Greenlining Institute

103 Cal. App. 4th 1324 (2002), 127 Cal. Rptr. 2d 736, 2002 Cal. App. LEXIS 5066

The Court of Appeal (First District, Division 3) affirmed the Commission order at issue but held that the Commission did not possess the jurisdiction to enforce Section 17200, et seq., of the Business and Professions Code (“Unfair Competition Law” or “UCL”).  The Commission had held that it had “discretion” to leave enforcement of the UCL to the courts.  Greenlining argued that the Commission was required to decide UCL issues. While the Court affirmed the Commission’s decision, it rejected both views.  It held that, while the Commission might consider the UCL in deciding other questions, enforcement of the UCL was a task left to the courts.  (The extent to which the Commission’s resolution of those “other questions” binds the Superior Court in UCL cases depends on your reading of Orloff and of cases cited therein (see the Appendix to this document regarding Section 1759.)  Notably, the Court did not affirm or “set aside” (reverse) the Commission’s order (as required by Section 1758) but simply denied the Petition for Writ of Review, thereby upholding the outcome, if not the rationale, of the Commission’s decision.  A reading of Greenlining and Pacific Bell (Para. 36) may leave the reader with some uncertainty regarding the power of the Court of Appeal to summarily deny a writ petition.  The still open question is whether a procedurally sound petition that raises an important question of law must be heard regardless of its merit.  What should be less open to question is whether the Court, having accepted review by granting a petition for writ of review, may then affirm the Commission’s order by denying the petition in a written opinion.  This procedural device is simply not an option available under Section 1758.  (At footnote 11 of the opinion, the Court warns the parties that because it denied the petition for writ of review, the order was “final” on the date of filing, an admonition at odds with Bay Development v. Superior Court, 50 Cal. 3d 1012, 1024-25 (1990).

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