Opinion
Los Angeles County Super. Ct. Nos. BC247889, BC278713.
ORDER MODIFYING OPINION AND DENYING RESPONDENTS’PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on January 10, 2006, be modified as follows:
1. The Attorney General’s Office should be added to the list of attorneys appearing in the case as designated on the first page of the opinion as follows:
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Albert Norman Shelden, Senior Assistant Attorney General, Ronald A. Reiter, Supervising Deputy Attorney General and Benjamin G. Diehl, Deputy Attorney General, as Amicus Curiae on behalf of Plaintiffs/Respondents.
2. Page 35, first full paragraph, line 4, omit the word “non-restitutionary.�
3. Page 35, first full paragraph, line 4, after the words “it could.� delete citations and replace them as follows:
(State v. Altus Finance, supra, 36 Cal.4th at p. 1304, fn. 7; Korea Supply, supra, 29 Cal.4th at pp. 1144-1145; Kraus, supra, 23 Cal.4th at pp. 126-127, 137 [disgorgement “may compel a defendant to surrender all money obtained through an unfair business practice even though not all is to be restored to the persons from whom it was obtained or those claiming under those persons�].)
4. Page 37, at the end of the second full paragraph add a footnote 24 symbol and at the bottom of the page add as footnote 24, the following:
“[T]he terms equity and equitable are not always used to refer to remedial characteristics of a case. . . . [E]quitable . . . sometimes refers to fairness, sometimes to the jurisdictional mass of equity precedent, sometimes to remedies.� (Dobbs, Law of Remedies (2d ed. 1993)Meaning of Equity, § 2.1(3), p. 55; see 12 Corbin on Contracts (Interim edition 2002) Restitution, § 1103, p. 10 [“The remedy of restitution . . . can not properly be described as either ‘legal’ or ‘equitable’ in any narrowly restricted signification of those terms�].)
5. Page 38: second full paragraph, line 6: delete everything after the phrase “appropriate measure of� and replace with the following:
either the unlawful benefit to Leatherman or the amount necessary to restore consumers to the position in which they would have been but for the unlawful conduct. (See Cortez, supra, 23 Cal.4th at p. 171.)
6. Page 39, second and third lines, delete the words, “which would involve the amount attributable to the misleading ‘Made in U.S.A.’ representations� and end the sentence with the word ante.
7. Page 39, change footnote 24 to footnote 25.
8. Page 40, second full paragraph, after “(California Service Station etc. Assn v. Union Oil Co., supra, 232 Cal.App.3d at p. 57� add; see Feitelberg v. Credit Suisse First Boston, LLC, supra, 134 Cal.App.4th at p. 1012 [under section 17203, The “‘injunctive remedy should not be exercised “in the absence of any evidence that the acts are likely to be repeated in the future�’�].) (Stern, Bus. & Prof. C. § 17200 Practice, supra, ¶ 2:36, p. 2-10.)
9. On page 40, second full paragraph, add footnote symbol number 26 to the end of the Stern citation, and at the bottom of page 40, add as footnote 26, the following:
26. The 1992 amendment to section 17203 that reads, “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined . . .�, did not change the traditional grounds for injunctive relief. The purpose of this amendment was to expand the scope of section 17203 to include past acts so that discontinuance of those acts would not be a defense to liability. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 570.) The amendment had no affect on the basis for the equitable remedy of injunctive relief. (Stern, Bus. & Prof. C. § 17200 Practice, supra, ¶ 2:36, p. 2-10; ¶ 5:235, p. 5-65 to 5-66.)
10. Page 40, change footnote 25 to footnote 27; Page 41, change footnote 26 to footnote 28.
There is no change in judgment.
Respondents’ petition for rehearing is denied.
MOSK, J. TURNER, P.J. KRIEGLER, J.