Business and Professions Code § 17200
Known as the "Unfair Competition Law" (UCL), § 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. It is designed to protect both competitors and consumers, and is couched in intentionally sweeping language "to enable judicial tribunals to deal with the innumerable new schemes which the fertility of man's invention would contrive." Cel-Tech Communications, Inc. v. Los Angeles Cellular TelCo. (1999) 20 C4th 163, 83 CR2d 548. Because the statute is framed in the disjunctive, plaintiff need only prove the defendant's business conduct is unlawful or unfair or fraudulent.
The UCL defines "unfair competition" as any practice that is (1) unlawful, (2) unfair, (3) fraudulent, or (4) unfair, deceptive untrue or misleading advertising and any act prohibited by Business & Professions Code § 17500. The unlawful practices prohibited by the UCL are any practices forbidden by law, be it civil or criminal, federal, state or municipal, or statutory, regulatory, or court-made. Saunders v. Superior Court (1994) 27 CA4th 832, 33 CR 438.
§ 17200 Hooks Into Other Statutes
§ 17200 borrows violations of other laws. It treats these violations, if committed in the course of business activity, as unlawful practice independently actionable under the UCL.
(a) PRACTICES: To show that a defendant's practice was fraudulent or in violation of Business and Professions Code § 17500, a plaintiff must prove that the business practice is one that is likely to deceive a reasonable consumer to whom the practice is directed. Bank of the West v. Superior Court (1992) 2 C4th 1254, 10 CR2d 538; Committee on Children's Television, Inc. v. General Foods Corp. (1983), 35 C3d 197, 197 CR 783.
(b) REMIEIES UNDER UCL: The UCL statutes expressly authorize equitable relief in the form of an injunction or restitution for violations. Cel-Tech Communications, Inc. v. Los Angeles Cellular TelCo. (1999) 20 C4th 163, 83 CR2d 548.
(c) STATUTE OF LIMITATIONS: The UCL provides a four-year statute of limitations. Section 17208 expressly provides a four-year statute of limitations on UCL actions, which governs the action even though the "borrowed" violation of the statue itself may have a shorter limitations period. "The language of section 17208 admits of no exceptions. Any action of any UCL cause of action is subject to the four-year period of limitations created by that section." Cortez v. Purolator Air Filtration Prods. Co. (2000) 23 C4th 163, 179.
(d) UCL AND INSURUANCE: The UCL now also applies to the insurance industry since the passage of Proposition 103 (Insurance Code § 1861.03(a).
Insurance Code § 1861.03(a) Unfair insurance practices; prohibition
The business of insurance shall be subject to the law of California applicable to any other business, including, but not limited to, the Unruh Civil Rights Act (Sections 51 to 53, inclusive, of the Civil Code), and the antitrust and unfair business practices laws (Parts 2 (commencing with Section 16600) and 3 (commencing with Section 17500) of Division 7 of the Business and Professions Code.
§ 17200 Unfair competition; prohibited activities
As use in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 9 commencing with Section 17500) of Part 3 Division 7 of the business and Professions Code.
FRUAUDULENT, BUSINESS ACT OR PRACTICE
“Fraudulent”, as used in statute defining unfair competition is any unlawful, unfair or fraudulent business act or practice, does not refer to common-law tort of fraud but only requires showing that members of public are likely to be deceived. Olsen v. Breeze, Inc. (App.3dist 1996) 55 Cal.Rptr.2d 818, 48 Cal.app.4th 608, as modified.
INTENT, ELEMENTS OF CLAIM
Unfair competition statute imposes strict liability; therefore, it is not necessary to show that defendant intended to injure anyone. Hewlett v. Squaw Valley Ski Corp. (App. 3 Dist. 1997) 63 Cal.Rptr.2d 118, 54 Cal.App.4th 499.
DECEPTION, ELEMENTS OF CLAIM
To state a claim under the California Unfair Business Practices Act (UBPA), one need only show that members of the public are likely to be deceived, and a claim based on false or misleading advertising and unfair business practices must be evaluated from the vantage of a reasonable consumer. Cairns v. Franklin Mint Co., C.D.Cal. 1998, 24 F.Supp.2d 1013, 49 U.S.P.Q.2d 1396.
ADMISSIBILITY OF EVIDENCE
In proving unfair business practice violation, claimants are entitled to introduce evidence not only of practices which affect them individually, but also similar practices involving other members of public who are not parties to action. Cisneros v. U.D. Registry, Inc. (App. 2 Dist. 1995) 46 Cal.Rptr.2d 233, 39 Cal.App.4th 548, rehearing denied 116 S.Ct. 777, 133 L.Ed.2d 729.
Court in a suit brought on behalf of the general public under the unfair competition statute can order restitution of money lost through acts of unfair competition, whether or not the court also enjoins future violations; however, the due process implications of ordering restitution for absent persons should be considered. Resse v. Wal-Mart Stores, Inc. (App. 3 Dist. 1999) 87 Cal.Rptr.2d 46, 73 Cal.App.4th 1225.
Actions for relief; prosecutors
Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violations of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city and county in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person who has suffered injury in fact and has lost money or property as a result of such unfair competition. (Prop 64 Nov. 2004)
False or misleading statements; penalty
It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, any statement, concerning such real or personal property or services, professional or otherwise, ,or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, 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, or for any such person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell such personal property services, professional or otherwise, so advertised at the price stated therein, or as so advertise. Any violation of the provision of this section is a misdemeanor punished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both.
Defendants were not held vicariously liable for tortuous acts of others, but were properly held liable as conspirators when it was established by evidence that they had participated in dissemination of false information respecting a marketing program by sponsoring and staging meetings at which false information was disseminated. People v. Bestline Products, Inc. (App. 2 Dist. 1976) 132 Cal.Rptr. l767, 61 Cal.App.3d 879.
Solicitation at residence of prospect; statement of purpose; contents; penalties, remedies and defenses, demands for termination; local regulations
(a) It is unlawful for any person to solicit a sale or order for sale of goods or services at the residence of a prospective buyer, in person or by means of telephone, without clearly, affirmatively and expressly revealing at the time the person initially contacts the prospective buyer, and before making any other statement, except a greeting, or asking the prospective buyer any other questions, that the purpose of the contact is to effect a sale, by doing all of the following:
(1) Stating the identity of the person making the solicitation.
(2) Stating the trade name of the person represented by the person making the solicitation.
(3) Stating the kind of goods or services being offered for sale.
(4) And, in the case of an ""in person" contact, the person making the solicitation shall, in addition to meeting the requirements of paragraphs (1), (2) and (3), show or display identification which states the information required by paragraphs (1) and (2) as well as the address of the place of business of one of such persons so identified.
(b) It is unlawful for any person, in soliciting a sale or order for the sale of goods or services at the residence of a prospective buyer, in person or by telephone, to use any plan, scheme, or ruse which misrepresents his true status of mission for the purpose of making such sale or order for the sale of goods or services.
Violations; penalty; actions for recovery; expenses of investigation and prosecution; disposition of proceeds from penalties
(a) Any person who engages, has engaged, or proposes to engage in unfair competition shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by any district attorney, by any county counsel authorized by agreement with the district attorney in actions involving violations of a county ordinance, by any city attorney, or city and county, having a population in excess of 750,000, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor, or, with the consent of the district attorney, by a city attorney in any city and county, in any court of competent jurisdiction.
(b) The court shall impose a civil penalty for each violation of this chapter. In 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.
(c) If the action is brought by the Attorney General, one-half of the penalty collected shall be paid to the treasurer of county in which the judgment was entered, and one-half to the State General fund. If the action is brought by a district attorney or county counsel, the penalty collected shall be paid to the treasurer of the county in which the judgment was entered. Except as provided in subdivision (d), if the action is brought by a city attorney or city prosecutor, one-half of the penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered.
Additional penalties for violations against senior citizens or disabled persons; definitions; factors to be considered; priority of restitution
(a) In addition to any liability for a civil penalty pursuant to Section 17206, any person who violates this chapter, and the act or acts of unfair competition are perpetrated against one or more senior citizen or disabled persons, may be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which may be assessed and recovered in a civil action as prescribed in Section 17260.
Penalties and action for recovery:
(a) any person who engages, has engaged, or proposes to engage in unfair competition shall be liable for a civil penalty not to exceed two thousand five hundred dollars for each violation.
Additional penalties for violations against senior citizens:
(a) In addition to any liability for a civil penalty pursuant to Section 17206, any person who violates this chapter, and the act or acts of unfair competition are perpetrated against one or more senior citizens may be liable for a civil penalty not toe exceed two thousand five hundred dollars for each violation.
§ 6125 Necessity of active membership in state bar
No person shall practice law in this State unless he is an active member of the State Bar
The practice of law
The term “practice law” or “practice of the law,” as generally understood, is the doing and performing of services in court of justice in any matter pending therein, throughout its various stages, in conformity to adopted rules of procedure, but in larger sense includes legal advice and counsel and preparation of legal instruments and contracts by which legal rights are secured, though such matters may not be pending in court. People v. Sipper (1943) 142 P.2d 960, 61 C.A.2d Supp. 844.
A layman preparing legal papers or furnishing other legal services unlawfully practices law, though such services are incidental to another business or profession. Agran v. Shapiro (1954) 273 P.2d 619, 127 C.A.2d.
§ 6126 Unauthorized practice, penalty
(a) Any person advertising or holding himself or herself out as practice or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, is guilty of a misdemeanor.
The practice of law
“Practicing law,” means more than just appearing in court; practice of the law includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights,are secured although such matter may or may not be pending in a court. Estate of Condon (App. 1 Dist. 1998) 76 Cal.rptr.2d 922, 65 Cal.App.4 th 1138, review denied.
§ 6126.5 Additional remedies and penalties
(a) In addition to any remedies and penalties available in any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney acting as a public prosecutor, the court shall award relief in the enforcement action for any person who obtained services offered or provided in violation of Section 6125 or 6126 or who purchased any goods, services, or real or personal property in connection with services offered or provided in violation of Section 6125 or 6126 against the person who violated Section 6125 or 6126, or who sold goods, services, ,or property in connection with that violation.
(1) Actual Damages. (2) Restitution of all amounts paid. (3) The amount of penalties and tax liabilities incurred in connection with the sale or transfer of assets to pay for any goods, services, or property. (4) Reasonable attorney's fees and costs expended to rectify errors made in the unlawful practice of law. (5) Prejudgment interest at the legal rate from the date of loss to the date of judgment. (6) Appropriate equitable relief, including the rescission of sales made in connection with a violation of law.
(b) The relief awarded under paragraph (1) to (6), inclusive, of subdivision (a) shall be distributed to, or on behalf of, the person for whom it was awarded or, if it is impracticable to do so, shall be distributed as may be directed by the court pursuant to its equitable powers.
Business and Professions Code Article 7 - Illegal Solicitation - Capping
§ 6152 Prohibition of solicitation
(a) It is unlawful for:
(1) Any person, in an individual capacity or in a capacity as a public or private employee, or for any firm, corporation, partnership or association to act as a runner or capper for any attorney or to solicit any business for any attorneys in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, municipal courts, superior courts, or in any public institutions or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institutions or upon private property of any charter whatsoever.
(2) Any person to solicit another person to commit or join in the commission of a violation of subdivision (a).
Conspiracy and aiding and abetting
Attorney who employs runners or cappers in the solicitation of business for him may be held criminally liable on a theory of aiding and abetting and may also be charged with conspiracy. Hutches v. Municipal Court of Santa Monica Judicial Dist., Los Angeles County (1976) 132 Cal.Rptr. 158, 61 C.A.3d 77.
§ 6153 Violations; penalty
Any persons, firm, partnership, association, or corporation violating subdivision (a) of Section 6152 is punishable, upon a first conviction, by imprisonment in a county jail for not more than one year or by a fine not exceeding fifteen thousand dollars ($15,000), or by both that imprisonment and fine. Upon a second or subsequent conviction, a person, firm, partnership, association, or corporation is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding fifteen thousand dollars ($15,000), ,or by both that imprisonment and fine.
§ 6400 Unlawful Detainer Assistants
(a) "unlawful detained assistant" means any individual who for compensation renders assistance or advice in the prosecution or defense of an unlawful detained claim or action, including any bankruptcy petition that may affect the unlawful detained claim or action.
(b) "Unlawful detained claim" means a proceeding, filing, or action affecting rights or liabilities of any person that arises under Chapter 4 of Title 3 of the Code of Civil Procedure that contemplates an adjudication by a court.
(c) "Compensation" means money, property, or anything else of value.
(d) "Self-help services" means all of the following:
(1) Completing legal documents in a ministerial manner, selected by a person who is representing his or herself in a legal matter, by typing or otherwise completing the documents at the person's specific direction.
(2) Providing general published factual information that has been written or approved by an attorney pertaining to legal procedures, rights, or obligations to a person who is representing himself or herself in a legal matter,, to assist the person in representing himself or herself. This service in and of itself, shall not require registration as a legal document assistant.
(3) Making published legal documents available to a person who is representing his or herself in a legal matter.
(4) Filing and serving legal forms and documents at the specific direction of a person who is representing himself or herself in a legal matter.
This section shall remain in effect only until January 1, 2003, and as of that date is repealed, unless a later enacted statue, that is enacted before January 1, 2003, deletes or extends that date.
§ 6401 Exempted Individuals
This chapter does not apply to any of the following:
(a) Any government employee who is acting in the course of his or her employment.
(b) An active member of the State Bar of California, or his or her employee or agent, acting under the member's supervision, or an independent contractor while acting on behalf of, and under the supervision of, the member.
(c) Any employee of a nonprofit, tax-exempt corporation who assists clients free of charge.
(d) A licensed real estate broker or licensed real estate salesperson who is a part to the unlawful detained action.
§ 6401.6 Legal Document Assistant
A legal document assistant shall not provide service to a client who requires assistance that exceeds definition of self-help service in subdivision (d) of Section 6400, and shall inform the client that the client requires the services of an attorney.
This section shall remain in effect only until January 1, 2003, and as of that date is repealed, unless a later enacted statue, that is enacted before January 1, 2003, deletes or extends that date.
§ 6450 Paralegal; defined; prohibitions; certification
(a) "Paralegal" means a person who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. Tasks performed by a paralegal include, but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.
(b) Notwithstanding subdivision (a), a paralegal shall not do any of the following:
(1) Provide legal advice.
(2) Represent a client in court.
(3) Select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal.
(4) Act as a runner or capper, as defined in Section 611 and 6152.
(5) Engage in conduct5 that constitutes the unlawful practice of law.
(6) Contract with, or be employed by, a natural person other than an attorney to perform paralegal services.
(7) In connection with providing paralegal services, induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit, or both, purportedly may be derived.
(8) establish the fees to charge a client for the services the paralegal performs, which shall be established by the attorney or supervises the parallel's work. This paragraph does not apply to fees charged by a paralegal in a contract to provide paralegal services to an attorney, law firm, corporation, governmental agency, or other entity as provided in subdivision (a).
Insurance Code Article 6.3 - Senior Insurance
INSURANCE CODE § 785: Duty of Honesty, Good Faith and Fair Dealing
(a) All insurers, brokers, agents, and others engaged in the transaction of insurance owe a prospective insured who is age 65 years or older, a duty of honesty, good faith, and fair dealing. This duty is in addition to any other duty, whether express or implied, that may exist.
(b) Conduct of an insurer, broker, or agent, or other person engaged in the transaction of insurance, during the offer and sale of a policy or certificate previous to the purchase is relevant to any action alleging a breach of the duty of good faith and fair dealing.
INSURANCE CODE § 785.4: Prohibition on delivering legal documents
Makes it unlawful for an insurance agent who is not licensed as an attorney to deliver a living trust or other legal document into the home of a senior if a purpose of the delivery is to sell an insurance product.
INSURANCE CODE § 785.5: VA benefits program sales restrictions
1. Insurance Code 785.5 prohibits an insurance broker or agent from participating in, being associated with, or employing any party that participates in the business of obtaining veterans’ benefits for a senior unless the insurance agent or broker maintains procedural safeguards designed to ensure that the agent or broker has no direct financial incentive to refer the policyholder or prospective policyholder to any government benefits program. This law makes sure insurance agents do not deceptively peddle their products if they are working with other groups or individuals who are assisting veterans with qualifying for benefits.
INSURANCE CODE § 789. Penalties, costs and attorney fees. District Attorneys
(e) Actions for injunctive relief, penalties specified in Section 789.3, damages, restitution, and all other remedies in law, may be brought in superior court by the Attorney General, district attorney, or city attorney on behalf of the people of California. The court shall award reasonable attorney’s fees and court costs to the prevailing plaintiff who establishes a violation of this article.
INSURANCE CODE § 789.8 Disclosure statements
(a) "Elder" for purposes of this section means any person residing in the state, 65 years of age or older.
(b) If a life agent offers to sell to an elder any life insurance or annuity product, the life agent shall advise an elder or elder's agent in writing that the sale or liquidation of any stock, bond, IRA, certificate of deposit, mutual fund, annuity, or other asset to fund the purchase of this product may have tax consequences, early withdrawal penalties, or other costs or penalties as a result of the sale or liquidation, and that the elder or elder's agent may wish to consult independent legal or financial advice before selling or liquidating any assets and prior to the purchase of any life or annuity –products being solicited, offered for sale, or sold.
(c) A life agent who offers for sale or sells a financial product to an elder on the basis of the product's treatment under the Medi-Cal program may not negligently misrepresent the treatment of any asset under the statues and rules and regulations of the Medi-Cal program, as it pertains to the determination of the elder's eligibility for any program of public assistance.
(d) A life agent who offers for sale or sells any financial product on the basis of its treatment under the Medi-Cal program shall provide, in writing, a disclosure to the elder or the elder's agent.
INSURANCE CODE § 789.10
2. Insurance Code 789.10(b) specifies what information must be contained in the notice delivered to the senior no more than 14 days prior to the meeting with the insurance agent. The law now requires that the notice be a stand-alone document in 16-point, rather than 14-point, type, that the notice include specified information regarding the agent, including his or her full name and license number, and that the notice include a specified statement about the purpose of the visit.
INSURANCE CODE Article 6.5 UNFAIR PRACTICES § 790
Purpose of Article; regulation of trade practices in insurance business
The purpose of this article is to regulate trade practices in the business of insurance in accordance with the intent of Congress as expressed in the Act of Congress of March 9, 1945 (Public law 15, Seventy-Ninth Congress), by which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.
INSURANCE CODE § 790.02 Engaging in trade practice defined as unfair method of competition prohibited
No person shall engage in this State in any trade practice, which is defined in this article as, or determined pursuant to this article to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.
INSURANCE CODE § 790.03 Prohibited Acts
The following are hereby defined as unfair methods or competition and unfair and deceptive acts or practices in the business of insurance.
(a) (Misrepresentations; false or misleading statements) Making, issuing, circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby or the dividends or share of the surplus to be received thereon, or making any false or misleading statement as to the dividends or share of surplus previously paid on similar policies, or making any misleading representation or any misrepresentations as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates, or using any name or title of any policy or class of policies misrepresenting the true nature thereof, or making any misrepresentation to any policyholder insured in any company for the purpose of inducing or tending to induce such policyholder to lapse, forfeit, or surrender his or her insurance.
(b) (Untruthful, deceptive, or misleading statement) Making or disseminating or causing to be made or disseminated before the public in this state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatsoever, any statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his or her insurance business, which is untrue, deceptive, or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue, deceptive, or misleading.
PENAL CODE § 368 (a) Elder Abuse: Legislative Intent
The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.
PENAL CODE § 368 (d) Criminal Financial Abuse
Any person who is not a caretaker who violates any provision of law proscribing theft or embezzlement, with respect to the property of an elder or dependent adult, and who knows or reasonably should know that the victim is an elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the money, labor, or real or personal property taken is of a value not exceeding four hundred dollars ($400).
PENAL CODE § 368 (g)(h) Definitions
(g) As used in this section, “elder” means any person who is 65 years of age or older.
(h) As used in this section, “dependent adult” means by person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the health and Safety Code.
PENAL CODE § 459 Burglary
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises, assumed character, marrying, or receiving any money or property. Imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both.
Authorized entry, elements of offense
Person who enters for a felonious purpose may be found guilty of burglary
even if he enters with the owner's or occupant's consent. People v. Frye (1998) 77 Cal.Rptr.2d 25, 18 Cal.4th 984, 19 Cal.4th 253D, 959 P.2d 183, rehearing denied, as modified, petition for certiorari filed.
PENAL CODE § 484 Theft defined
(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud.
Elements of offense, false pretenses
Theft by false pretenses does not require that the defendant take the
property; it requires that the defendant use false pretenses to induce the other to give the property to him. People v. Miller (App. 6 Dist. 2000) 7 Cal.Rptr.2d 684, 81 Cal.app.4th 1427, modified on denial of hearing, review denied.
Act constituting false pretense
Theft may be committed when the accused persons, with a preconceived design to obtain and appropriate property by means of fraud or trickery, thereby gain possession of the property, even though they do not retain or use it for their own benefit. People v. Miller (app. 6 Dist. 2000) 97 Cal.Rptr.2d 684, 81 Cal.App.4th 1427), modified on denial of rehearing, review denied.
PENAL CODE § 487 Grand theft defined
Grand theft is theft committed in any of the following cases:
(a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400).
PENAL CODE § 532 False pretenses; obtaining money, labor or property
(a) Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, or who causes or procures others to report falsely of his or her wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.
False pretense or false representation
The form of words, in which false pretense is couched, is immaterial, and if words intended to create and did create impression that defendant was making a representation as to a present or past fact, the pretense is a "false pretense." People v. Staver (App. 2 Dist. 1953) 115 Cal.App.2d 711, 252 P.2d 700.
A person's taking of another's property by force of opinion, asserted in bad faith with design to mislead, is "false pretense". People v. Gordon (App. 1 Dist. 1945) 71 Cal.App.2d 606, 163 P.2d 110.
A false pretense is a misrepresentation as to an existing fact or past event, and not a mere promise to do something in the future or a misrepresentation as to do something to take place in the future. People v. Green (App. 1913) 22 Cal.App. 45, 133 P. 334.
False pretense element of theft by false pretenses may consist in any act, word, symbol, or token calculated and intended to deceive, and it may be either express or implied from words or conduct. People v. Miller (App. 6 Dist. 200) 97 Cal.Rptr.2d 684, 81 Cal.app.4th 1427, modified on denial of rehearing, review denied.
Nature and elements of offense, generally
Theft conviction on the theory of false pretenses requires proof that (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on 684, 81 Cal.App.4th 1427, modified on denial of rehearing, review denied.
Reliance on pretense
"Reliance," in context of prosecution for theft by false pretenses, means that the false representation materially influenced the owner's decision to part with his property; it need not be the sole factor motivating the transfer People v. Miller (App. 6 Dist. 200) 97 Cal.Rptr.2d 684, 81Cal.App.4th 1427, modified on denial of rehearing, review denied.
Presumptions and burden of proof
With respect to crime of theft by false pretenses, intent to defraud is question of fact to be determined from all facts and circumstances, and inference of reliance on part of victim nay be drawn from all evidence but it is not essential even that victim expressly testify that he was induced to part with his money or property by the fraudulent statements of the accused. People v. Mason (App. 2 Dist. 1960) 7 Cal.Rptr. 627, 184Cal.App.2d 317, certiorari denied 81 S.Ct. 1046, 366 U.S. 904, 6 L.Ed.2d 203.
Reliance on false representation, as necessary to establish theft by false pretenses, may be inferred from all the circumstances. It is unnecessary to prove all of the false representations claimed in prosecution for theft by false pretense, provided that enough are proven to convince the jury that those shown were material in inducing the victim to part with his money. People v. Miller (App. 6 Dist. 200) 97 Cal.Rptr.2d 684, 81 Cal.App.4th 1427, modified on denial of rehearing, review denied.
If conviction for theft by false pretenses rests primarily on the testimony of a single witness that the false pretense was made, necessary corroboration for the making of the pretense may be found in circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons. When more than one witness testifies to defendant's false pretenses, even though made on separate occasions, multiple witness requirement for corroboration is met as long as same type of scheme is involved and same manner is employed. People v. Miller (App. 6 Dist. 200) 97 Cal.Rptr.2d 684, 81 Cal.App.4th 1427, modified on denial of rehearing, review denied.
Page Last Modified:
April 26, 2016