2009 California Business and Professions Code - Section 16750-16761 :: Article 3. Enforcement

16750.  (a) Any person who is injured in his or her business or
property by reason of anything forbidden or declared unlawful by this
chapter, may sue therefor in any court having jurisdiction in the
county where the defendant resides or is found, or any agent resides
or is found, or where service may be obtained, without respect to the
amount in controversy, and to recover three times the damages
sustained by him or her, interest on his or her actual damages
pursuant to Section 16761, and preliminary or permanent injunctive
relief when and under the same conditions and principles as
injunctive relief is granted by courts generally under the laws of
this state and the rules governing these proceedings, and shall be
awarded a reasonable attorneys' fee together with the costs of the
suit.
   This action may be brought by any person who is injured in his or
her business or property by reason of anything forbidden or declared
unlawful by this chapter, regardless of whether such injured person
dealt directly or indirectly with the defendant.
   The amendments to this section adopted at the 1959 Regular Session
of the Legislature do not apply to any action commenced prior to
September 18, 1959.
   (b) The state and any of its political subdivisions and public
agencies shall be deemed a person within the meaning of this section.
   (c) The Attorney General may bring an action on behalf of the
state or of any of its political subdivisions or public agencies to
recover the damages provided for by this section, or by any
comparable provision of federal law, provided that the Attorney
General shall notify in writing any political subdivision or public
agency of his or her intention to bring any such action on its
behalf, and at any time within 30 days thereafter, such political
subdivision or public agency may, by formal resolution of its
governing body or as otherwise specifically provided by applicable
law, withdraw the authority of the Attorney General to bring the
intended action. In any action brought pursuant to this section on
behalf of any political subdivision or public agency of the state,
the state shall retain for deposit in the Attorney General antitrust
account within the General Fund, out of the proceeds, if any,
resulting from such action, an amount equal to the expense incurred
by the Attorney General in the investigation and prosecution of such
action or an amount equal to 10 percent of the total recovery
obtained by the Attorney General, whichever is greater.
   (d) In any antitrust action brought on behalf of the state in
which the Attorney General is the class representative of political
subdivisions, public agencies, or citizens of the state who have been
affected by the matters set forth in the complaint, the state shall
retain for deposit in the Attorney General antitrust account within
the General Fund, the proceeds, if any, of any attorneys' fees
awarded by the court in which such case is located, to the Attorney
General, resulting from such class representation.
   (e) In any action brought by the Attorney General pursuant to
either state or federal antitrust laws for the recovery of damages by
the state or any of its political subdivisions or public agencies,
in addition to his or her other powers and authority, the Attorney
General may enter into contracts relating to the investigation and
the prosecution of such action with any other party plaintiff who has
brought a similar action for the recovery of damages and with whom
the Attorney General finds it advantageous to act jointly, or to
share common expenses or to cooperate in any manner relative to such
action. In any such action, notwithstanding the provisions of Section
12520 of the Government Code, the Attorney General may undertake,
among other things, either to render legal services as special
counsel to, or to obtain the legal services of special counsel from
any department or agency of the United States, of this state or any
other state or any department or agency thereof, any county, city,
public corporation or public district of this state or of any other
state, that has brought or intends to bring a similar action for the
recovery of damages, or their duly authorized legal representatives
in such action. The Attorney General may also enter into any
agreement authorized by Chapter 5 (commencing with Section 6500) of
Division 7 of Title 1 of the Government Code with any governmental
entity enumerated in this subdivision, notwithstanding any provision
to the contrary contained in Section 6500 of the Government Code.
Every contract or agreement entered into pursuant to this subdivision
(e) shall be approved by the Department of General Services.
   (f) The amounts paid into the Attorney General antitrust account
within the General Fund pursuant to subdivisions (c), (d) and (e)
arising from the same action or companion actions shall not
cumulatively exceed the greater of ten percent (10%) of the total
recovery in all actions resulting from the Attorney General's
representation or an amount equal to the expenses incurred by the
Attorney General in the investigation and prosecution of such
actions. Any excess shall be paid into the General Fund.
   (g) The district attorney of any county may prosecute any action
on behalf of such county or any city or public agency or political
subdivision located wholly within such county which the Attorney
General is authorized to bring pursuant to subdivision (c) of this
section, whenever it appears that the activities giving rise to such
prosecution or the effects of such activities occur primarily within
such county. The district attorney shall file with the Attorney
General at least 30 days prior to the filing of any such action a
copy of the proposed complaint together with a confidential
memorandum and report explaining the facts giving rise to the
proposed prosecution and supporting the filing of the new complaint.
Prior to entering into any stipulated or consent judgment or other
settlement of any such action, the district attorney shall file with
the Attorney General at least 30 days prior to the execution thereof
a copy of the proposed settlement together with a memorandum of
explanation of the settlement. The Attorney General may waive any
time requirements provided in this subdivision. In any investigation
or action undertaken or brought by a district attorney pursuant to
this section, if the Attorney General deems it necessary and in the
public interest, the Attorney General may take full charge of any
such investigation or prosecution, and the Attorney General shall
have all the powers granted by Section 12550 of the Government Code
in respect thereto.
   (h) In any action prosecuted pursuant to the provisions of
subdivision (g) a district attorney may exercise all of the powers
conferred on the Attorney General by subdivision (e) provided that
every contract or agreement entered into pursuant to this subdivision
by a district attorney shall first be approved by the governing
authority of the agency in his or her county.
   (i) In any action brought pursuant to subdivision (g) a district
attorney may represent any political subdivision located within his
or her county directly, in which case he or she shall notify in
writing such political subdivision of his or her intention to bring
any such action on its behalf, and at any time within 30 days
thereafter, that political subdivision may, by formal resolution of
its governing body or as otherwise specifically provided by
applicable law, withdraw the authority of the district attorney to
bring the intended action. In any action in which a district attorney
directly represents any political subdivision located within his
county, the district attorney shall retain out of the proceeds, if
any, resulting from such action, an amount equal to the expense
incurred by the district attorney in the investigation and
prosecution of such action or an amount equal to 10 percent of the
total recovery obtained by the district attorney, whichever is
greater. In any action brought pursuant to subdivision (g) in which
the county, through the district attorney, is the class
representative of political subdivisions located within such county,
the district attorney shall retain the proceeds, if any, of any
attorneys' fees awarded by the court in which such action is pending
to the district attorney, resulting from such class representation.
All proceeds retained by a district attorney pursuant to this
subdivision shall be deposited in the appropriate account as provided
by law.
   (j) Nothing in this section shall be construed to authorize any
district attorney to exercise the powers conferred upon the Attorney
General by an act of Congress of September 30, 1976, (P.L. 94-905; 90
Stat. 1983) also known as the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, except at the direction of the Attorney
General.

16750.1.  Any civil action to enforce any cause of action for a
violation of this chapter shall be commenced within four years after
the cause of action accrued. No cause of action barred under existing
law on the effective date of the amendment of this section at the
1977-78 Regular Session of the Legislature shall be revived by such
amendment.

16750.2.  Any person, other than the Attorney General or a district
attorney, who commences, by writ or appeal, any proceeding in the
Supreme Court of California or a state court of appeal in which a
violation of this chapter is alleged or any application of this
chapter is in issue shall serve notice thereof upon the Attorney
General within three days after the commencement of the proceeding,
provided that such time may be extended by the Chief Justice or
presiding justice for good cause shown. No relief, temporary or
permanent, shall be granted until proof of service of this notice is
filed with the court.

16751.  Whenever it appears to the court before which any
proceedings under this chapter are pending that the ends of justice
require that other parties shall be brought before the court, the
court may cause them to be made parties defendant and summoned,
whether or not they reside in the county where such action is
pending.

16752.  Upon a violation of this chapter by any corporation or
association the Attorney General or the district attorney of the
proper county may institute proper proceedings in a court of
competent jurisdiction for the forfeiture of charter rights,
franchises or privileges and powers exercised by such corporation or
association, and for the dissolution of the corporation or
association.

16753.  Every foreign corporation or association, exercising any of
the powers, franchises or functions of a corporation in this state,
which violates this chapter, is subject to revocation of those
powers, franchises or functions and upon such revocation is
prohibited from doing any business in this state. The Attorney
General, or a district attorney of a county where the offense or any
part thereof is committed, may enforce this provision by bringing
proper proceedings by injunction or otherwise. Upon receipt of a
certified copy of the judgment and decree of any court of competent
jurisdiction finding any foreign corporation or association guilty of
violating this chapter and ordering a revocation of its powers,
franchises or functions of a corporation in this state, the Secretary
of State shall revoke the license of any such corporation or
association heretofore authorized to do business in this state.

16754.  The Attorney General, or the district attorney of any
county, subject to the notice requirements of subdivision (g) of
Section 16750, shall initiate civil actions or criminal proceedings
for violation of this chapter. Civil actions and criminal proceedings
for violation of this chapter initiated by the Attorney General or
district attorney may be brought in the superior court in and for any
county where the offense or any part thereof is committed or where
any of the offenders reside or where any corporate defendant does
business. In any civil action or criminal proceeding brought by a
district attorney pursuant to this section, the Attorney General
shall have all of the powers set forth in Section 12550 of the
Government Code.

16754.5.  In any civil action brought by the Attorney General or a
district attorney under this chapter, the court may, in addition to
granting such prohibitory injunctions and other restraints as it may
deem expedient to deter the defendant from, and insure against, his
committing a future violation of this chapter, grant such mandatory
injunctions as may be reasonably necessary to restore and preserve
fair competition in the trade or commerce affected by the violation.

16755.  (a) Any violation of this chapter is a conspiracy against
trade, and any person who engages in any such conspiracy or takes
part therein, or aids or advises in its commission, or who as
principal, manager, director, agent, servant or employee, or in any
other capacity, knowingly carries out any of the stipulations,
purposes, prices, rates, or furnishes any information to assist in
carrying out such purposes, or orders thereunder or in pursuance
thereof, is punishable, as follows:
   (1) If the violator is a corporation, by a fine of not more than
one million dollars ($1,000,000) or the applicable amount under
paragraph (3), whichever is greater.
   (2) If the violator is an individual, by imprisonment in a state
prison for one, two, or three years, by imprisonment for not more
than one year in a county jail, by a fine of not more than the
greater of two hundred fifty thousand dollars ($250,000), a fine of
the applicable amount under paragraph (3), or by both a fine and
imprisonment.
   (3) If any person derives pecuniary gain from a violation of this
chapter, or the violation results in pecuniary loss to a person other
than the violator, the violator may be fined not more than an amount
equal to the amount of the gross gain multiplied by two or an amount
equal to the amount of the gross loss multiplied by two, whichever
is applicable.
   (b) Any action pursuant to this section may be commenced at any
time within four years after the commission of the last act
comprising a part of any violation. No cause of action barred under
existing law on the effective date of the amendment of this section
at the 1977-78 Regular Session of the Legislature shall be revived by
such amendment.
   (c) Subject to Section 13521 of the Penal Code, all moneys
received by any court in payment of any fine or civil penalty imposed
pursuant to this section shall, as soon as practicable after receipt
thereof, be deposited with the county treasurer of the county in
which the court is situated. Amounts so deposited shall be paid as
soon as practicable as follows: 100 percent to the Treasurer by
warrant of the county auditor drawn upon the requisition of the clerk
or judge of said court to be deposited in the State Treasury on
order of the Controller if the moneys received resulted from an
action initiated and prosecuted by the Attorney General. If the
action was initiated and prosecuted by a district attorney then 100
percent shall be paid as soon as practicable to the treasurer of the
county in which the prosecution is conducted. If the action was
initiated and prosecuted jointly by the Attorney General and a
district attorney or jointly by more than one district attorney, such
amounts shall be paid to the State Treasurer and to the treasurer(s)
of the county or counties participating in the prosecution in a
proportion agreed upon by the agencies jointly prosecuting such case
and as approved by the court.

16756.  In any indictment, information or complaint for any offense
named in this chapter, it is sufficient to state the purpose or
effects of the trust or combination, and that the accused is a member
of, acted with, or in pursuance of it, or aided or assisted in
carrying out its purposes, without giving its name or description, or
how, when and where it was created.

16757.  (a) In prosecutions under this chapter, it is sufficient to
prove that a trust or combination exists, and that the defendant
belonged to it, or acted for or in connection with it, without
proving all the members belonging to it, or proving or producing any
article of agreement, or any written instrument on which it may have
been based, or that it was evidenced by any written instrument at
all.
   (b) The character of the trust or combination alleged may be
established by proof of its general reputation as such.

16758.  In any action or proceeding brought by the Attorney General
or any district attorney for the violation of this chapter no person
shall be excused from attending, testifying or producing books,
papers, or documents in obedience to subpena or under order of court
on the ground that the testimony or evidence required of him may tend
to incriminate him or subject him to any penalty.
   No individual shall be prosecuted or subjected to any penalty for
or on account of any transaction, matter or thing concerning which he
may so testify or produce evidence in any action or proceeding
brought by the Attorney General or a district attorney under this
chapter.

16759.  All those powers granted to the Attorney General as a head
of a department under Article 2 (commencing with Section 11180) of
Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code
shall be granted to the district attorney of any county when that
district attorney reasonably believes that there may have been a
violation of Article 2 (commencing with Section 16720) or Article 3
(commencing with Section 16750) of this chapter, or a violation of
Chapter 4 (commencing with Section 17000) of this part, or a
violation of Chapter 5 (commencing with Section 17200) of this part,
and shall be subject to the provisions of Chapter 20 (commencing with
Section 7460) of Division 7 of Title 1 of the Government Code. Any
investigations pursuant to these powers shall be conducted in
accordance with the procedures set forth in Article 2 (commencing
with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2
of the Government Code, including all principles relating to immunity
from self-incrimination applicable thereto. However, nothing in
Section 16758 shall be construed as providing automatic immunity with
respect to the subject of a subpoena issued in connection with that
investigation. Court orders sought pursuant to this section shall be
sought in the superior court of the county where the district
attorney seeking the order holds office.

16760.  (a) (1) The Attorney General may bring a civil action in the
name of the people of the State of California, as parens patriae on
behalf of natural persons residing in the state, in the superior
court of any county which has jurisdiction of a defendant, to secure
monetary relief as provided in this section for injury sustained by
those natural persons to their property by reason of any violation of
this chapter. The court shall exclude from the amount of monetary
relief awarded in the action any amount of monetary relief (A) which
duplicates amounts which have been awarded for the same injury, or
(B) which is properly allocable to (i) natural persons who have
excluded their claims pursuant to paragraph (2) of subdivision (b),
and (ii) any business entity.
   (2) The court shall award the state as monetary relief three times
the total damage sustained as described in paragraph (1), the
interest on the total damages pursuant to Section 16761, and the
costs of suit, including a reasonable attorney's fee.
   (3) The court may, in its discretion, award a reasonable attorney'
s fee to a prevailing defendant upon a finding that the Attorney
General or district attorney has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.
   (b) (1) In any action brought under this section, the Attorney
General shall, at any time, in any manner, and with any content as
the court may direct, cause notice thereof to be given by
publication. If the court finds that notice given solely by
publication would deny due process of law to any person or persons,
the court may direct further notice to the person or persons
according to the circumstances of the case.
   (2) Any person on whose behalf an action is brought under
paragraph (1) of subdivision (a) may elect to exclude from
adjudication the portion of the claim for monetary relief
attributable to him or her by filing notice of that election with the
court within the time as specified in the notice given pursuant to
paragraph (1).
   (3) The final judgment in an action under paragraph (1) of
subdivision (a) shall be res judicata as to any claim under this
section by any person on behalf of whom the action was brought and
who fails to give notice within the period specified in the notice
given pursuant to paragraph (1).
   (c) An action under paragraph (1) of subdivision (a) shall not be
dismissed or compromised without the approval of the court, and
notice of any proposed dismissal or compromise shall be given in any
manner as the court directs.
   (d) In any action under this chapter, where there has been a
determination that a defendant agreed to fix prices, damages may be
proved and assessed in the aggregate by statistical or sampling
methods, by the pro rata allocation of illegal overcharges or of
excess profits, or by any other reasonable system of estimating
aggregate damages as the court in its discretion may permit without
the necessity of separately proving the individual claim of, or
amount of damage to, persons on whose behalf the suit was brought.
   (e) Monetary relief recovered by the Attorney General under this
section shall be distributed as follows:
   (1) In any manner as the superior court having jurisdiction over
the action in its discretion may authorize to insure, to the extent
possible, that each person be afforded a reasonable opportunity to
secure his or her appropriate portion of the monetary relief. In
exercising its discretion, the court may employ cy pres or fluid
recovery mechanisms as a way of providing value to persons injured as
a result of a violation of this chapter.
   (2) The Attorney General shall retain that portion of the monetary
relief awarded by the court as costs of suit and attorney's fee for
deposit in the Attorney General Antitrust Account within the General
Fund.
   (3) To the extent that the monetary relief awarded by the court is
not exhausted by distribution under paragraphs (1) and (2), the
remaining funds shall be treated under the provisions of Article 3
(commencing with Section 1530) and Article 4 (commencing with Section
1540) of Chapter 7 of Title 10 of Part 3 of the Code of Civil
Procedure as if it were unclaimed property, as defined in Section
1300 of the Code of Civil Procedure.
   (f) The powers granted in this section are in addition to and not
in derogation of the powers granted to the Attorney General by common
law in respect to bringing actions parens patriae.
   (g) The district attorney of any county may prosecute any action
on behalf of the natural persons residing in the county which the
Attorney General is authorized to bring pursuant to subdivision (a),
whenever it appears that the activities giving rise to the
prosecution or the effects of the activities occur primarily within
that county. Prior to bringing the action, a district attorney shall
comply with the notice requirements provided in subdivision (g) of
Section 16750. In any action brought pursuant to this subdivision,
the provisions of subdivisions (a) to (e), inclusive, shall be
applicable, except that the portion of monetary relief awarded by the
court as attorney's fee and costs shall be retained by the district
attorney for deposit in the appropriate account as provided by law.

16761.  The court may award, pursuant to a motion by a person who
has recovered damages pursuant to Section 16750, or by the Attorney
General who has secured monetary relief pursuant to Section 16760,
interest on actual damages at the rate of 10 percent per annum for
the period beginning on the date of service of such person's or the
Attorney General's complaint setting forth a claim for violation of
this chapter and ending on the date of judgment, or for any shorter
period therein, if the court finds that the award of interest for
such period is just in the circumstances. In determining whether an
award of interest under this section for any period is just in the
circumstances, the court shall consider only the following:
   (a) Whether the person, the Attorney General, or the opposing
party, or the representative of any of those parties, made motions or
asserted claims or defenses so lacking in merit as to show that the
party or representative acted intentionally for delay, or otherwise
acted in bad faith.
   (b) Whether, in the course of the action involved, the person, the
Attorney General, or the opposing party, or the representative of
any of those parties, violated any applicable rule, statute, or court
order providing for sanctions for dilatory behavior or otherwise
providing for expeditious proceedings.
   (c) Whether the person, the Attorney General, or the opposing
party, or the representative of any of those parties, engaged in
conduct primarily for the purpose of delaying the litigation or
increasing the cost thereof.