Nationwide Biweekly Administration, Inc. v. Superior Court

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

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

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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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.)

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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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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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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

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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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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

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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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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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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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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

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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

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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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$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.)

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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 U

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