for $.29 per pound, he or she is guilty of a misdemeanor. Similarly, if a clerk charges $.49 for an item on sale '2 for $.90' he or she is guilty. There is no provision for error." (Italics added.)

[2d] It is obvious that the intent of the Legislature in initially adopting Business and Professions Code section 12024.2, and later in amending that code, would not be violated by charging respondent in the manner in which respondent was charged in each of the 15 counts in the instant case.

Respondent attempts to argue that the Court of Appeal in Pitney-Bowes, Inc. v. State of California (1980) 108 Cal. App. 3d 307 [166 Cal. Rptr. 489] has interpreted division five of the Business and Professions Code in such a manner that its provisions can only apply to circumstances where weighing devices are being used to determine the cost of goods sold. A review of the case, however, quickly demonstrates that the court in Pitney-Bowes was attempting to determine the scope of section 12210 of the Business and Professions Code which deals with inspections and tests of weighing and measuring devices; and section 12500 of the code, which defines the terms used in chapter five of division five, which chapter bears the heading "Weighing and Measuring Devices." The court defined the issues as follows: "The umbrella issue on appeal is whether or not the trial court erred in concluding that plaintiff Pitney-Bowes' scales and repairmen are not subject to the regulatory and licensing scheme contained in 12001 et seq.

"However, the parties agree that resolution of the above issues turns on dual core issues, namely, (1) whether or not plaintiff's scales are used for 'commercial purposes' within the meaning of the statute, and (2) whether or not the word 'commodities' employed in the statute was intended to include 'services'." (108 Cal.App.3d at p. 312.) The Pitney-Bowes case is not of assistance in determining the instant matter.

Conclusion

Since the 15 counts of the amended consolidated complaint on their face charge a publice offense, the demurrer should have been overruled.

The judgment of the West Kern County Municipal Court is reversed and the case remanded to that court with instructions to reinstate the case and [210 Cal. App. 3d Supp. 8] enter an order overruling the demurrer of respondent to the consolidated amended complaint.

McGillivray, J., and Oberholzer, J., concurred.

FN 1. Business and Professions Code section 12024.2 in its original form was introduced to the Legislature as Senate Bill No. 551, 1971 Regular Session.

FN 2. Business and Professions Code section 12024.2 provides in pertinent part: "It is unlawful for any person to compute, at the time of sale of a commodity, a value which is not a true extension of a price per unit which at that time is advertised, posted or quoted. ..."

A violation of the provisions of section 12024.2 is a misdemeanor under certain circumstances and an infraction under other circumstances. We need not, for purposes of this appeal, make the distinction.