# Rubin v. Green

> California Supreme Court · April 5, 1993 · 4 Cal. 4th 1187

URL: https://www.frixlaw.com/law-library/cases/9793278

## Case

- **Full name:** GERALD S. RUBIN, Plaintiff and Appellant, v. NORMA GREEN Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** April 5, 1993
- **Citations:** 4 Cal. 4th 1187; 17 Cal. Rptr. 2d 828; 93 Daily Journal DAR 4338; 847 P.2d 1044; 93 Cal. Daily Op. Serv. 2549; 1993 Cal. LEXIS 1363
- **Precedential status:** Published
- **Opinion:** Concurrence by Baxter
- **Judges:** Arabian, Baxter
- **Cited by:** 267 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793278

## How later opinions describe it (automated extraction)

- applying the litigation privilege to claims under California’s unfair competition law, Business & Professions Code §§ 17200 et seq. because “[i]f the policies underlying section 47(b) are sufficiently strong to support an absolute privilege [against common law tort claims]”, t…
- noting the “expansive reach’’ given to the litigation privilege in California courts
- noting that Silberg and other decisions emphasized the “importance of virtually unhindered access to the courts”
- finding the complaint and subsequent pleadings in the litigation were privileged
- acknowledging that communications with some relation to an anticipated lawsuit are within the privilege

## Opinion text

BAXTER, J.
I concur in the majority’s reasoning and result as to plaintiff’s claim for damages. I respectfully dissent, however, from the majority’s decision to the extent that it precludes plaintiff’s claim for injunctive relief. In an attempt to impose its view of good public policy, the majority judicially repeals a detailed and considered legislative remedy. The result is even more anomalous than the approach. A person who is entirely unaffected by illegal attorney solicitation can bring an action to enjoin the misconduct. A person, however, who is directly harmed by an attorney’s illegal solicitation has no direct judicial recourse. The result is even more troublesome on a broader level. In an era of increased budgetary and time constraints on this state’s judiciary, the majority precludes effective enforcement of the ban on unlawful attorney solicitation.
*1205 The majority acknowledges that attorney solicitation, as defined in Business and Professions Code section 6153, is unlawful. (Maj. opn., ante, at p. 1200.) Business and Professions Code section 17203, in turn, provides that, “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.” (Italics added.) We have explained that, “. . . ‘unfair competition’ is not restricted to deceptive or fraudulent conduct but extends to any unlawful business practice .... The Legislature apparently intended to permit courts to enjoin ongoing wrongful business conduct in whatever context such activity might occur . . . .” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 209-210 [ 197 Cal.Rptr. 783 , 673 P.2d 660 ], second italics added.) Furthermore, Business and Professions Code section 17204 makes clear that virtually any member of the public may seek injunctive relief from unlawful business practice.
These statutes point to one simple conclusion. Unlawful attorney solicitation may be enjoined. For the most part, the majority does not contend otherwise, acknowledging that almost any member of the public has standing to bring an action to enjoin such misconduct. The majority’s only exception is the person directly harmed by the illegal conduct, that is, the person against whom the litigation was unlawfully solicited. I shall explain why I cannot concur in this strange result.
1. The majority’s view of public policy
I think it important to meet the majority’s fundamental premise that sound public policy supports the majority’s choice to disregard the statutory provisions for injunctive relief. The majority’s view appears to be that this court may disregard a statute whenever doing so facilitates our personal policy preferences. This is not tenable. No matter how strongly this court might believe that good public policy should prevent injunctive relief, the Legislature has determined for good or bad that injunctive relief is available. “Our function is not to judge the wisdom of statutes.” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099 [ 282 Cal.Rptr. 841 , 811 P.2d. 1025 ]; Delaney v. Superior Court (1990) 50 Cal.3d 785, 804-805 [ 268 Cal.Rptr. 753 , 789 P.2d 934 ].) What a statute should do is beyond our authority to decide. (New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 463 [ 273 Cal.Rptr. 98 , 796 P.2d 811 ].) We have no valid basis on which to usurp the Legislature’s role. Indeed, by disregarding Business and Professions Code sections 17203 and 17204, the majority also necessarily disregards Code of Civil Procedure section 1858, which states: “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted . . . .”
*1206 Moreover, the majority contradicts its own public policy argument in favor of unfettered illegal solicitation and the resulting access to the courts. To make its result more palatable, the majority acknowledges that the “broad standing provision of Business and Professions Code section 17204” allows “multiple parties other than plaintiff’ to enjoin unlawful attorney solicitation. (Maj. opn., ante, at p. 1204.) The potential enforcers include everyone other than the party against whom the unlawful solicitation is directed: the Attorney General, district attorneys, certain city attorneys, city prosecutors, and most importantly, any member of the public who is not the soliciting attorney’s adversary in the underlying litigation. Put in plain language, the result is that every member of the public—except for one, the victim—can seek injunctive relief. By acknowledging a potentially unlimited class of plaintiff-enforcers, the majority seems to undercut its preferred policy of unfettered judicial access. 1
The majority’s reliance on nonparty enforcers is questionable in another respect. There is no evidence in the record that any of the public officials identified by the majority have ever intervened in a private dispute to enjoin unlawful attorney solicitation. Even more unrealistic is the notion that private citizens with no stake in a dispute will expend time and resources to seek injunctive relief that will not benefit them. The majority’s reliance on private enforcers is contradictory. Either, as noted above, it defeats unfettered access by allowing an unlimited class of enforcers or, alternatively, the reliance is unrealistic, thereby undercutting the majority’s view that unaffected citizens will solve the problem of unlawful attorney solicitation.
Perhaps most interesting is that the majority’s rule sows the seeds of its own demise. Under the majority’s rule, a person against whom an attorney unlawfully seeks litigation cannot seek injunctive relief. Any nonaffected member of the public, however, is allowed to seek such relief. Thus, all the solicitation victim need do to avoid the majority’s restriction of his ability to seek injunctive relief is to persuade a friend, relative, or colleague to bring an injunctive relief action as a member of the public—a procedure the majority explicitly approves. Indeed, there is no legal or ethical reason why the solicitation victim could not agree to fund such an action, e.g., by paying the citizen-plaintiff’s costs and legal fees. The majority serves little purpose by creating a rule under which a victim can do indirectly that which he cannot do directly.
*1207 Nor should we forget the egregious nature of the unlawful conduct the majority’s rule will allow to occur unabated. Business and Professions Code sections 6152 and 6153 make it unlawful and criminal for an attorney to use a “runner or capper ... to solicit any business” for the attorney in any public or private place. (Bus. & Prof. Code, § 6152.) Put simply, the Legislature chose in sections 6152 and 6153 to make unlawful and criminal the worst forms of attorney solicitation. The majority, however, precludes any effective enforcement of the legislative ban.
2. Statutory conflict
1 also depart from the majority’s approach to the “apparent conflict” it perceives between Civil Code section 47, subdivision (b) (hereafter, Civil Code section 47(b)) and the Business and Professions Code provisions for injunctive relief from unlawful business practices. Civil Code section 47’s privilege for communications in the course of a judicial proceeding was first enacted in 1872, more than a century ago. Business and Professions Code sections 6152 and 6153, the statutory proscriptions of attorney solicitation, were enacted more than 60 years later, in 1939. I find it difficult to believe the Legislature intended to prohibit—indeed, make criminal—that which was privileged.
Moreover, when, in 1977, the Legislature enacted Business and Professions Code sections 17203 and 17204, providing for injunctive relief from an unlawful business practice, it was clear that attorney solicitation was an unlawful practice under already-enacted Business and Professions Code section 6152. It is not reasonable to conclude that the Legislature would have provided for injunctive relief against an unlawful practice (attorney solicitation) if the Legislature believed such relief was prohibited by Civil Code section 47(b). The majority presumably believes the Legislature was unaware of a prohibition in Civil Code section 47(b) against injunctive relief and inadvertently created a conflict by providing for such relief under Business and Professions Code sections 17203 and 17204.1 am reluctant to attribute such ignorance to the Legislature. I am also nonplussed as to how the majority finds a conflict between the two statutes. When the Legislature enacted Business and Professions Code sections 17203 and 17204 allowing for injunctive relief, there was no decision by this court holding that solicitation is privileged under Civil Code section 47(b). Thus, when it enacted sections 17203 and 17205, the Legislature could not have created a conflict between those provisions and something that did not then exist—the privilege for unlawful attorney solicitation that we announce for the first *1208 time today. The conflict perceived by the majority is of its own making, not the Legislature’s. 2
Subsequent events also refute the majority’s view that injunctive relief is available only to those not harmed by the unlawful solicitation. In 1991, the Legislature amended Business and Professions Code section 6154 to provide that “Any contract for professional services secured by an attorney at law or law firm in this state through the services of a runner or capper is void. In any action against any attorney or law firm under the Unfair Practices Act . . . any judgment shall include an order divesting the attorney or law firm of any fees and other compensation received pursuant to any such void contract.” At a minimum, this amendment makes clear that the State Bar disciplinary system was not viewed by the Legislature as the exclusive means of enforcing the statutory ban on attorney solicitation. Moreover, the majority creates an anomaly in light of this divestiture provision. The victim of unlawful attorney solicitation is precluded from any relief—compensatory or injunctive. Any other citizen, however, can obtain not only injunctive relief, but also the additional monetary relief under Business and Professions Code section 6154. The litigation equivalent of a bounty hunter can obtain monetary relief without showing any harm. A demonstrably harmed litigant, however, is handed only a platitude as to the need for more litigation. Under the majority view, it seems as if everyone but the victim is protected or compensated.
3. Majority’s authorities
Nor am I persuaded by the authorities on which the majority relies. The obvious point should be made first. None of the decisions cited by the majority dealt with attorney solicitation and, more important, none of them *1209 established any rule under which the victim of an illegal business practice was denied relief while at the same time members of the general public were allowed relief.
In Ribas v. Clark (1985) 38 Cal.3d 355 [ 212 Cal.Rptr. 143 , 696 P.2d 637 , 49 A.L.R.4th 417 ], which the majority calls the “closest precedent in point,” the court noted that, in applying the judicial proceedings privilege of Civil Code section 47(b), the court would not distinguish between common law and statutory causes of action for damages for invasion of privacy. The court did not consider any issue as to injunctive relief. What is relevant, though, is that the court did allow the plaintiff to pursue an action for substantial statutory penalties. Ribas makes clear that the privilege under Civil Code section 47(b) does not necessarily preclude all remedies, especially those created by other statutes. If the plaintiff in Ribas was allowed to seek substantial monetary penalties, I see no reason why the present plaintiff should not be allowed to seek injunctive relief. After all, injunctive relief is less likely than monetary penalties to have a chilling effect on court access.
Equally inapposite and unpersuasive is the majority’s reliance on Court of Appeal cases applying our decision in Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 [ 250 Cal.Rptr. 116 , 758 P.2d 58 ] (MoradiShalal), in which we held that Insurance Code section 790.03, subdivision (h) did not provide a private cause of action for damages against insurers. The linchpin of our holding was that “[T]he Legislature has not manifested an intent to create such a private cause of action.” ( 46 Cal.3d, at p. 305 .) The Moradi-Shalal plaintiff did not seek injunctive relief, so there was no issue before this court as to whether such an action would have been proper under the Business and Professions Code or otherwise. To the extent, however, that we touched on the issue, we suggested that injunctive relief would have been appropriate. More specifically, in response to the argument that our decision would eliminate any meaningful redress for abuses by insurers, we explained that, “[T]he courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions . . . .” (Id., at p. 304, italics added.)
In the subsequent Court of Appeal cases noted by the majority, the plaintiffs sought to overcome the effect of Moradi-Shalal, supra, 46 Cal.3d 287 , by recasting their causes of action on grounds other than the Insurance Code. As the majority notes, the Courts of Appeal refused to allow the attempted circumvention. The majority, however, reads too much into those decisions. The first was Lee v. Travelers Companies (1988) 205 Cal.App.3d 691 [ 252 Cal.Rptr. 468 ], in which the court refused to allow the plaintiff to plead around Moradi-Shalal, supra, 46 Cal.3d 287 , by alleging common law *1210 causes of action for damages. There was no issue as to injunctive relief under the Business and Professions Code or otherwise. Similarly, in Industrial Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1093 Cal.App.3d 1093 [ 257 Cal.Rptr. 655 ], the court refused to allow the plaintiff to avoid Moradi-Shalal, supra, 46 Cal.3d 287 , by seeking to recover damages under Business and Professions Code section 17203. Again, there was no issue as to injunctive relief. The same was true in Maler v. Superior Court (1990) 220 Cal.App.3d 1592 [ 270 Cal.Rptr. 222 ] and in Doctors’ Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284 [ 275 Cal.Rptr. 674 ], in which the courts did not consider whether Moradi-Shalal, supra, 46 Cal.3d 287 , precluded injunctive relief.
In only one of the cases cited by the majority is there even a reference to injunctive relief. In Safeco Ins. Co. v. Superior Court (1990) 216 Cal.App.3d 1491 [ 265 Cal.Rptr. 585 ] (Safeco), the plaintiff sought damages under both the Insurance Code and Business and Professions Code section 17200, and the court correctly rejected this attempt to circumvent Moradi-Shalal, supra, 46 Cal.3d 287 . In describing the plaintiff’s claims, the court also stated that “Under this second theory [the Business and Professions Code], plaintiff claimed an entitlement to an injunction, compensatory damages, additional compensation for prosecuting the action, punitive damages, and attorneys’ fees.” (Safeco, supra, 216 Cal.App.3d at p. 1493 , italics added.) The court explained that “[t]he facts at bench are indistinguishable from those in Moradi-Shalal[, supra, 46 Cal.3d 287 ].” (Id., at p. 1494.) Of course, that view was not entirely correct. The cases were different because in Moradi-Shalal, supra, 46 Cal.3d 287 , there was no claim for injunctive relief. As important, nothing in Safeco, supra, 216 Cal.App.3d 1491, suggests that the claim for injunctive relief was anything more than a makeweight allegation. For all practical purposes the suit appears to have been for compensatory and punitive damages. The fact that the court never even discussed the claim for injunctive relief (the entire discussion in the opinion was a mere three paragraphs) suggests that no serious issue was ever raised as to injunctive relief.
In short, the majority relies on five Court of Appeal decisions—four of which have no relevance at all, and one of which has a three-word reference to the issue.
The majority’s reliance on the progeny of Moradi-Shalal, supra, 46 Cal.3d 287 , is misplaced in two other, perhaps more fundamental, respects. First, the issue in that case was whether the Legislature had intended, in enacting a particular statute (Ins. Code, § 790.03, subd. (h)), to create a private cause of action for damages. In light of our holding that no such cause of action *1211 was intended, it would have been anomalous for subsequent courts to conclude that the same relief (i.e., damages) could be recovered for the same misconduct, merely by seeking them under a different statute. Whether different relief could be sought under a different statute is another question.
Second, in the post-Moradi-Shalal context, the courts were faced with two statutes. We held in Moradi-Shalal that the Legislature intended no private cause of action under one statute (Ins. Code, § 790.03, subd. (h)). To allow the same relief under a different statute would require the conclusion that the Legislature intended to give with one hand what it took away with another. That is not the situation now before us. To the contrary, the Legislature has in one statute provided for injunctive relief for unlawfiil business practices. (Bus. & Prof. Code, § 17203.) There is no competing statute in which the Legislature has manifested an intent to preclude such relief.
4. The majority’s practical result
Rather than buttressing the integrity of the judicial system, today’s decision taints it. Adequate access to the judicial system is one thing. Illegal access is another. No one disputes that attorney solicitation is wrong and repugnant—so much so that the Legislature has made it unlawful, even criminal. The court, however, refuses to allow the victim of this crime any direct redress. Up to a point, I agree, as reflected by my concurrence in the majority’s decision not to allow recovery of damages. But prohibiting the victim from seeking injunctive relief tips the balance too far in favor of criminal conduct.
Conversely, allowing injunctive relief does not in any meaningful way restrict legal access to the courts. Unlike a separate claim for damages, a request for injunctive relief can be decided quickly and relatively easily. If solicitation is not found, that will be the end of the matter, and the attorney (as well as his clients) will have full judicial access. If solicitation is found, it will be nipped in the bud, as it should be, but any right to legal access remains unimpeded. Moreover, regardless of whether any unlawful solicitation is found, the underlying action is allowed to proceed, regardless of whether it has any merit. That alone ensures full judicial access for litigants. The only person whose access is restricted is the attorney who engages in unlawful solicitation.
Prohibiting injunctive relief also makes no sense to the victim. Why must he stand idly by while litigation against him is unlawfully solicited? That is a crime in and of itself, regardless of the possible merit of the litigation. The *1212 victim should not be denied the statutory right to enjoin the criminal conduct. 3
Finally, I am troubled by the majority’s fundamental premise that we must take the draconian measure of refusing a victim of unlawful solicitation his specific, concrete statutory right so that we can ensure unfettered access to the courts. California has tens of thousands of competent, ethical attorneys. Any person with even a remotely meritorious claim can and will find an attorney. (One consequence of the majority’s rule is to penalize that vast majority of attorneys who refuse to engage in unlawful solicitation.) By enforcing the statutory remedy for unlawful solicitation, we would not be restricting judicial access for any claim or any person. The only person who would be stopped at the courthouse door would be the attorney who stoops to engage in unlawful solicitation. His client can come through that door and have his full day in court. We need not encourage the crime of solicitation to ensure judicial access.
For the foregoing reasons, I concur in the majority’s reversal of the judgment of the Court of Appeal to the extent that the judgment allowed plantiff to seek damages for the unlawful solicitation. I would affirm the Court of Appeal’s judgment, however, to the extent that it allowed plaintiff to seek injunctive relief.
Panelli, J., and George, J., concurred.
Although I have referred to the person against whom litigation is unlawfully solicited as being a victim, I also believe the prospective client who is unlawfully solicited is a victim as well. Apparently, the majority would allow the prospective client to seek injunctive relief. This result creates an unfair distinction between victims. The person against whom litigation is unlawfully solicited suffers at least as much, probably greater, harm than the person who is a prospective client.
The majority states that “[I]t is late in the day to contend that communications with ‘some relation’ to an anticipated lawsuit are not within the privilege.” (Maj. opn., ante, at p. 1194.)
This statement misses the mark. Although some communications have been held to be privileged, in none of the cases cited by the majority has unlawful solicitation been deemed privileged. (Albertson v. Raboff(1956) 46 Cal.2d 375 [ 295 P.2d 405 ] [filing of lis pendens]; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 [ 182 Cal.Rptr. 438 ] [negligent medical report submitted to law enforcement authorities]; Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121 [ 185 Cal.Rptr. 92 ] [communications to an insurer]; Ascherman v. Natanson (1972) 23 Cal.App.3d 861 [ 100 Cal.Rptr. 656 ] [statement by witness to attorney]; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573 [ 131 Cal.Rptr. 592 ] [attorney’s demand letter on behalf of existing client]; Pettitt v. Levy (1972) 28 Cal.App.3d 484 [ 104 Cal.Rptr. 650 ] [alleged false building permit submitted by nonattorneys].) Indeed, in the two cases in which the claim was based on an alleged communication by an attorney, it was clear that the communication was on behalf of the attorney’s existing client. There was no unlawful communication meant to secure a new client. (Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121 ; Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d 573 .)
The majority suggests the victim has adequate recourse in the form of a malicious prosecution action. (Maj. opn., ante, at p. 1200.) That is impractical. It ignores the fact that unlawful solicitation is a crime in and of itself. Whether the solicitation is unlawful has nothing to do with whether the action solicited is meritorious. Thus, even if the underlying litigation proves successful, that does not retroactively eliminate the fact that a crime was committed. The defendant in such an action, however, could not thereafter recover for malicious prosecution because he could not show that it had terminated in his favor. Nor is it clear that the majority would allow recovery even for solicitation of an action that ultimately proves meritless. The majority would apparently allow recovery of damages for malicious prosecution of the action, but not for the wrongful solicitation itself. (Maj. opn., ante, at p. 1200, fn. 6.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793278. Public record. Not legal advice.