Can a private party bring an action to enjoin future violations of section 6152 of the California Business and Professions Code?

California, United States of America


The following excerpt is from Rubin v. Green, 3 Cal.App.4th 1418, 5 Cal.Rptr.2d 331 (Cal. App. 1992):

Moreover, even assuming that a private party is authorized by section 17204 to bring an action to enjoin future violations of section 6152, it does not follow that such a cause of action is not subject to the litigation privilege. By the majority's own analysis, that issue is determined by deciding which of the two competing statutory provisions is more general. The majority apparently concludes that Civil Code section 47, subdivision (b)(2), which expressly grants tort immunity to publications made in judicial proceedings, is more general than the "broad, sweeping language" (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 112, 101 Cal.Rptr. 745, 496 P.2d 817) of Business and Professions Code section 17200, which imposes tort liability for any " 'scheme ... which on its face violates the fundamental rules of honesty and fair dealing....' " (Barquis, supra, at p. 112, 101 Cal.Rptr. 745, 496 P.2d 817.) I do not agree. In my view, the latter is far more general, and thus any civil liability which it creates is subject to the defense of the immunity specifically provided by Civil Code section 47.

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