Kraus v. Trinity Management

The full case caption appears at the end of this opinion. We are asked to decide whether, in an action that is not certified as a class action, but is brought on behalf of absent persons by aprivate party under the unfair competition law (UCL) (Bus. & Prof. Code, � 17200 et seq.), [FOOTNOTE 1] the court may orderdisgorgement into a fluid recovery fund, and whether permitting such UCL actions denies due process to the defendants. We alsoaddress a claim that the Court of Appeal erred in upholding the trial court’s construction and application of Civil Code section1950.5 in this case. We conclude that disgorgement into a fluid recovery fund is not a remedy available in such representative UCL actions and thatCivil Code section 1950.5 does not apply to defendants’ nonrefundable security and administrative fees. We also conclude thatdefendants in this case have not been denied due process. We shall reverse the judgment of the Court of Appeal. I FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Vickey Kraus and five other individual plaintiffs initiated this action on behalf of themselves and the present and formertenants of defendants. The action sought declaratory relief, restitution, and civil penalties for allegedly unlawful assessments ofnonrefundable tenant charges for pre-lease administrative services, liquidated damages, and security for unpaid rent. The nameddefendants are Trinity Properties, which owns and leases residential rental properties in the City and County of San Francisco,Trinity Management Services, Inc., which manages and operates those properties, and various individuals who are officers anddirectors of those entities. The complaint alleged that the plaintiffs were former tenants of properties owned and managed by defendants, each of whom,and all other past and present tenants, had been required to pay $100 as a nonrefundable security and administrative fee at thetime they entered into the lease. [FOOTNOTE 2] Those plaintiffs who had terminated their leases and vacated the leasedapartments prior to the end of the term had been assessed liquidated damages equal to one month’ s rent and unpaid rent for thebalance of the one-year lease term prior to sublease or re-lease of the apartments. A security deposit equal to one month’ s rentthat each tenant was also required to pay was routinely applied to offset liquidated damages. The first cause of action asserted a violation of Civil Code section 1950.5, which bans nonrefundable security deposits, and wasaddressed to defendants’ TIER fees, a charge for pre-lease administrative services. The second cause of action asserted that theliquidated damages clause of the leases was void as a penalty banned by Civil Code section 1671, or, in the alternative, should beconstrued as authorizing termination of the lease prior to its expiration. The third cause of action alleged that defendants had beenunjustly enriched to the extent that they had collected the security deposits and liquidated damages in violation of those statutes,and sought restitution of those tenant payments. Finally, the fourth cause of action, that with which we are principally concernedhere, alleged that defendants’ practice of assessing the TIER fees and their practice of assessing both liquidated damages and theremainder of the rent when tenants terminated their leases before the end of the term were unlawful and unfair business practicesthat violated the UCL. [FOOTNOTE 3] Plaintiffs sought an order that (1) defendants repay them and all other present and former tenants the full amount of all TIER feescollected from them with interest since the date of collection; (2) statutory damages of $600 pursuant to Civil Code section 1950.5,subdivision (k), for each former and present tenant from whom the administrative fee security deposit had been collected; (3) adeclaration that the liquidated damages provision of the lease was void or that tenants might elect to treat the liquidated damagesas consideration for early termination; (4) an order that defendant return all amounts collected as liquidated damages, or at thetenants’ election, all amounts collected as rent for periods following early termination; (5) assessment of a civil penalty of $2,500for each violation of the UCL; [FOOTNOTE 4] (6) an order that defendants cease the allegedly unlawful practices; and (7)attorney fees as well as any other appropriate relief. At a pretrial hearing the court commented that disgorgement, rather than recovery for all injured persons, seemed to be theremedy authorized by the UCL, and that a defendant should disgorge profits obtained as a result of an unfair business practice.Plaintiffs’ counsel concurred that equitable remedies of restitution or disgorgement were authorized, but argued that if there was tobe disgorgement the monies should be paid to the tenants and former tenants from whom they had been obtained. He offered tosubmit a supplemental brief on the appropriate remedy if it was not possible to locate some of those people, but also agreed thatthe essential form of recovery was equitable and restitutionary in nature and should begin with disgorgement of the fundsunlawfully collected. Counsel’ s opening statement then identified rescission or disgorgement as the relief sought on the UCLcause of action. Plaintiffs’ counsel subsequently advised that he would propose equitable remedies beyond those identified in thecomplaint and asked that the court order disgorgement of the entire amount of the TIER fees and improperly retained liquidateddamages/security deposit funds. Counsel also suggested that, to the extent that restitution could not be made to individual plaintiffs,the defendants be ordered to disgorge the money unjustly collected to a fluid recovery fund. The court found that the challenged practices violated the cited provisions of the Civil Code and constituted unfair businesspractices which violated the UCL. The court enjoined defendants from assessing TIER fees or any other nonrefundable chargesas a condition of tenancy, collecting and retaining security deposits for the purpose of charging them against liquidated damages,and including liquidated damages provisions in the lease. It ordered Trinity Properties to disgorge $447,700 for liquidateddamage/security fee assessments [FOOTNOTE 5] and Trinity Management Services, Inc., to disgorge $447,000 of TIER fees, thesums collected within the four-year statute of limitations period of April 6, 1990 through February 28, 1995, with interest at 6percent per annum. After awarding a total of $2,655 in TIER and security deposit monies to the plaintiffs, the judgment directedthat defendant Trinity Management Services, Inc., “shall on the date of this order and for a period of 90 days thereafter, pay toeach payor of the $100 TIER fee the sum of $100 as restitution. Such payments shall be made to those persons who may, withdue diligence, be found. Restitution made in accordance with this provision shall be deducted from the amount required fordisgorgement.” The court made no express order for restitution to prior tenants of any of the liquidated damage/security fee sumsto be disgorged. [FOOTNOTE 6] The judgment directed that the funds disgorged be placed in a fluid recovery fund. That fund was to be organized andadministered as a trust fund “for the purpose of providing financial assistance for the advancement of legal rights and interests ofresidential tenants in the City and County of San Francisco.” The order for fluid recovery was made over the express objection ofdefendants that the remedy was available only in a class action. Defendants also objected that no award could be made to personswho were not parties to the action. Defendants appealed, claiming, inter alia, that the fluid recovery fund award in a matter not certified as a class action exceededthe jurisdiction of the court. They also claimed that the order denied defendants due process because the award left defendantsopen to repeated litigation by nonparties who would not be bound by the judgment. [FOOTNOTE 7] They also argued that theTIER fees were not unlawful and that collateral estoppel barred plaintiffs’ assertion of illegality. The Court of Appeal held that section 17203 authorizes an order for disgorgement and/or restitution as relief ancillary to aninjunction against an unfair trade practice, and that provision for payment into a fluid recovery fund is within the equitable power ofthe court regardless of whether the action is one by a private party or one by the Attorney General or a district attorney. The courtdid not address defendants’ due process claims, holding only that through the UCL the Legislature had created a streamlinedprocedure by which to challenge unfair business practices, and that this case was not one in which a class action would bepreferable. [FOOTNOTE 8] The court approved establishment of a fluid recovery fund in a representative UCL action as apermissible exercise of the broad equitable power granted to the trial court by section 17203, relying in part on Fletcher v.Security Pacific National Bank (1979) 23 Cal.3d 442, 450 (Fletcher), where this court commented on the importance ofdisgorgement as a deterrent. The Court of Appeal acknowledged that class actions might be superior to individual actions incircumstances such as those considered by the Court of Appeal in Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214Cal.App.3d 699 (Bronco Wine Co.), but deemed the issue before it to be simply whether the trial court should have certified theaction as a class action. [FOOTNOTE 9] Finding the circumstances in the instant case to be more analogous to those in one of itsprior cases, Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, the Court of Appeal concluded that thetrial court was not required to certify this action as a class action before ordering disgorgement into a fluid recovery fund. The court also rejected defendants’ argument that a 1983 judgment upholding the TIER fee collaterally estopped plaintiffs fromchallenging the fee in this action, reasoning that an intervening change in the law removed that barrier. It then held that the TIERfee was a security within the meaning of Civil Code section 1950.5, and that since Trinity Management Services, Inc., collectedthe fee on behalf of Trinity Properties, that section applied to the TIER fee. Defendants petitioned this court for review. Their principal claim is that the Court of Appeal erred in approving disgorgement intoa fluid recovery fund without class action certification. Their due-process-based argument that such awards are constitutionallyimpermissible rests on the proposition that absent persons are not bound by a UCL judgment unless the judgment is rendered in aclass action with its attendant protections. Absent class certification the defendant in such an action remains subject to countlessfuture lawsuits based on the same conduct and raising the same issues even if the defendant has prevailed in the UCL action. Ifthe plaintiff prevails, the defendant is still liable to all of the nonjoined class members each of whom is entitled to a similar fundaward. This, defendants argue, denies due process to UCL defendants. Several amici curiae, among them the American Council of Life Insurance (ACLI) and Truck Insurance Exchange, suggest thatwe need not address the constitutional argument because, properly construed, the UCL does not authorize fluid recovery orrepresentative actions seeking restitutionary relief on behalf of absent persons without class certification. II UCL MONETARY REMEDIES Both consumer class actions and representative UCL actions [FOOTNOTE 10] serve important roles in the enforcement ofconsumers’ rights. Class actions and representative UCL actions make it economically feasible to sue when individual claims aretoo small to justify the expense of litigation and thereby encourage attorneys to undertake private enforcement actions. Throughthe UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices in order to protect the publicand restore to the parties in interest money or property taken by means of unfair competition. These actions supplement the effortsof law enforcement and regulatory agencies. This court has repeatedly recognized the importance of these private enforcementefforts. (See La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 883; Vasquez v. Superior Court (1971) 4 Cal.3d800, 807-808; Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 715.) In our ensuing discussion of the UCL, when we refer to orders for restitution, we mean orders compelling a UCL defendant toreturn money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is,to persons who had an ownership interest in the property or those claiming through that person. [FOOTNOTE 11] An order that adefendant disgorge money obtained through an unfair business practice may include a restitutionary element, but is not so limited.As in this case, such orders may compel a defendant to surrender all money obtained through an unfair business practice eventhough not all is to be restored to the persons from whom it was obtained or those claiming under those persons. It has also beenused to refer to surrender of all profits earned as a result of an unfair business practice regardless of whether those profitsrepresent money taken directly from persons who were victims of the unfair practice. “The term ‘ fluid recovery’ refers to the application of the equitable doctrine of cy pres in the context of a modern class action.(State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472.) ‘ The implementation of fluid recovery involves threesteps. [Citation.] First, the defendant’ s total damage liability is paid over to a class fund. Second, individual class members areafforded an opportunity to collect their individual shares by proving their particular damages, usually according to a loweredstandard of proof. Third, any residue remaining after individual claims have been paid is distributed by one of several practicalprocedures that have been developed by the courts.’ (Id. at pp. 472-473.)” (Granberry v. Islay Investments, supra, 9 Cal.4th atp. 750, fn. 7.) A. Authority for Fluid Recovery. We have not been asked before to consider whether a fluid recovery remedy, a remedy that is necessary only when a defendantmust disgorge moneys that are not to be returned to the persons from whom they were obtained, is authorized by the UCL.Heretofore, this court has sanctioned fluid recovery only in class actions although two Court of Appeal decisions have approved itsuse in representative UCL actions. (See People v. Thomas Shelton Powers, M.D., Inc. (1992) 2 Cal.App.4th 330 (Powers);People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal.App.3d 683 (Parkmerced).) Fluid recovery developed as a means bywhich to distribute the residue of a favorable class action judgment remaining after payment to those class members who havesufficient interest in obtaining recovery and can produce the documentation necessary to file individual claims. In Bruno v. Superior Court (1981) 127 Cal.App.3d 120, 123-124, a Cartwright Act (� 16700 et seq.) class action seekingdamages on behalf of consumers, the court explained the purpose of fluid recovery: “The theory underlying fluid class recovery isthat since each class member cannot be compensated exactly for the damage he or she suffered, the best alternative is to paydamages in a way that benefits as many of the class members as possible and in the approximate proportion that each memberhas been damaged, even though, most probably, some injured class members will receive no compensation and some people not inthe class will benefit from the distribution; or, as one commentator states it, ‘ where funds cannot be delivered precisely to thosewith primary legal claims, the money should if possible be put to the “next best” use.’ (Note, Developments in the Law – ClassActions (1976) 89 Harv. L. Rev. 1318, 1522.)” The Legislature authorized employment of a fluid recovery remedy in class actions by the 1993 enactment of what is now Codeof Civil Procedure section 384 (Stats. 1993, ch. 863, � 2, p. 4574). [FOOTNOTE 12] However, the Legislature has not expresslyauthorized fluid recovery in UCL actions where restitution to a person in interest is the only monetary remedy for violation of theUCL described in section 17203. Section 17203 provides that remedy and reads in its entirety: “Any person who engages, has engaged, or proposes to engage inunfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments,including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practicewhich constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest anymoney or property, real or personal, which may have been acquired by means of such unfair competition.” (Italics added.)Thus, restitution is the only monetary remedy expressly authorized by section 17203. We first address the statutory construction argument of amici curiae. If the language of a statute is clear and unambiguous, judicial construction is not necessary and a court should not indulge in it.(People v. Fuhrman (1997) 16 Cal.4th 930, 937.) The statutory authorization in section 17203 to make orders necessary torestore money to any person in interest is clear. When restitution is made to a person in interest, fluid recovery is unnecessary.Section 17203 also grants the court the power to make orders necessary to prevent the use of unfair business practices. Suchorders may encompass broader restitutionary relief, including disgorgement of all money so obtained even when it may not bepossible to restore all of that money to direct victims of the practice. However, the Legislature has not accompanied that grant ofpower with authorization for fluid recovery in representative UCL actions. A first principle of statutory construction is that the intent of the Legislature is paramount. (Code Civ. Proc., � 1859.) The court’srole in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law and, in doing sothe court looks first to the words of the statute. (People v. Birkett (1999) 21 Cal.4th 226, 231.) If the language is ambiguous, wemay look to the history and background of the statute to ascertain legislative intent. (Id. at p. 232.) Also, a court must, wheneverpossible, construe a statute so as to preserve its constitutional validity. (Hutnick v. United States Fidelity & Guaranty Co. (1988)47 Cal.3d 456, 466; People v. Davenport (1985) 41 Cal.3d 247, 264.) We presume that the Legislature understands theconstitutional limits on its power and intends that legislation respect those limits. Nothing in the history of the UCL suggests that fluid recovery was contemplated by the UCL itself. The UCL evolved from a1933 amendment to Civil Code section 3369. As enacted in 1872, that statute provided only: “Neither specific nor preventive reliefcan be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.” In 1933,the section was extensively rewritten. The original provision became subdivision 1, which itself was amended to add a secondexception to the limit on injunctive relief – one for unfair competition. Express authority to enjoin unfair competition was created insubdivision 2. Unfair competition was defined in subdivision 3 as an “unfair or fraudulent business practice and unfair, untrue ormisleading advertising and any act denounced by Penal Code Sections 654a, b, or c.” (Stats. 1933, ch. 953, � 1, p. 2482.)Subdivision 5 included a person acting in the interest of the general public among the persons authorized to bring an action for aninjunction. (Stats. 1933, ch. 953, � 1, p. 2482.) Notwithstanding the broadly worded definition of unfair competition, the law was not relied on as the basis of general consumerprotection actions until the late 1950′ s. Even then, however, the law was relied on principally by public prosecutors until Barquisv. Merchants Collection Assn. (1972) 7 Cal.3d 94, a case brought by private plaintiffs, confirmed the breadth of the definition ofunfair competition and the availability of the action for injunctive relief to private plaintiffs. (See Howard, Former Civil CodeSection 3369: A Study in Judicial Interpretation (1979) 30 Hast.L.J. p. 705.) Express statutory authority to order restitution was added to Civil Code section 3369, the predecessor to section 17203, in 1976(Stats. 1976, ch. 1005, � 1, p. 2378), the year before the unfair competition law was placed in the Business and Professions Codeand removed from Civil Code section 3369. (Stats. 1977, ch. 299, � � 1, 2, pp. 1202-1203.) [FOOTNOTE 13] ACLI argues that the language and history of section 17203 suggest that the Legislature did not intend to permit orders directingdisgorgement into a fluid recovery fund or actions seeking restitution to any person other than a direct victim of unfaircompetition [FOOTNOTE 14] It notes that traditionally only injunctive relief was available in a UCL action. Before the Legislatureadded express power to order restitution to the false advertising law (� 17500 et seq.) in a 1972 amendment to section 17535(Stats. 1972, ch. 244, � 1, p. 494) and to the UCL in 1976, restitution had been judicially approved as a proper exercise of theequitable power granted by section 17535 [FOOTNOTE 15] in People v. Superior Court (Jayhill) (1973) 9 Cal.3d 283 (Jayhill),an action brought by the Attorney General. When the Jayhill action was initiated, section 17535 did not expressly authorize anorder for restitution. We held nonetheless that “a court of equity may exercise the full range of its inherent powers in order toaccomplish complete justice between the parties, restoring if necessary the status quo ante as nearly as may be achieved.”(Jayhill, supra, 9 Cal.3d at p. 286.) We did not consider whether disgorgement into a fluid recovery fund was authorized. Weheld only that the court had the power to order defendants to make or offer to make restitution to defrauded customers. (Ibid.) When express authority to order restitution was added to section 17535 and subsequently to what became section 17203,therefore, there was no authority for an order directing disgorgement on behalf of third parties into a fluid recovery fund in a UCLaction. Although the cy pres concept of putting charitable trust funds to the next best use if the trust purpose can no longer beaccomplished was well established and has been expressly authorized by the Legislature (Prob. Code, � 15409), the extension ofthat equitable concept to other areas of civil litigation is a relative recent judicial development of the law which the Legislature hasapproved only for use in class actions. Fluid recovery in class actions was not authorized in this state until 1981, when the Court ofAppeal held in Bruno v. Superior Court, supra, 127 Cal.App.3d 120, that this was a permissible means of distributing damagesrecovered in a state antitrust class action brought under the Cartwright Act (� 16700, et seq.). In 1986, this court affirmed thepropriety of fluid recovery in a class action in State of California v. Levi Strauss & Co., supra, 41 Cal.3d 460. The Legislatureresponded in 1993 by enacting former section 383 of the Code of Civil Procedure, to expressly authorize fluid recovery in classactions. (Stats. 1993, ch. 863, � 2; see now, Code Civ. Proc., � 384.) The Legislature did not sanction fluid recovery orders as anequitable power available to the court in other proceedings. Plaintiffs have directed us to nothing, and we have found nothing, in the legislative history of sections 17203 and 17535 to suggestthat the Legislature intended to authorize fluid recovery in representative UCL actions when it made the power to order restitutionstatutory. As we observed in Fletcher, supra, 23 Cal.3d at page 453, footnote 6, and in Jayhill, supra, 9 Cal.3d at page 287,footnote 1, the Legislature added express power to order restitution to section 17535 only to clarify the law, not to create newauthority. Section 17203 simply tracked the language of section 17535. In both of those sections the Legislature confirmed, but didnot increase the powers of the court in a UCL action. Nor can we infer that the Legislature contemplated that authority to order disgorgement into a fluid recovery fund would be anappropriate complement to the Federal Trade Commission Act (15 U.S.C. � 45 et seq.) (FTC Act). Both laws prohibit a widerange of unfair practices, but the FTC Act has no private enforcement provision comparable to the UCL. The FTC Act may beenforced only by the Federal Trade Commission. (Holloway v. Bristol-Myers Corporation (D.C. Cir. 1973) 485 F.2d 986, 1002(Holloway). [FOOTNOTE 16] The Court of Appeal here reasoned that the trial court, in the exercise of its broad equitable power, had authority to orderdefendants to disgorge all illegally obtained money into a fluid fund, the residue of which after refund of the TIER fees would beused for purposes other than restitution to present and former tenants of defendants. However, this court has never construedsection 17203 as authorizing an order for disgorgement into a fluid recovery fund, or held that such an order may be made as anexercise of the court’s equitable power. In the past, authority for fluid recovery has not been found in the UCL or the powers itgrants the court. Authority to order fluid recovery has its source in the powers of the court when presiding over a class action, asnow expressly confirmed in Code of Civil Procedure section 384. Fletcher, supra, 23 Cal.3d 442, does not suggest otherwise. Fletcher was an action brought under section 17500, banning falseor deceptive advertising, and section 17535. The plaintiff, a borrower, alleged that a banking industry practice of computing intereston the basis of a 360-day year constituted an unfair trade practice. The principal issue in Fletcher was whether the trial court had abused its discretion in ruling that the action could not bemaintained as a class action because individual issues – whether each individual claimant was aware of the fraud – predominatedover common questions. We distinguished a UCL claim from claims based on breach of contract or fraud, and held that once anunfair trade practice was established, a class action could proceed without individualized proof of lack of knowledge of the fraud.The court concluded that the language of section 17535 reflected legislative intent “to vest the trial court with broad authority tofashion a remedy that would effectively ‘ prevent the use . . . of any practices which violate [the] chapter [proscribing unfair tradepractices]‘ and deter the defendant, and similar entities, from engaging in such practices in the future. The requirement that awrongdoing entity disgorge improperly obtained moneys surely serves as the prescribed strong deterrent.” (Fletcher, supra, 23Cal.3d at p. 450.) Rejecting a claim that the statutory authority to make orders necessary to restore money “which may have been acquired”through an unlawful practice required proof of each transaction in order to determine that each claimant had been defrauded, wealso held that section 17535 authorized a court to order restitution without showing the individual’ s lack of knowledge of thefraudulent practice in each transaction. (Fletcher, supra, 23 Cal.3d at pp. 450, 452.) We had no occasion to consider whether anorder for disgorgement into a fluid recovery fund was authorized by section 17203. As noted earlier, fluid recovery in a class action was approved by the Court of Appeal in Bruno v. Superior Court, supra, 127Cal.App.3d 120, a private antitrust class action brought to recover damages for excessive milk prices. There the court cautionedthat the law under which a damage action is brought might preclude fluid recovery (id. at p. 130), but held that the Cartwright Actdid allow that remedy. The court rejected an argument that section 16750, subdivision (a), precluded fluid recovery because thelaw authorized a person injured by reason of a forbidden practice to sue for and recover only the damages that person sufferedand fluid recovery would permit recovery by persons who had not sustained damages. Reasoning that damages are recovered bythe recovery of a judgment, not through subsequent distribution of the money, the court concluded that the only persons who wouldrecover damages were the class members in whose favor judgment was entered, i.e., the class of consumer victims. (127Cal.App.3d at p. 131.) The court also held that the antitrust law did not reflect an intent that no damages could be recoveredexcept those to be distributed to the persons injured and found legislative sanction for fluid recovery in section 16760, subdivision(c), which governed distribution of damages recovered in parens patriae actions brought by the Attorney General. Section 16760provides for escheat to the state of any residue after individual claims, costs, and attorney fees were satisfied, and thus sanctionsone form of fluid recovery. In State of California v. Levi Strauss & Co., supra, 41 Cal.3d 460 (Levi Strauss), [FOOTNOTE 17] in which this courtapproved fluid recovery in class actions, the Attorney General had sued the defendant clothing manufacturer on behalf of the stateand consumers who allegedly had been overcharged for jeans in violation of the Cartwright Act. (� 16700 et seq.) Pursuant to thesettlement consumers were to be notified of their right to claim a refund from a $12.5 million settlement fund. The issue addressedby this court was how the residue remaining after costs of distribution, attorney fees, and individual claims were paid. Theappellant, an intervener, and amici curiae proposed establishment of a consumer trust fund. This court first cautioned that “[t]he propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling thepurposes of the underlying cause of action. [Citations.] Fluid recovery may be essential to ensure that the policies of disgorgementor deterrence are realized. [Citation.] Without fluid recovery, defendants may be permitted to retain ill gotten gains simply becausetheir conduct harmed large numbers of people in small amounts instead of small numbers of people in large amounts.” (LeviStrauss, supra, 41 Cal.3d at p. 472.) We then reviewed the various alternative means of distributing damages recovered inconsumer class actions – price rollbacks, earmarked escheat, general escheat, consumer trust fund, and division among theindividual claimants – noting that the choice was within the sound discretion of the trial court. We emphasized that, in selecting thefluid recovery procedure, a court should consider “(1) the amount of compensation provided to class members, includingnon-claiming (or ‘ silent’ ) members; (2) the proportion of class members sharing in the recovery; (3) the extent to which benefitswill ‘ spill over’ to nonclass members and the degree to which the spillover benefits will effectuate the purpose of the underlyingsubstantive law; and (4) the costs of administration.” (Id. at p. 473.) In Levi Strauss, the court held only that fluid recovery might be appropriate in a consumer class action, noting that the parties didnot dispute that fluid recovery methods could be employed in a Cartwright Act action. The issue of whether fluid recovery wasappropriate or permitted in actions other than class actions was not raised. The court next addressed the propriety of fluid recovery in Granberry v. Islay Investments, supra, 9 Cal.4th 738. Again thecontext was a class action and we held that fluid recovery might be appropriate. There we noted the express statutory authorityfor fluid recovery in class actions found in Code of Civil Procedure section 384. Powers, supra, 2 Cal.App.4th 330, and Parkmerced, supra, 198 Cal.App.3d 683, stand alone in approving fluid recovery in aUCL action that has not been certified as a class action. In Powers, a district attorney brought a UCL action seeking injunctiverelief, restitution, and a civil penalty on the ground that defendant violated a city ordinance by selling seven condominiumsdesignated as moderate income housing at prices exceeding those allowed by the city’ s subdivision code. The complaint soughtrestitution, an order that defendant disgorge its profits, and judgment requiring defendant to replace the lost moderate incomehousing stock. The trial court granted the injunction, but believed it lacked power to order the other remedies. The Court of Appealreversed, holding that the statutory remedies for unfair business practices contemplated the other forms of relief. It held thatsection 17203, like section 17535, authorizes orders for both restitution and disgorgement of profits, relying on Fletcher for itsconclusion that these remedies were available to the court. (Powers, supra, at p. 340.) The court read Fletcher as authorizingorders for disgorgement of profits, not recognizing that Fletcher addressed the propriety of a class action or that Fletcher involvedonly restitution, not disgorgement of profits. The court held that ordering a fluid recovery remedy was an appropriate means ofpreventing the defendant from retaining the illegal profits. (Powers, supra, at p. 343.) The Powers court relied also on Parkmerced, supra, 198 Cal.App.3d 683, where the court had affirmed a trial court judgmentordering defendant to refund security deposits to former tenants and to pay the refunds owed to tenants who could not be locatedto a residents’ association. That court found authority for the order in Code of Civil Procedure section 1519.5. That section, anescheat provision of the Unclaimed Property Law, provides for escheat to the state of any sums held by a business associationthat have been ordered refunded but remain unclaimed by the owner after one year. It also provides that nothing in the sectionshould be construed “to change the authority of a court or administrative agency to order equitable remedies.” (Code Civ. Proc., �1519.5.) The Court of Appeal read the latter provision with sections 17200 and 17203 as a grant of equitable power to remedyunlawful business practices by means other than escheat of unclaimed property to the state. (Powers, supra, 2 Cal.App.4th at p.693.) Notwithstanding the absence of legislative or other authority for the use of a fluid recovery remedy in a representative UCLaction, the Court of Appeal here concluded that such orders are within the broad equitable powers of the court when deemednecessary to deter employment of unfair practices in the future. The Legislature has authorized the court to enjoin present or proposed unfair business practices in section 17203. Orders fordisgorgement may have deterrent force beyond that of injunctions coupled with restitutionary orders and in some cases mighttherefore be deemed “necessary to prevent the use or employment . . . of any practice which constitutes unfair competition.” (�17203.) Nonetheless, reading section 17203 as permitting orders for disgorgement into a fluid recovery fund would be inconsistentwith the Legislature’ s decision to expressly authorize fluid recovery in class actions and, by providing that Consumers LegalRemedies Act (Civ. Code, � 1750 et seq.) suits on behalf of the plaintiff and other similarly situated consumers may be brought asclass actions, not representative actions, while failing to authorize fluid recovery in representative UCL actions. In sum, the Legislature has not expressly authorized monetary relief other than restitution in UCL actions, but has authorizeddisgorgement into a fluid recovery fund in class actions. Although the Legislature is well aware of the distinction between classactions and representative actions, it has not done so for representative UCL actions. Inasmuch as the Legislature has spoken, anyfurther extension of the fluid recovery remedy should come from the Legislature, not, as the dissent argues, from this court.Therefore, we decline to read the grant of equitable power in section 17203 as encompassing the authority to fashion a fluidrecovery remedy when the action has not been certified as class action. We cannot conclude that this is a proper exercise of thecourt’s inherent equitable powers. Moreover, allowing fluid recovery in representative UCL actions might implicate the dueprocess concerns raised by defendants here and noted by the Court of Appeal in Bronco Wine Co., supra, 214 Cal.App.3d atpage 717. In addition, because a representative UCL action is not subject to the same level of judicial supervision as a class action,a UCL action seeking disgorgement into a fluid recovery fund on behalf of absent persons may not, in fact, serve the public. For all of these reasons we conclude that section 17203 does not authorize orders for disgorgement into a fluid recovery fund. To the extent that the trial court ordered defendants to make any refunds other than to refund moneys to tenants and formertenants, the award was not authorized by the UCL and was not a permissible exercise of the court’s equitable powers. Thejudgment of the trial court for disgorgement of sums collected to secure liquidated damages may be enforced only to the extentthat it compels restitution to those former tenants who timely appear to collect restitution. This does not mean, as the dissentasserts, that defendants may retain the funds improperly taken from their former tenants as liquidated damages. On remand thetrial court should order defendants to identify, locate, and repay to each former tenant charged liquidated damages the full amountof funds improperly acquired from that tenant, retaining the power to supervise defendants’ efforts to ensure that all reasonablemeans are used to comply with the court’s directives. [FOOTNOTE 18] If defendants have already made restitution to any claimant, defendants may introduce evidence of prior payment and need notpay any tenant twice, thus alleviating the due process concerns of defendants. As a practical matter the likelihood that any formertenants could successfully overcome a statute of limitations barrier and separately recover judgment against defendants is tooremote to establish any denial of due process in these proceedings. In light of this conclusion, we need not address defendants’due-process-based argument that UCL defendants must be accorded the protections against multiple suits and duplicative liability,protections available only in a class action. There has been no prejudice to defendants since, as we conclude below, that part ofthe judgment ordering restitution of the TIER fees must be reversed and the order for disgorgement of the liquidateddamages/security fees may be enforced only to the extent that it compels restitution to former tenants. We note, moreover, that, because a UCL action is one in equity, in any case in which a defendant can demonstrate a potential forharm or show that the action is not one brought by a competent plaintiff for the benefit of injured parties, the court may decline toentertain the action as a representative suit. (Fletcher, supra, 23 Cal.3d at p. 454.) If the possibility of future suits exists, it maybe appropriate for the court to condition payment of restitution to beneficiaries of a representative UCL action on execution ofacknowledgment that the payment is in full settlement of claims against the defendant, thereby avoiding any potential for repetitivesuits on behalf of the same persons or dual liability to them. IV CIVIL CODE SECTION 1950.5 AND DEFENDANTS’ TIER FEES Defendants contend that the TIER fee is not an unrefundable security fee prohibited by Civil Code section 1950.5. Civil Codesection 1950.5 now provides in relevant part: “(a) This section applies to security for a rental agreement for residential property that is used as the dwelling of the tenant. “(b) As used in this section, ‘ security’ means any payment, fee, deposit or charge, including, but not limited to, an advancepayment of rent, used or to be used for any purpose, including, but not limited to, any of the following: “(1) The compensation of a landlord for a tenant’ s default in the payment of rent. “(2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee ofthe tenant. “(3) The cleaning of the premises upon termination of the tenancy. “(4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personalproperty or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by therental agreement.” Subdivision (e) provides that “[t]he landlord may claim of the security only those amounts as reasonably necessary for thepurposes specified in subdivision (b). The landlord may not assert a claim against the tenant or the security for damages to thepremises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether thewear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tearoccurring during any one or more tenancies.” When Civil Code section 1950.5 was enacted in 1977 and until a 1986 amendment (Stats. 1986, ch. 564, � 1, p. 1991), subdivision(e) limited use of a security fee to “such amounts as are reasonably necessary to remedy tenant defaults in the payment of rent, torepair damages to the premises caused by the tenant, exclusive of ordinary wear and tear, or to clean such premises, if necessary,upon termination of the tenancy.” The $100 TIER fee was collected from every new tenant by Trinity Management Services, Inc. The fee is usually collectedwhen the tenant signs a standard form lease. The lease imposes an obligation to pay the fee before occupying the premises. Uponpayment the tenant receives a “Receipt and Agreement for Tenancy Initiation Expense Reimbursement” from the landlord. Unlike the Court of Appeal here and in Parkmerced, we do not find subdivision (e) of Civil Code section 1950.5, which specifiesthe uses to which a security may be put by a landlord useful in determining whether the TIER fee is a security. Subdivision (b) (setout, ante) defines the term and, while it provides that its examples of securities is not exclusive, it supports a conclusion that asecurity fee paid by a tenant to a landlord is an amount intended to offset expenses incurred by the landlord as a result of tenantconduct during the tenancy. It does not encompass the TIER fee that the trial court included in the restitution order madehere. [FOOTNOTE 19] We begin, as we must, with the term “security.” “We interpret statutory language according to its usual and ordinary import,keeping in mind the apparent purpose of the statute. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d1379, 1386-1387.) When no ambiguity appears, we give statutory terms their plain meaning. (People v. Coronado (1995) 12Cal.4th 145, 151.)” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493.) Excluding meanings for the noun “security” that are irrelevant in this context, the term means “something given, deposited, orpledged to make certain the fulfillment of an obligation.” (Webster’ s 9th New Collegiate Dict. (1989) p. 1062.) Every example ofa security given in subdivision (b) of Civil Code section 1950.5, is consistent with this ordinary meaning of the word. The parties and the Parkmerced court assume that because the TIER charge is a fee it must be a “security” within the definitionof security given in subdivision (b) of Civil Code section 1950.5. It is apparent, however, that the Legislature included the terms”payment, fee, deposit or charge” in the definition to ensure that a landlord would not be able to use those or similar terms ratherthan “security” for a charge and thereby avoid the prohibition of nonrefundable securities and the limits placed on the use of asecurity by that statute. Application of the principle of ejusdem generis and consideration of the remainder of the statute compelsthat conclusion. “Ejusdem generis applies whether specific words follow general words in a statute or vice versa. In either event, the generalterm or category is ‘ restricted to those things that are similar to those which are enumerated specifically.’ “(Harris v. CapitalGrowth Investors XIV (1991) 52 Cal.3d 1142, 1160, fn. 7.) The canon presumes that if the Legislature intends a general word tobe used in its unrestricted sense, it does not also offer as examples peculiar things or classes of things since those descriptions thenwould be surplusage. (See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331, fn.10.) All of the examples of a security set forth in subdivision (b) of Civil Code section 1950.5 are charges intended to secure thelandlord against future tenant defaults. Subdivision (e) specifies the only uses to which such fees may be put by the landlord, againconfirming that the “fee, deposit, or charge” which may be a security within the subdivision (b) definition is one held by the landlordto ensure reimbursement for future tenant defaults. This is confirmed by section 1950.5, subdivision (d), which provides that thelandlord holds a security for the tenant, by subdivision (f), which imposes a duty on the landlord to notify a tenant who has vacatedthe premises of the amount and disposition of the security and to return any remaining portion, and by subdivision (l), whichprohibits a nonrefundable security. Reading the statute as a whole thus confirms that even though a security is not limited to the examples set out in subdivision (b) ofCivil Code section 1950.5, a security is limited to charges imposed to secure the landlord against future tenant defaults. A feeimposed at the outset of the tenancy to reimburse the landlord for expenses incurred for such purposes as providing applicationforms, listing, interviewing, screening the applicant, for checking credit references, and for similar purposes is not a securitygoverned by the provisions of that section. [FOOTNOTE 20] V DISPOSITION The judgment of the Court of Appeal is reversed and the matter is remanded for further proceedings consistent with this opinion. BAXTER, J. WE CONCUR: GEORGE, C.J., MOSK, J., CHIN, J., BROWN, J. CONCURRING OPINION BY KENNARD, J. I concur in the majority opinion except for the following dictum discussing restitution by a defendant to nonparties in an actionunder Business and Professions Code section 17200 et seq., the unfair competition law (UCL): “If the possibility of future suitsexists, it may be appropriate for the court to condition payment of restitution to [nonparty] beneficiaries of a representative UCLaction on execution of acknowledgment that the payment is in full settlement of claims against the defendant, thereby avoiding anypotential for repetitive suits on behalf of the same persons or dual liability to them.” (Maj. opn., ante, at p. 25.) The majority’ s statement is dictum because, as the majority elsewhere recognizes (maj. opn., ante, at p. 24), there is no realisticpossibility of repetitive suits by nonparties in this case. Its statement is imprudent because such details of case management arebest left to the trial court and the parties in the first instance, rather than to an appellate court with its limited ability to foresee thecourse of future litigation and to create remedies in the abstract for potential problems that might or might not arise. Mostimportantly, the majority’ s proposal that a nonparty must give up whatever other non-UCL claims it may have in order to receiverestitution for its UCL claims is on its merits dubious and unnecessary. No question of dual liability would arise from permitting anonparty to receive UCL restitution in the first action and to bring a subsequent action on its non-UCL claims: to the extent UCLrestitution already paid overlaps with damages suffered as a result of the non-UCL claims, the defendant would be entitled tocredit in the subsequent action for the restitution already paid, just as it would be entitled to credit if the UCL and non-UCL claimswere brought in a single action. Moreover, if a nonparty were required to bring a separate action on both its UCL and non-UCLclaims to preserve its non-UCL claims, the nonparty could in the separate action prevent the defendant from contesting the meritsof the UCL claim by invoking collateral estoppel, making defendant’ s liability a foregone conclusion and the relitigation of theUCL claim a wasteful and pointless exercise. KENNARD, J. CONCURRING AND DISSENTING OPINION BY WERDEGAR, J. I agree with the majority that Civil Code section 1950.5 does not apply to defendant landlords’ nonrefundable security andadministrative fees. (Maj. opn., ante, at pp. 1-2, 26-30.) I also agree that defendants have not been denied due process (id. at p.2) and that the remedial order in this case, understood as foreclosing the possibility of double recovery by accommodating anyevidence of prior payment, does not raise due process concerns (id. at p. 25). I dissent, however, from the majority opinion to theextent it holds the unfair competition law, Business and Professions Code [FOOTNOTE 1*] section 17200 et seq. (UCL), does notpermit the trial court’s order that defendants disgorge the proceeds of their illegal acts into a trust fund for the benefit ofresidential tenants in the affected jurisdiction, generally, as well as defendants’ identifiable direct victims. (Maj. opn., ante, at pp. 1,8-25.) Reversing a unanimous Court of Appeal, the majority reasons, essentially, that “fluid recovery” is not authorized as a remedy inprivate UCL actions because it is authorized in class actions. I cannot join in such fallacious reasoning. The majority’ s conclusion,without support in the UCL’ s plain language, flies in the face of our previous pronouncements and lower court decisions in whichthe Legislature has for decades acquiesced. With its decision, the majority today permits the landlord defendants in this case toretain nearly half a million dollars in illegal gains from unfair competition, while significantly diminishing consumers’ equitable andstatutory protections against unfair business practices. This result is contrary to the legislative history, the language and the spirit ofthe UCL. Background The trial court found that defendants, large residential landlords, for many years engaged in unfair and unlawful business practicesby charging tenants in their approximately 2,000 San Francisco apartments fees and deposits that violated Civil Code sections1950.5 (security for residential rentals) and 1671 (liquidated damages). These illegal business practices, the court found, “havebeen systematically carried out by [defendants] for many years, beginning well before April 1, 1990 and continuing unabated sincethen.” Among other things, the trial court specifically found that, within the applicable four-year limitations period, defendantsobtained illegal liquidated damages-sometimes as “security deposits” -in an average amount of $700 per tenant. The trial court’s remedial order permanently enjoined defendants from continuing their illegal practices. The trial court alsoordered defendants to pay specific restitution, including restitution for illegal liquidated damages, in various amounts to variousnamed plaintiffs. Additionally, the trial court ordered defendants to disgorge, to identifiable present and former tenants “who may,with due diligence, be found” and then to a trust fund, the proceeds of their illegal acts, including $448,000 corresponding tounlawful liquidated damages (plus interest). Finally, the court’s order provides that any amounts paid as restitution to identifiedclaimants shall be deducted from amounts required to be disgorged to the trust fund. The trial court’s order also provides that the trust fund created by defendants’ disgorgement shall be administered “for thepurpose of providing financial assistance for the advancement of legal rights and interests of residential tenants in the City andCounty of San Francisco.” The trust fund is to be administered for the court by three trustees, one appointed by the San FranciscoDistrict Attorney, one by the Executive Director of the Bar Association of San Francisco, and the third by the other two. The trialcourt expressly retained jurisdiction over the parties and the subject matter “for the purpose of further proceedings to secureimplementation and enforcement of the remedial and injunctive provisions of this judgment” and provided that “[t]he specificcharter for the trust fund, as well as more specific criteria and arrangements for administering the fund and authorizingdisbursements from it, shall be approved by the Court and shall be the subject of further proceedings.” Finally, the trial court ordered defendants to provide “written or published notice of this judgment, in a form and manner to beapproved by the Court, to all current tenants and former tenants who rented and occupied defendants’ apartments from or afterApril 6, 1990.” A unanimous Court of Appeal affirmed the trial court’s judgment. Discussion The majority does not dispute that defendants violated Civil Code section 1671 and the UCL by requiring tenants to pay illegalliquidated damages. Nor does the majority criticize the trial court’s computations resulting in the corresponding disgorgementorder. The majority holds, however, that the judgment of the trial court for disgorgement of sums collected to secure liquidateddamages “may be enforced only to the extent that it compels restitution to those former tenants who timely appear to collectrestitution.” (Maj. opn., ante, at p. 24.) In support, the majority asserts that, to the extent the trial court ordered disgorgement to afund benefiting San Francisco tenants, generally, “the award was not authorized by the UCL and was not a permissible exercise ofthe court’s equitable powers.” (Ibid.) For the following reasons, I disagree. The UCL’ s language As the majority acknowledges, section 17203 “grants the court the power to make orders necessary to prevent the use of unfairbusiness practices.” (Maj. opn., ante, at p. 12.) Specifically, section 17203 expressly authorizes courts to “make such orders orjudgments . . . as may be necessary to prevent the use or employment by any person of any practice which constitutes unfaircompetition, as defined in [the UCL], or as may be necessary to restore to any person in interest any money or property, real orpersonal, which may have been acquired by means of such unfair competition.” In my view, this language plainly authorizes thetrial court’s order in two ways-both as “necessary to prevent the use or employment” of unfair competition and as “necessary torestore to . . . person[s] in interest . . . money . . . which [defendants] . . . acquired by” unfair competition. As it did in other parts of the UCL, the Legislature used the disjunctive in section 17203, authorizing orders “necessary to prevent. . . unfair competition . . . or as may be necessary to restore to any person in interest any money or property” (italics added),expressly thereby articulating two broad categories of permissible UCL remedies. Orders necessary to “prevent” future unfaircompetition and orders necessary to “restore” proceeds of past unfair competition are both authorized. (See Stop Youth Addiction,Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561 (Stop Youth Addiction) [Legislature' s use in section 17204 of thedisjunctive when listing the entities empowered to bring UCL actions for relief "plainly suggests it meant to designate such entitiesin the alternative" ]; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [as "'section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful,or unfair, or fraudulent' "]; see generally Reiter v. Sonotone Corp. (1979) 442 U.S. 330, 339 [canons of statutory construction"ordinarily suggest that terms connected by a disjunctive be given separate meanings" ].) The trial court’s remedial order in this case amply satisfies each of section 17203′ s alternative remedial categories. The trial court’s order is “necessary to prevent” future unfair competition because, as we have recognized, an “‘ injunction againstfuture violations, while of some deterrent force, is only a partial remedy’ “(Fletcher v. Security Pacific National Bank (1979) 23Cal.3d 442, 451 (Fletcher)). Permitting defendants to retain any portion of their illicit profits would “‘ impair the full impact of thedeterrent force that is essential if adequate enforcement’ “of the UCL is to be achieved. (Ibid.) In fact, the trial court’s orderwould seem crafted for maximum preventive impact-directing, as it does, both that defendants fully disgorge the proceeds of theirillegal acts and that any disgorged funds not returnable to defendants’ reasonably identifiable direct victims be devoted, in trust andon appropriate terms, to the maintenance and defense of the legal rights and interests of the jurisdiction’ s residential tenants. (SeeState of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 474 (Levi Strauss) [Under one form of fluid recovery,"uncollected funds are disbursed to a responsible governmental organization for use on projects that benefit noncollecting classmembers and promote the purposes of the underlying cause of action." ].) The trial court’s order also is “necessary to restore” the proceeds of defendants’ illegal acts to appropriate interested persons, i.e.,defendants’ present and former tenants, and tenants in the affected jurisdiction or their advocates. (See Levi Strauss, supra, 41Cal.3d at p. 474; Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 773 [court in a UCL suit "isempowered to grant equitable relief, including restitution in favor of absent persons" ]; People v. Thomas Shelton Powers, M.D.,Inc. (1992) 2 Cal.App.4th 330, 343 (Powers) [where compensating a direct victim is not possible, "the theory of fluid recoverypermits an award of the funds to an interested third party" ]; People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal.App.3d683, 693 (Parkmerced) [nonparty residents' organization with "vested interest" in outcome was appropriate recipient of unclaimedremedial refunds in action to recover illegal rental fees].) In creating a tenants’ trust fund as a repository permitting full disgorgement to interested parties of defendants’ illegal gains, thetrial court invoked the concept of “fluid recovery” ; it is this fluid recovery aspect of the trial court’s order to which the majorityobjects. But “fluid recovery,” as the majority acknowledges, is simply a term California courts have sometimes adopted whenreferring to “the application of the equitable doctrine of cy pres in the context of a modern class action.” (Maj. opn., ante, at p. 9;accord, Levi Strauss, supra, 41 Cal.3d at p. 472.) Interchangeably, we have used the term “fluid distribution.” (See Levi Strauss,supra, at p. 474.) The cy pr�a s doctrine originated in the common law of charitable trusts; “Where compliance with the literal terms of a charitabletrust became impossible, the funds would be put to ‘ the next best use,’ in accord with the dominant charitable purposes of thedonor.” (Levi Strauss, supra, 41 Cal.3d at p. 472, citing Estate of Tarrant (1951) 38 Cal.2d 42, 49.) For over a century,California courts have applied the cy pr�a s doctrine to achieve remedial equity in a variety of contexts. (See, e.g., Estate ofHinckley (1881) 58 Cal. 457, 512 [declaring that "in the general devolution upon the Courts of this State of all judicial power, withrespect to charities, is included in the power cy pres" ]; Estate of Tarrant, supra, at p. 49 [gift earmarked for nonexistentrailway pension fund directed under cy pr�a s to nonprofit corporation benefiting railway employees]; In re Morse (1995) 11Cal.4th 184, 210-212 [ordering that attorney who mass-mailed misleading advertisements about homesteading pay $170,000 "cypr�a s restitution" to consumer protection prosecution trust fund].) Amicus curiae, the California District Attorneys Association (District Attorneys), a statewide organization comprised of publicofficers charged with enforcing the UCL, explains that California courts for many years have used the cy pr�a s concept inordering disgorgement of unlawfully obtained funds where direct compensation of victims cannot practically be effected. Taking aposition diametrically opposed to the majority, the District Attorneys state that barring fluid disgorgement in private, uncertifiedUCL actions (as the majority does today) will undermine the UCL’ s function as “an efficient alternative to class actions as ameans of addressing unlawful conduct through equitable remedies.” As public prosecutors, the District Attorneys emphasize thatprivate UCL enforcement is a vital supplement to their efforts against illegal business practices in this state. Under existing precedent, the District Attorneys note, courts have discretion to require class-action-like procedures in particularUCL matters, although they are not required to do so. (See generally Fletcher, supra, 23 Cal.3d at p. 454; see also Caro v.Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 660-661.) UCL actions often are formally incompatible with class treatment,as class plaintiffs must be “truly representative of the absent, unnamed class members” (Bartlett v. Hawaiian Village, Inc. (1978)87 Cal.App.3d 435, 438) while, in keeping with the UCL’ s broad remedial purposes, a private party has UCL standing regardlessof whether he or she is directly aggrieved. (Stop Youth Addiction, supra, 17 Cal.4th at pp. 560-561; Committee on Children’ sTelevision, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211, 215 (Children’ s Television).) The District Attorneys,therefore, quite understandably oppose any rigid restriction on fluid recovery such as the majority announces today, because sucha restriction will severely limit the remedies available in a critical class of UCL actions-those brought by personally unaggrievedplaintiffs. Although this is not a publicly prosecuted UCL action and the majority does not state it would bar cy pr�a s or fluid recovery insuch actions, one implication of the majority’ s construction of the UCL is to call into question the basis for these remedies in UCLactions generally. As the District Attorneys point out, section 17203, in describing permissible UCL remedies, draws no distinctionbetween public and private actions. The District Attorneys emphasize, moreover, that complete disgorgement is a commonremedial goal in publicly prosecuted UCL actions, as well as in private actions. In expressly construing the UCL to ban fluidrecovery in private, uncertified UCL actions, therefore, the majority must accept responsibility for articulating a rationale thatthreatens to undermine public prosecutorial prerogatives as well. I agree with the District Attorneys that we should retain a flexible construction of section 17203, permitting trial courts tocountenance the full range of equitable and statutory UCL remedies, including in appropriate cases cy pr�a s fluid recovery, evenabsent class certification. The District Attorneys amply demonstrate that the deterrent effect of private UCL actions is anessential component of California’ s scheme for combating unfair competition. And, as we have understood for over 20 years,obtaining “‘ the full impact of the deterrent force [of UCL remedies] is essential if adequate enforcement [of the law] is to beachieved. One requirement of such enforcement is a basic policy that those who have engaged in proscribed conduct surrender allprofits flowing therefrom.’ “(Fletcher, supra, 23 Cal.3d at p. 451, first brackets added; see also Bank of the West v. SuperiorCourt (1992) 2 Cal.4th 1254, 1267, superseded by statute on another point [Legislature considered UCL deterrence "so importantthat it authorized courts to order restitution without individualized proof of deception, reliance, and injury" ].) Contrary to the majority’ s apparent implication (see maj. opn., ante, at p. 9 & fn. 11), nothing in section 17203-or anywhere elsein the UCL-suggests the Legislature’ s use of the phrase “any person in interest” (� 17203) was intended to restrict a court’sinherent equitable powers when crafting UCL remedies. As the majority points out, this language originated in the 1972amendments to section 17535 and subsequently was added to the UCL. (Maj. opn., ante, at p. 15.) We previously have noted that”whenever the Legislature has acted to amend the UCL, it has done so only to expand its scope, never to narrow it.” (Stop YouthAddiction, supra, 17 Cal.4th at p. 570.) In describing one category of permissible UCL remedies, section 17203 refers genericallyto orders “necessary to restore” unfair competition proceeds, but notably does not employ the more specific term, “restitution.”Thus, as the majority recognizes, an order that a defendant disgorge money obtained through an unfair business practice “mayinclude a restitutionary element, but is not so limited.” (Maj. opn., ante, at p. 10.) Nor, contrary to the majority’ s apparent implication, does any statutory language constrict the UCL’ s “restorative” prong to”persons who had an ownership interest in the property.” (Maj. opn., ante, at p. 9.) The majority cites several statutes, apparentlymeaning to suggest they illustrate the Legislature’ s use of the phrase “person in interest” in section 17203 was intended to limitUCL “restor[ation]” to direct return of ownership interests to identifiable owners. (See maj. opn., ante, at p. 9, fn. 11, citing �17535 [false advertising remedies]; � 19214 [substandard insulation remedies]; Code Civ. Proc., � 873.810 [disbursement ofpartition sale proceeds]; id., � 1235.125 [eminent domain]; Pub. Resources Code, � 25966 [gas appliance ignition devices].) None of the majority’ s cited statutes mentions the UCL or otherwise supports any narrowing of Business and Professions Codesection 17203. In fact, we long ago construed the relevant language contrary to the majority’ s implication. (See, e.g., Children’ sTelevision, supra, 35 Cal.3d at p. 211 [if necessary for deterrence under � � 17203 or 17535, a "court may also order restitutionwithout individualized proof of . . . injury" ].) Business and Professions Code sections 17535 and 19214 and Public ResourcesCode section 25966 use broad remedial language substantially identical to that used in section 17203, but do not contain anyqualifying language or provision supporting a narrow construction of that language, let alone the particular narrow construction atwhich the majority hints. Code of Civil Procedure sections 873.810 (partition of real property) and 1235.125 (defining “interest” inproperty as “right, title, or estate” ) each use the word “interest,” but neither contains anything that suggests the Legislature meantto refer to interests outside those specialized statutory schemes. Code of Civil Procedure section 1235.125, in fact, is qualifiedexpressly by a proviso that, unless the provision or context otherwise requires, “these definitions govern the construction of thistitle” (Code Civ. Proc., � 1235.110), i.e., the eminent domain law. One Court of Appeal has remarked that it is “significant that the Legislature chose to use the word ‘ restore’ in labeling that whichan offending defendant may be ordered to do” (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 338), as the choice indicatessections 17203 and 17535 do not contemplate purely punitive monetary sanctions. (See generally Day, supra, at pp. 338-339.)Even so, the same court recognized that these statutes and the cases construing them “allow[] for a fluid recovery, as opposed to arestoration to identified individuals or classes, [if] the amount being restored [is] objectively measurable as that amount which thedefendant would not have received but for the unfairly competitive practice.” (Id. at p. 339, italics added; Levi Strauss, supra,41 Cal.3d 460; Parkmerced, supra, 198 Cal.App.3d 683.) The majority does not dispute that the amounts the trial court ordereddisgorged in this case are objectively measurable as those that defendants would not have received but for their unfair practices. Nor is the majority correct in assuming that, as a policy matter, “[w]hen restitution is made to a person in interest, fluid recovery isunnecessary.” (Maj. opn., ante, at p. 12.) Appropriate interested parties may not be individually identifiable, or identifiable at thetime disgorgement is ordered. (See, e.g., Parkmerced, supra, 198 Cal.App.3d at p. 693; Powers, supra, 2 Cal.App.4th at p.343.) It is neither possible nor desirable that we attempt to prescribe in advance all of the circumstances that might justifydesignating appropriate interested parties by class or description. Rather, as an equitable device, “‘ [t]he propriety of FluidRecovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action.’ “(Granberryv. Islay Investments (1995) 9 Cal.4th 738, 750.) The majority also seems to suggest that, simply in specifying the remedy or relief available, section 17203 “thereby limit[s] theextent of equitable relief” courts may grant in UCL actions. (Maj. opn., ante, at p. 14, fn. 14.) Exactly what the majority meanshere by the “extent” of equitable relief is difficult to discern, but, in any event, the majority offers no authority for its novelsuggestion. The majority also fails to explain how the Legislature’ s express authorization of “such orders . . . as may benecessary” (� 17203) to deter unfair competition or restore its proceeds can, either linguistically or logically, be construed as a limiton courts’ inherent equitable powers. “[W]hen the Legislature has desired to limit UCL remedies, it has ‘ expressly provided’ (�17205) for such limitation” (Stop Youth Addiction, supra, 17 Cal.4th at p. 573), but section 17203 contains no such express limit.Nor does the UCL or any other statute contain an express limitation on cy pr�a s or fluid recovery. To the contrary, “theLegislature has clearly stated its intent that the remedies and penalties under the [UCL] are cumulative to other remedies andpenalties.” (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 284, citing � 17205.) As we previously have observed, “it is unlikely the Legislature, in providing courts with broad equitable powers to remedyviolations under section 17203, intended those powers be limited in an illogical, unfair and counterproductive manner.” (ABCInternat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1270 (ABC).) Section 17203 does not “restrict thecourt’s general equity jurisdiction ‘ in so many words, or by a necessary or inescapable inference.’ “(People v. Superior Court(Jayhill Corp.) (1973) 9 Cal.3d 283, 286 (Jayhill) [discussing � 17535].) “In the absence of such a restriction a court of equitymay exercise the full range of its inherent powers in order to accomplish complete justice between the parties, restoring ifnecessary the status quo ante as nearly as may be achieved.” (Ibid.) Thus, as we held in Fletcher, supra, 23 Cal.3d 442, which addressed the court’s power to order restitution for false advertisingunder section 17535, and confirmed in Children’ s Television, supra, 35 Cal.3d 197, with regard to the substantially identicalwording of section 17203, when seeking restitution on behalf of absent third parties, individualized proof of the injury to thoseabsent persons is not required “if the court determines that such a remedy is necessary ‘ to prevent the use or employment’ of theunfair practice” (Fletcher, supra, at p. 453; see also Children’ s Television, supra, at p. 211). After all, in describing permissible UCL remedies, the Legislature emphasized not what may have been taken from victims ofunfair competition, but what “money or property . . . may have been acquired by” (� 17203, italics added) UCL violators. Such anemphasis suggests the Legislature intended that courts in UCL actions retain sufficient remedial flexibility to achieve completedisgorgement of unfair competition proceeds. In light of our previous pronouncements, the Court of Appeal unanimously soconcluded, and I agree. As we recently reaffirmed, under the UCL “as construed by this court and the Courts of Appeal, ‘ a private plaintiff who hashimself suffered no injury at all may sue to obtain relief for others.’ “(Stop Youth Addiction, supra, 17 Cal.4th at p. 561.) In myview, the UCL is clear and unambiguous in authorizing “any person” (� 17204) to seek UCL remedies benefiting others, includingany “orders or judgments . . . as may be necessary” (� 17203) to deter unfair competition or restore its proceeds to interestedpersons. The trial court’s order in this case falls well within the plain language of these statutes. As the “plain language of thestatute establishes what was intended by the Legislature,” further judicial construction is not necessary to decide the case, and we”should not indulge in it.” (People v. Fuhrman (1997) 16 Cal.4th 930, 937.) Legislative history Even while acknowledging its consonance with section 17203′ s plain language, the majority largely invalidates the trial court’sremedial order in this case, asserting that “permitting orders for disgorgement into a fluid recovery fund in UCL actions would beinconsistent with the Legislature’ s decision to expressly authorize fluid recovery in class actions and, by providing that ConsumersLegal Remedies Act (Civ. Code, � 1750 et seq.) suits on behalf of the plaintiff and other similarly situated consumers may bebrought as class actions, while failing to authorize fluid recovery in representative UCL actions.” (Maj. opn., ante, at p. 23; seealso id. at p. 16, citing Code Civ. Proc., � 384.) Any validity to the majority’ s legislative history argument is not self-evident, as there would be nothing logically inconsistent withthe Legislature’ s intending, or our construing, the separate schemes governing class action residuals and disgorged unfaircompetition proceeds each to permit fluid recovery, or a cy pr�a s remedy. (Compare Code Civ. Proc., � 384, subd. (a)[Legislature' s intent is that unpaid class action residuals shall be "distributed, to the extent possible, in a manner designed either tofurther the purposes of the underlying causes of action, or to promote justice for all Californians" ] with Bus. & Prof. Code, �17203 [authorizing "such orders or judgments" as "may be necessary" to deter unfair competition or to restore its proceeds tointerested persons].) Moreover, the premises of the majority’ s legislative history argument are flawed. First, the majority speaks of Code of CivilProcedure section 384 as having been enacted to “expressly authorize fluid recovery in class actions” (maj. opn., ante, at p. 16),but section 384 does not use the term “fluid recovery” at all. Rather, as noted, section 384 authorizes disbursement of class actionresiduals “in any manner the court determines is consistent with the objectives and purposes of the underlying cause of action.” (�384, subd. (b).) Second, the majority accurately describes the Legislature as providing that certain Consumers Legal RemediesAct (CLRA) suits “may be brought as class actions” (maj. opn., ante, at p. 23, italics added), thus conceding the CLRA containsno requirement of class treatment. The CLRA provides that any consumer entitled to bring a CLRA action “may, if the unlawfulmethod, act, or practice has caused damage to other consumers similarly situated,” seek the court’s permission to proceed onbehalf of a class. (Civ. Code, � 1781, subd. (a).) The CLRA directs courts to permit class treatment only “if all of [certain listed]conditions exist.” (Civ. Code, � 1781, subd. (b) [listing traditional class action prerequisites].) That the Legislature hasneither required class treatment of CLRA actions, nor specifically limited cy pr�a s or “fluid recovery” to class actions, fatallyundermines the majority’ s legislative history argument to the extent it is premised on the contrary assumptions. The majority’ s own authorities refute its legislative history argument. The Legislature stated when enacting the CLRA in 1970that “[t]he provisions of this title are not exclusive” and “[t]he remedies provided . . . shall be in addition to any other procedures orremedies provided for in any other law.” (Stats. 1970, ch. 1550, � 1, p. 3157; as amended, see now Civ. Code, � 1752.) In 1975amendments, the Legislature clarified that, “[i]f any act or practice proscribed under [the CLRA] also constitutes a cause of actionin common law or a violation of another statute, the consumer may assert such common law or statutory cause[s] of action underthe procedures and with the remedies provided for in such law.” (Stats. 1975, ch. 615, � 1, p. 1344; now Civ. Code, � 1752.) Itfollows that, contrary to the core rationale of the majority’ s legislative history argument, the Legislature did not intend, either whenenacting or amending the CLRA, to displace cy pr�a s, fluid recovery, or any other statutory or common law procedure or remedyavailable in unfair competition actions. In fact, all three of the statutes on which the majority relies for its core “inconsistency” rationale (see maj. opn., ante, at p. 23)provide that their remedies are cumulative and do not displace others. First, the UCL states unambiguously that, “[u]nlessotherwise expressly provided, the remedies or penalties provided by [the UCL] are cumulative to each other and to the remediesor penalties available under all other laws of this state.” (� 17205.) [FOOTNOTE 2*] Second, as just discussed in detail, the CLRAsweepingly declares its provisions are “not exclusive” and are “in addition to any other procedures or remedies” in “any other law.”(Civ. Code, � 1752.) Finally, albeit somewhat less broadly, Code of Civil Procedure section 384 declares it “shall not be construedto abrogate any equitable cy pres remedy which may be available in any class action with regard to all or part of the residue.”(Code Civ. Proc., � 384, subd. (d).) [FOOTNOTE 3*] Thus, the majority’ s attempt to justify its ipse dixit ban on UCL fluidrecovery on the ground that the CLRA and Code of Civil Procedure section 384 somehow displace a court’s traditional cy pr�a sor “fluid recovery” authority in the UCL context simply cannot be reconciled with the plain language of those statutes. Finally, the majority’ s legislative history argument is contrary to the history of both the fluid recovery remedial device and that ofthe UCL. The majority asserts that “[f]luid recovery in class actions was not authorized in this state until 1981″ (maj. opn., ante, at p. 17,citing Bruno v. Superior Court (1981) 127 Cal.App.3d 120), but even if correct that is beside the point, where the isssue is thevalidity of fluid recovery in nonclass UCL actions. As discussed, “fluid recovery” is simply cy pr�a s in the context of a modernclass action (Levi Strauss, supra, 41 Cal.3d at p. 472) and, as we long have recognized, California courts’ authority to utilize cypr�a s was included ” in the general devolution upon the Courts of this State of all judicial power . . . .” (Estate of Hinckley,supra, 58 Cal. at p. 512.) Thus, California courts have utilized the common law cy pr�a s doctrine for over a century and have formany decades fashioned “ fluid” remedies, both in and out of the class action context. This court itself employed a fluid recovery device, as the majority’ s own authority notes, [FOOTNOTE 4*] as early as 1946. InMarket St. Ry. Co. v. Railroad Commission (1946) 28 Cal.2d 363 (Market St. Ry. Co.), not a class action, a fund of money wasestablished representing overcharges made by a street railway company. In staying a fare rollback ordered by the RailroadCommission, we had required the railway company to post a bond and deposit with the court certain securities against the need tomake refunds in the event that we might ultimately affirm the Railroad Commission’ s decision. When few eligible patrons filedrefund claims, we did not return the money to the railway company, but instead awarded it to the City of San Francisco which,having recently purchased the railway, would, we noted, use the funds for the benefit of railway patrons, generally. (Id. at pp.371-373.) In ordering such distribution, we invoked our “power and the responsibility of protecting the fund and of disposing of it inaccordance with the applicable principles of law and equity for the protection of the litigants and the public whose interests areaffected by the final disposition thereof.” (Id. at p. 367.) We also noted this court’s freedom, “in the discharge of that duty andresponsibility, to use broad discretion in the exercise of its powers so as to avoid an unlawful or unjust result.” (Ibid., citing UnitedStates v. Morgan (1939) 307 U.S. 183, 194.) In Levi Strauss, supra, 41 Cal.3d 460, we noted that Market St. Ry. Co., supra, 28Cal.2d 363, “though not a class action, provides an example” of one “form of fluid distribution” (id. at p. 474), thus recognizing thatfluid recovery, as a remedial device, is not necessarily confined to class actions. Levi Strauss itself was brought as a class action by the Attorney General on behalf of persons overcharged by a clothingmanufacturer. The parties entered into a settlement agreement that established a fund of money to be repaid to the relevantconsumers, but many did not file claims and a substantial amount of money was left after legitimate claims had been paid. Wenoted that the equitable doctrine of cy pr�a s provided a solution. After considering various forms that “fluid recovery” mighttake-including division among individual claimants, distribution to an appropriate governmental organization and the creation of aconsumer trust fund-we remanded the matter, noting that “trial courts should have the full range of alternatives at their disposal”and that “disposition of the residue on remand is a matter within the discretion of the trial court.” (Levi Strauss, supra, 41 Cal.3dat p. 479.) In Parkmerced, supra, 198 Cal.App.3d 683, a nonclass action pursuant to sections 17203 and 17206 seeking injunctive relief,civil penalties and reimbursement of illegal fees, remedial refunds due former tenants who could not be located were orderedturned over to a residents’ association. The Court of Appeal upheld the order, thus permitting both restitution to identifiable directvictims and disgorgement to an interested third party. The court declared that, while the residents’ organization was not a party, “ittook a continuing interest in the matter, assisted the district attorney in gathering pertinent information, and had a vested interest inits outcome. Refunding the unclaimed securities to the organization for its use in representing the interests of the Parkmercedtenants is an appropriate disposition of the penalty funds.” (Parkmerced, supra, at p. 693.) Applying both Market St. Ry. Co., supra, 28 Cal.2d 363, and Levi Strauss, supra, 41 Cal.3d 460, the Court of Appeal inPowers, supra, 2 Cal.App.4th 330, not a class action, held that the doctrine of fluid recovery permits a trial court in a UCL actionto require disgorgement of unfair competition proceeds to a fund benefiting “an interested third party,” there a governmental entityfunding moderate-income housing. (Id. at pp. 339-344.) The court found “nothing in logic or in law supporting a theory that awrongdoer should be entitled to retain its illegal profits simply because there is no cognizable direct victim” (id. at p. 341) andobserved section 17203 “expressly entitles a court to take such actions as may be necessary to prevent the use by any person ofany unfair business practice” (Powers, supra, at p. 340). Noting the deterrence rationale this court has discerned to underliesection 17203, the court, after reviewing fluid recovery cases, explained they “did not turn on the ability to name specific personsas victims, but on the equities of preventing the defendant from benefiting from the illegal transaction and of reversing the harm ofthe wrongful act to the greatest extent possible.” (Powers, supra, at p. 343.) At least partly on the basis of this history, it has long been regarded as settled that, under the UCL, “an individual acting forhimself or the general public may bring the action and obtain equitable relief, including restitution in favor of absent persons,without certifying a class action.” (11 Witkin, Summary of Cal. Law (1999 supp.) Equity, � 95, p. 359. [FOOTNOTE 5*] The majority asserts there is “nothing, in the legislative history of sections 17203 and 17535 to suggest that the Legislatureintended to authorize fluid recovery in representative UCL actions when it made the power to order restitution statutory” (maj.opn., ante, at p. 16), but I disagree. As discussed above, California courts’ authority to order cy pr�a s restitution (called “fluidrecovery” in the class action context) long predated the Legislature’ s 1972 amendment of section 17535 and its subsequentparallel amendment of the UCL, and the majority acknowledges “the Legislature added express power to order restitution tosection 17535 only to clarify the law.” (Maj. opn., ante, at p. 16; see also Fletcher, supra, 23 Cal.3d at p. 453, fn. 6; Jayhill,supra, 9 Cal.3d at p. 287, fn. 1 [1972 amendments to section 17535 were "simply to clarify existing law" ].) That the Legislature did not in terms discuss “disgorgement to absent parties” or use the words “fluid recovery” or “cy pr�a srestitution” when enacting section 17203 (or in 1972, when amending section 17535), opting instead for a general descriptionencompassing “such orders . . . as may be necessary” to deter or restore the fruits of unfair competition, does not imply it meant todeprive courts of these established powers. To the contrary, when a legislative body “entrusts to an equity court the enforcementof prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity toprovide complete relief in light of the statutory purposes.” (Mitchell v. DeMario Jewelry (1960) 361 U.S. 288, 291-292.) Senate and Assembly legislative history sources respecting the 1972 amendments to section 17535 “indicate that the Legislaturewas concerned to affirm the ‘ general equity power’ of the courts, particularly the power to order restitution.” (Dean WitterReynolds, Inc. v. Superior Court, supra, 211 Cal.App.3d at p. 774, citing Assem. Com. on Judiciary, Analysis of Assem. BillNo. 1763 (1972 Reg. Sess.) May 1, 1972; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1763 (1972 Reg. Sess.) undated.)As discussed, California courts’ “general equity power,” then as now, encompassed cy pr�a s and fluid remedies; accordingly,these contemporaneous legislative history documents plainly do not support-but, rather, refute-the majority’ s tortured attempt todemonstrate that, when the Legislature amended section 17535 and the UCL, concededly thereby “confirm[ing]” (maj. opn., ante,at p. 16) California courts’ equitable powers, it somehow at the same time restricted those powers so as to foreclose fullenforcement of orders, like the trial court’s in the instant case, that employ such equitable devices. Quite recently, we reaffirmed our general understanding that “‘ “[t]he laws against unfair business practices were drafted in largepart to prevent a wrongdoer from retaining the benefits of its illegal acts.” ‘ “(Stop Youth Addiction, supra, 17 Cal.4th at p. 575,fn. 11, quoting ABC, supra, 14 Cal.4th at p. 1270.) The “general equity power” that the majority acknowledges is preserved bysections 17203 and 17535 has always included a “full range of . . . inherent powers . . . to accomplish complete justice betweenthe parties, restoring if necessary the status quo ante as nearly as may be achieved” (Jayhill, supra, 9 Cal.3d at p. 286). “It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws inaccordance with the expressed intention of the Legislature. ‘ This court has no power to rewrite the statute so as to make itconform to a presumed intention which is not expressed.’ “(California Teachers Assn. v. Governing Bd. of Rialto Unified SchoolDist. (1997) 14 Cal.4th 627, 633.) The majority today transgresses that fundamental principle, judicially rewriting the UCL toinclude a partial ban on fluid recovery that the Legislature neither expressed nor intended. Due Process As noted at the outset, the majority holds that defendants have not been denied due process (maj. opn, ante, at p. 1) and that theremedial order in this case, understood as foreclosing the possibility of double recovery by accommodating any evidence of priorpayment, does not raise due process concerns (id. at p. 24). I agree. In reaching these conclusions, however, the majorityrepeatedly alludes to “the due process concerns of defendants” (maj. opn., ante, at p. 24; see also id. at pp. 1, 6, 24-25), at onepoint opining in dictum that “allowing fluid recovery in representative UCL actions might implicate the due process concerns raisedby defendants here and noted by the Court of Appeal in Bronco Wine Co. [v. Frank A. Logoluso Farms], supra, 214 Cal.App.3dat page 717]” (maj. opn., ante, at p. 23). As the majority explains, defendants have argued that UCL fluid recovery (both in thetrial court’s order in this case and generally) creates a risk of “multiple suits and duplicative liability,” adequate protections againstwhich are, according to defendants, “available only in a class action.” (Maj. opn., ante, at p. 24.) For several reasons, I disagree that UCL fluid recovery (either in this case or generally) creates for defendants a risk either ofoppressive litigation or of being forced to pay more than once for a single injury. Initially, I agree with Justice Kennard that repetitive suits by nonparties in this case is not a realistic possibility. (Conc. opn. ofKennard, J., ante, at p. 1.) Were the court to enforce the trial court’s disgorgement order (minus its provisions respecting “TenantInitiation Expense Reimbursement” or TIER fees) and were a former tenant not a party to this action subsequently to sue underthe UCL based on defendants’ actions between April 1990 and April 1994, [FOOTNOTE 6*] no court entertaining such an actioncould award additional disgorgement because, by virtue of the judgment in this case, defendants would have given up all theirill-gotten gains and, as a matter of law, would have nothing left to disgorge. [FOOTNOTE 7*] Nor, were such a potential futureplaintiff to restrict her remedial plea to restitution of amounts she herself paid, would the suit threaten doubly to penalizedefendants, as in such a case the plaintiff would be referred to the previously established fluid recovery fund for reimbursement aseligible. Neither scenario implicates due process, either for defendants or plaintiffs. The majority does not suggest there would be any due process problem if, after issuance of a particular UCL fluid recovery order,a subsequent plaintiff, before the statute of limitations had run, commenced and prosecuted to judgment a claim based on the sameconduct by the defendant and recovered in that subsequent action other or greater remedies for other or greater injuries than wereredressed or proven in the former action. Nor would there be a due process problem to the extent such a plaintiff’ s actualrecovery in the second action might (on the defendant’ s application or the court’s own motion) appropriately be fashioned toaccount for availability of remedies established in the first action (such as restitution from a fluid recovery fund) for the sameinjuries. In UCL actions, generally, remedial fluid recovery funds necessarily are governed by section 17203; therefore, a court may, inadministering any fluid recovery scheme, “make such orders or judgments . . . as may be necessary to prevent the use oremployment by any person of any practice which constitutes unfair competition . . . or as may be necessary to restore to anyperson in interest any money or property . . . which may have been acquired” thereby. (� 17203.) As previously noted, werecently reaffirmed that section 17203 “provid[es] courts with broad equitable powers” (ABC, supra, 14 Cal.4th at p. 1270) tofashion flexible UCL remedies. Thus, in UCL actions seeking fluid recovery, as in all UCL actions, a court has power and authority to fashion a constitutionalremedy. For example, as discussed, a trial court has discretion, in the exercise of its broad equitable powers under the UCL, in anappropriate case to require class action procedures, or to require advance notice to nonparties. The majority does not dispute atrial court’s equitable power not to award fluid recovery in particular cases, or to award it on terms designedly protective ofconstitutional rights. Nothing in the UCL-or any other statute, so far as I am aware-prevents a defendant from insisting upon, or acourt in the exercise of the “full range” of its equitable powers from ordering, controls and procedures that ensure against any riskof double disgorgement. (See generally ABC, supra, 14 Cal.4th at p. 1269; Jayhill, supra, 9 Cal.3d at p. 286.) In actions that may arise subsequent to a UCL fluid recovery order, just as California courts are served by legal and equitableprinciples empowering them to craft remedies in light of relief previously awarded, so too they are bound by others forbidding themto permit any kind of double recovery. (See, e.g., City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158 [citing therule that "employees who settle their claims for lost wages and work benefits as part of a [Labor Code] section 132a proceedingcould not recover these damages as part of a subsequent FEHA proceeding” as an example of how “equitable principles precludedouble recovery for employees” ]; Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 994 [to prevent double recovery,damages awarded employee in trial against third party tortfeasors must be reduced by amount of workers compensation benefitsreceived]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [invoking "the rule against double recovery of tort and contractcompensatory damages" ].) Accordingly, in UCL actions generally, the trial court plainly possesses authority and discretion to fashion fluid recovery ordersthat achieve the UCL’ s remedial purposes while assuring fundamental fairness to the parties. In this case, the fluid recovery fund should be governed by the trial court’s order creating it. As the majority concedes, thelikelihood that any former tenant could presently overcome a statute of limitations barrier and separately recover againstdefendants is remote. (Maj. opn., ante, at p. 25.) Thus, the possibility of such actions poses no practical due process threat. In anyevent, to the extent unresolved claims exist of which we are not apprised (which seems unlikely in view of defendants’ presumedinterest in bringing such to our attention), their resolution would be governed by the principles set forth above and, as I haveexplained, this court is in a position to remind the lower courts of their power and obligation to fashion and administer UCLremedies in accordance with due process and general equitable considerations. Even to the extent any theoretical risk remains of future duplicative suits, however, no practical possibility exists of doubledisgorgement. The fluid recovery fund created by the trial court would be “administered as a trust fund for the purpose ofproviding financial assistance for the advancement of legal rights and interests of residential tenants in the City and County of SanFrancisco,” but only after 90 days’ due diligence is conducted and restitution is made to plaintiffs and other former tenants foundthereby. The court ordered restitution payments to be deducted “from the amount required for disgorgement,” and reserved allissues concerning award of attorney fees and costs. Finally, the court retained jurisdiction over the parties and the subject matterof the action for the purpose of further proceedings to secure implementation and enforcement of its remedial order. In light of the fluid recovery order’ s numerous express provisions for continuing court oversight and administration, I concludethat the trial court, exercising its “broad equitable powers” (ABC, supra, 14 Cal.4th at p. 1270) to fashion fair and effective UCLremedies, crafted a specific fluid remedy that constitutes no substantial threat to defendants’ due process rights. In the eventunanticipated complications were to arise and threaten either party’ s rights, the court could adjust the terms of the order and theadministration of the trust fund to accommodate the circumstances. It was in order to retain such flexibility, presumably, that thetrial court retained jurisdiction over the fund and provided that “[t]he specific charter for the trust fund, as well as more specificcriteria and arrangements for administering the fund and authorizing disbursements from it, shall be approved by the Court andshall be the subject of further proceedings.” For the foregoing reasons, I reject any suggestion that UCL fluid recovery inherently poses due process concerns. What the majority accomplishes today is judicial legislation, plain and simple. Proposals for limiting UCL recovery to individualsdirectly harmed (after the fashion of the majority opinion) or for otherwise circumscribing UCL actions repeatedly have beenrejected by the Legislature. [FOOTNOTE 8*] No matter-the majority today fiats judicially what the UCL’ s detractors long havesought, and been denied, legislatively. The trial court ordered defendant landlords to disgorge $448,000 (plus interest) in liquidated damages they illegally collected whileleasing apartments over four years, but the majority today declines to enforce that order except to the extent any monies disgorgedare paid as restitution to identified former tenants. The trial court’s order identifies $2,255 in illegal proceeds payable as such. Thedifference is $445,745, plus interest. That this court should reach out, contrary to plain statutory language, legislative history andlongstanding judicial precedent in which our Legislature consistently has acquiesced, so as to permit defendants to retain theseill-gotten gains, is regrettable. Our task is not to favor or disfavor the UCL, but to effectuate the intent of the Legislature. In this case, the trial court’s orderdirecting disgorgement of defendants’ illegal profits did just that. I would reverse the judgment of the Court of Appeal and remandthe cause for further proceedings consistent with the foregoing. WERDEGAR, J. :::FOOTNOTES::: FN*.Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. FN1 Unless otherwise stated, all statutory references are to the Business and Professions Code. FN2 Defendants identified this charge as a “Tenant Initiation Expense Reimbursement” or TIER fee. FN3 Section 17200 defines unfair competition as “any unlawful, unfair or fraudulent business act or practice and unfair,deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 ofDivision 7 of the Business and Professions Code.” FN4 The trial court sustained defendants’ demurrer to this paragraph of the complaint. FN5 The court found that the average liquidated damages charge was $700. A security deposit in the amount of one month’ srent required of each tenant was routinely used to secure payment of the liquidated damages amount. FN6 The second step of the procedure for implementation of fluid recovery, as described in both Granberry v. IslayInvestments (1995) 9 Cal.4th 738, 750, footnote 7, and State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472, bothclass action cases, permits class members to collect their share of the recovery. The judgment in this case does not expresslyprovide for any restitution of liquidated damage/security fee payments to tenants. FN7 Defendants also argued that the court erred in finding that the liquidated damages clause of the lease was unlawful, denyingsetoffs, and awarding interest. No issues related to these claims are before this court. FN8 A petition for rehearing pointing out this omission (see Cal. Rules of Court, rule 29(b)(2)) was denied. FN9 The action was not instituted as a class action. Only paragraph 27, in the cause of action for unfair business practices,indicated that relief was sought on behalf of absent persons. That paragraph stated: “Plaintiffs allege this claim on behalf ofthemselves and all other present and former tenants of the defendants who have been subject to these unlawful and unfairbusiness acts and practices.” As noted earlier, defendants had argued in the trial court that a representative UCL action was notauthorized and that class action procedures were required if plaintiffs were to recover on behalf of persons who were not partiesto the action. FN10 “[A]ny person acting for the interests of itself, its members, or the general public” as well as specified public officials, mayseek UCL relief on behalf of the general public. (� 17204.) We use the term “representative action” to refer to a UCL action thatis not certified as a class action in which a private person is the plaintiff and seeks disgorgement and/or restitution on behalf ofpersons other than or in addition to the plaintiff. FN11 Section 17203 authorizes the court to make orders necessary to restore real or personal property and money “to any personin interest.” The Legislature has used the term “person in interest” repeatedly in contexts that confirm this understanding of itsmeaning. (See, e.g., � � 17535, 19214; see also Code Civ. Proc., � 873.810; Pub. Res. Code, � 25966.) Code of Civil Proceduresection 1235.125 provides further: “When used with reference to property, ‘ interest’ includes any right, title, or estate in property.”"Interests in Property” are described in Civil Code sections 678-703.) FN12 Code of Civil Procedure section 384 now provides, in relevant part: “(a) It is the intent of the Legislature in enacting thissection to ensure that the unpaid residuals in class action litigation are distributed, to the extent possible, in a manner designedeither to further the purposes of the underlying causes of action, or to promote justice for all Californians. . . . [� ] (b) Except asprovided in subdivision (d), prior to the entry of any judgment in a class action established pursuant to Section 382, the court shalldetermine the total amount that will be payable to all class members, if all class members are paid the amount to which they areentitled pursuant to the judgment. The court shall also set a date when the parties shall report to the court the total amount thatwas actually paid to the class members. After the report is received, the court shall amend the judgment to direct the defendant topay the sum of the unpaid residue, plus interest on that sum at the legal rate of interest from the date of entry of the initialjudgment, in any manner the court determines is consistent with the objectives and purpose of the underlying cause of action,including to child advocacy programs and to the California Legal Corps . . . .” FN13 In 1976, Civil Code section 3369, as amended, provided: “1. Neither specific nor preventative relief can be granted toenforce a penalty or forfeiture in any case, nor to enforce a penal law, except in a case of nuisance or unfair competition. “2. Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court ofcompetent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may benecessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in thissection, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have beenacquired by means of such unfair competition. “3. As used in this section, unfair competition shall mean and include unlawful, unfair or fraudulent business practice and unfair,deceptive, untrue or misleading advertising and any act denounced by Business and Professions Code Sections 17500 to 17535,inclusive. “4. As used in this section, the term person shall mean and include natural persons, corporations, firms, partnerships, joint stockcompanies, associations and other organizations of persons. “5. Actions for injunction under this section may be prosecuted by the Attorney General or any district attorney or any cityattorney of a city having a population in excess of 750,000 . . . . “6. Unless otherwise expressly provided, the remedies or penalties provided by this section and section 3370.1 are cumulative toeach other and to the remedies or penalties available under all other laws of this state.” (Stats. 1976, ch. 1005, � 1, pp. 2378-2379.) When the UCL was adopted in 1977, these provisions became sections 17200-17205. (Stats. 1977, ch. 299, p. 1202 et seq.) FN14 Amicus curiae California District Attorneys Association argues that the court has inherent power to order disgorgementand that the court should be free to determine in the individual representative UCL action by a private party whether to orderdisgorgement/restitution and payment into a fluid recovery fund, or to require that the action proceed as a class action. The court’sinherent equitable power may not be exercised in a manner inconsistent with the legislative intent underlying a statute, however.(See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Bauguess v. Paine (1978) 22 Cal.3d 626, 637-638.) Exceptwhere legislative action impinges on the exercise of fundamental judicial powers and thus violates the separation of powersdoctrine (Cal. Const., art. III, � 3), a statute may specify the remedy and/or relief available for violation of the statute and therebylimit the extent of equitable relief a court may grant. FN15 Section 17535: “Any person, corporation, firm, partnership, joint stock company, or any other association or organizationwhich violates or proposes to violate this chapter may be enjoined by any court of competent jurisdiction. The court may makesuch orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by anyperson, corporation, firm, partnership, joint stock company, or any other association or organization of any practices which violatethis chapter, or which may be necessary to restore to any person in interest any money or property, real or personal, which mayhave been acquired by means of any practice in this chapter declared to be unlawful. “Actions for injunction under this section may be prosecuted by the Attorney General or any district attorney, county counsel, cityattorney, or city prosecutor in this state in the name of the people of the State of California upon their own complaint or upon thecomplaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members orthe general public.” FN16 As the court explained in Holloway, rejecting a claim that consumers and members of the public at large had standing toenforce the Act, Congress was aware that the breadth of unfair practices that might be subject to the FTC Act required acoherent enforcement regime: “[T]his breadth of prohibition carried with it a danger that the statute might become a source ofvexatious litigation. Expertise was called for . . . to avoid using the statute as a vehicle for trivial or frivolous claims. There was,furthermore, a need to develop a central and coherent body of precedent, construing and applying the statute in a wide range offactual contexts, so as to define its operative reach. Finally, it would be of assistance to create a specialized forum wherebusinessmen whose methods had been called into question could voluntarily revise their practices without the need to resort to thecourts.” (485 F.2d at p. 990, fns. omitted.) Congress also foresaw that private enforcement actions could impose unwarranted burdens on defendants. In exercising itsenforcement discretion, the FTC could consider the relative seriousness of a violation and the effect an enforcement proceedingwould have on the public and commercial relationships. It could also consider whether to act against an individual party or on anindustry-wide basis, what type of action to take, what remedy to seek, and other factors. “Above all, there is a need to weigh eachaction against the Commission’ s broad range policy goals and to determine its place in the overall enforcement program of theFTC. [� ] Private litigants are not subject to the same constraints. They may institute piecemeal lawsuits, reflecting disparateconcerns and not a coordinated enforcement program. The consequence would burden not only the defendants selected but alsothe judicial system. It was to avoid such possibilities of lack of coherence that Congress focused on the FTC as an exclusiveenforcement authority.” (Holloway, supra, 485 F.2d at pp. 997-998, fns. omitted.) FN17 Earlier, in Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, the court held that the trial court had abused itsdiscretion in ruling that a class action seeking refund of excess sales taxes collected on redemption of trading stamp books shouldbe permitted notwithstanding the extremely small potential individual recovery (18 cents), the inability of most class members toestablish their entitlement to recover, and the likelihood that few class members would make a claim. We rejected an argumentthat the action should be permitted because fluid recovery could be ordered in the form of reduction of future tax charges,reasoning that there was no correlation between those who paid the excess taxes and those who would benefit from a futurereduction of the redemption price. FN18 Because an order to disgorge into a fluid recovery fund is not authorized in such representative UCL actions, the trial courtmay order the defendant to notify the absent persons on whose behalf the action is prosecuted of their right to make a claim forrestitution, establish a reasonable time within which such claims must be made to the defendant, and retain jurisdiction toadjudicate any disputes over entitlement to and the amount of restitution to be paid. FN19 Civil Code section 1950.6, enacted in 1996 (Stats. 1996, ch. 525, � 1 now expressly permits a rental application screeningfee “[n]otwithstanding Section 1950.5.” FN20 Having reached this conclusion, we need not address defendants’ argument that Civil Code section 1950.5 isunconstitutionally vague, either on its face or in its application to defendants, or their claim that relitigation of the status of theTIER fee is barred by res judicata or collateral estoppel. FN1* Except as otherwise noted, undesignated statutory references are to this code. FN2* Nowhere in any of the statutes cited by the majority is it “expressly provided” that UCL remedies are displaced or evenlimited. “The term ‘ “expressly” means “in an express manner; in direct or unmistakable terms; explicitly; definitely; directly.” ‘”(Stop Youth Addiction, supra, 17 Cal.4th at p. 573, citing Webster’ s New Internat. Dict. (3d ed. 1981) p. 803.) In order toconclude, as the majority states, that the mere existence of the CLRA and Code of Civil Procedure section 384 impliedly barsUCL fluid recovery, “we would have to read the word ‘ implicitly’ into section 17205 or read the word ‘ expressly’ out of it. Ouroffice, of course, ‘ is simply to ascertain and declare’ what is in the relevant statutes, ‘ not to insert what has been omitted, or toomit what has been inserted.’ “(Stop Youth Addiction, supra, at p. 573, quoting Code Civ. Proc., � 1858.) “We are not authorizedto insert qualifying provisions not included, and may not rewrite the statute to conform to an assumed intention which does notappear from its language.” (Stop Youth Addiction, supra, at p. 573.) FN3* That Code of Civil Procedure section 384, subdivision (d) expressly preserves cy pr�a s remedies only “in any class action”is not surprising given the section’ s exclusive focus on “the unpaid residuals in class action litigation.” (Code Civ. Proc., � 384,subd. (a).) Nothing in the statute suggests the Legislature even imagined section 384 might be thought to displace equitable orstatutory cy pr�a s outside the class action context. As we previously have noted, the Legislature has stated that its intent was just”‘ to ensure that the unpaid residuals in class action litigation are distributed’ “appropriately. (Granberry v. Islay Investments,supra, 9 Cal.4th at p. 751, citing Code Civ. Proc., � 384, subd. (a).) FN4* See majority opinion, ante, at page 9; Levi Strauss, supra, 41 Cal.3d at page 474. FN5* Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699 is no authority to the contrary. The Court ofAppeal there expressly did not reach the issue of “whether it is proper to maintain an individual, representative action for unfaircompetition outside the confines of a class action.” (Id. at p. 720.) FN6* The period covered by the applicable four-year statute of limitations in this suit filed on April 6, 1994, and for which the trialcourt calculated its remedial order. FN7* See also concurring opinion of Kennard, J., ante, at pages 1-2, explaining that “to the extent UCL restitution already paidoverlaps with damages suffered as a result of the non-UCL claims, the defendant would be entitled to credit in [a] subsequentaction . . . .” FN8* See Anderson, Complaining More Efficiently, San Francisco Daily Journal (Sept. 16, 1999) page 1 (noting that, foryears “state business groups have pushed unsuccessfully for legislation to make it more difficult for plaintiffs to pursue unfairbusiness practice claims” (id. at p. 9) and describing the repeated failure of bills to require class certification in UCL actions ormore narrowly define “unfair competition.” ) A recent attempt by UCL opponents to legislate such limits, Assembly Bill No. 2186(1999-2000 Reg. Sess.), was defeated in the Assembly Judiciary Committee. (See Bridge, Tort Reformers Try Hard, but OddsAre Long, S.F. Recorder (May 3, 2000) p. 1.) One observer called Assembly Bill No. 2186 “the Legislature’ s likeliest candidatefor failure” should it return. (Ibid.)

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Kraus v. Trinity Management In the Supreme Court of California Vickey Kraus et al., Plaintiffs and Respondents, v. Trinity Management Services, Inc., et al., Defendants and Appellants. No. S064870 Super. Ct. No. 959982, San Francisco County Superior Court, Hon. Roy L. Norman [FOOTNOTE *]. Ct. App. 1/2 A070864/A071375 Filed: June 5, 2000 Before: BAXTER, J., GEORGE, C.J., MOSK, J., CHIN, J., BROWN, J., KENNARD, J., WERDEGAR, J. COUNSEL: William B. Boone; The Advani Law Firm, Kelly, Herlihy, Advani & Klein, Mukesh Advani, Reed E. Harvey; Sangster, Mannion & Curfman, Sangster, Mannion & Lowe and Richard M. Sangster for Defendants and Appellants. Fred J. Hiestand for the Association for California Tort Reform as Amicus Curiae on behalf of Defendants and Appellants. Gibson, Dunn & Crutcher, Gail E. Lees and Richard D. Gluck for ITT Educational Services, Inc., as Amicus Curiae on behalf ofDefendants and Appellants. Kimball, Tirey & St. John and Theodore C. Kimball for the California Apartment Association as Amicus Curiae on behalf ofDefendants and Appellants. Fred L. Main; Livingston & Mattesich Law Corporation, Carol Livingston and Gene Livingston for the California Chamber ofCommerce as Amicus Curiae on behalf of Defendants and Appellants. Coblentz, Patch, Duffy & Bass, Jeffrey G. Knowles, Keith Evans-Orville and Clifford E. Yin for Metropolitan Life InsuranceCompany as Amicus Curiae on behalf of Defendants and Appellants. Severson & Werson, Jan T. Chilton and William L. Stern for California Bankers Association and California Financial Services asAmici Curiae on behalf of Defendants and Appellants. Phillip E. Stano; Mayer, Brown & Platt, Evan M. Tager, Donald M. Falk and Harold Smith Reeves for American Council of LifeInsurance as Amicus Curiae on behalf of Defendants and Appellants. Manatt, Phelps & Phillips, Robert E. Hinerfeld, Barry S. Landsberg and Terri D. Keville for First Healthcare Corporation asAmicus Curiae on behalf of Defendants and Appellants. O’ Melveny & Myers, Mark Wood and John F. Daum for State Farm Mutual Automobile Insurance Company and State FarmGeneral Insurance Company as Amici Curiae on behalf of Defendants and Appellants. Horvitz & Levy, David M. Axelrad and Lisa Perrochet for Truck Insurance Exchange as Amicus Curiae on behalf ofDefendants and Appellants. Robie & Matthai, Pamela E. Dunn and Daniel J. Koes for United Services Automobile Association as Amicus Curiae on behalfof Defendants and Appellants. Stephen L. Collier; Chapman, Popik & White, Susan M. Popik, William B. Chapman and Mark A. White for Plaintiffs andRespondents. The Cartwright & Alexander Law Firm and Mary E. Alexander for Consumer Attorneys of California as Amicus Curiae onbehalf of Plaintiffs and Respondents. Louise H. Renne, City Attorney (San Francisco), Dennis Aftergut, Chief Assistant City Attorney, Owen J. Clements, Andrew Y.S. Cheng, Jayne C. Lee and Rebecca Bedwell-Coll, Deputy City Attorneys, for the City and County of San Francisco, the City ofSan Jose, the Counties of Sacramento and San Bernardino and the American Heart Association, California Affiliate as AmiciCuriae on behalf of Plaintiffs and Respondents. Kenneth W. Babcock; Kathleen A. Michon; and Earl Lui for Public Counsel Law Center and Consumers Union of U.S., Inc, asAmici Curiae on behalf of Plaintiffs and Respondents. Lawrence G. Brown; Lydia Villarreal, Deputy District Attorney (Monterey); and Christopher G. Carpenter, Assistant DistrictAttorney (Alameda) for the California District Attorneys Association as Amicus Curiae.