Stop Youth Addiction, Inc. v. Lucky Stores, Inc.

950 P.2d 1086, 17 Cal. 4th 553, 98 Cal. Daily Op. Serv. 1280, 71 Cal. Rptr. 2d 731, 98 Daily Journal DAR 1765, 1998 Cal. LEXIS 902

Opinions

Opinion

WEKDEGAR, J.

The question presented is whether a private, for-profit corporation may maintain on behalf of the general public an unfair competition action against a retailer that, in violation of the Penal Code, sells cigarettes to minors. We conclude such an action is authorized under Business and Professions Code¹ sections 17200 through 17209 (the unfair competition law, or UCL).² Accordingly, we affirm the judgment of the Court of Appeal.

Facts

“Because this matter comes to us after the trial court sustained the defendant’s demurrer, ‘we must, under established principles, assume the truth of all properly pleaded material allegations of the complaint in evaluating the validity’ of the decision below.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 635 [49 Cal.Rptr.2d 377, 909 P.2d 981], quoting Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314].) Plaintiff Stop Youth Addiction, Inc. (SYA) alleges, inter alia:

SYA, a California corporation, brings this action in the public interest.

Defendant Lucky Stores, Inc. (Lucky) and numerous other retailers in Northern California sell cigarettes to minor children in violation of Penal Code section 308. Many of these children become addicted to cigarettes, as they would not have had Lucky not illegally sold them cigarettes. Lucky profits from addicting such children to cigarettes because many, unable to overcome their addiction, return to buy cigarettes as both children and adults.

Approximately 90 percent of cigarette sales in northern California are to children or to adults who were addicted as children and who would like, but are unable, to quit smoking. Consequently, Lucky has unjustly enriched itself in an amount equal to 90 percent of its gross profits from the sale of cigarettes. Every dollar Lucky obtains through such cigarette sales results, on average, in more than a dollar spent on health care by the State of California.

SYA prays for $10 billion in restitution to be paid to the State of California, an injunction forbidding Lucky to sell cigarettes to children, costs and reasonable attorney fees.

The superior court sustained Lucky’s general demurrer without leave to amend, opining that section 308, which prohibits the knowing sale of cigarettes to minors, “preempts” all private enforcement of section 308. The Court of Appeal, relying on our decisions in People v. McKale (1979) 25 Cal.3d 626 [159 Cal.Rptr. 811, 602 P.2d 731] and Committee on Children’s Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197 (Children’s Television), reversed the superior court’s order sustaining Lucky’s demurrer. We granted Lucky’s petition for review.

Discussion

We note at the outset what is not before us on review. Lucky and supporting amici curiae have attempted to call into question plaintiff’s and its counsel’s motives in prosecuting this action. Lucky points to plaintiff’s for-profit status, requests judicial notice of similar actions plaintiff has filed, and notes that plaintiff names many retailer defendants. Lucky also notes one court in a different case filed by plaintiff noted with concern evidence of attempts by plaintiff’s counsel to obtain monetary payments from certain defendants prior to filing the lawsuit. Lucky also suggests plaintiff’s methods of gathering evidence were unlawful and that plaintiff brings this case for its own and its attorney’s financial gain.

These are important concerns. As discussed below, no conclusion we reach respecting the viability of this action at demurrer stage should be taken as countenancing the illegal gathering of evidence. Generally, however, we agree with amicus curiae the California District Attorneys Association (CDAA) that only the sufficiency of plaintiff’s complaint, not the seemliness of its litigation strategy or its counsel’s motives, is properly before us on review at this time.³

As a threshold matter, it is plain that SYA, in alleging Lucky violates Penal Code section 308 in its retailing activities, adequately alleges unfair competition.⁴ The UCL defines “unfair competition” as “. . . any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . .” (§ 17200.) As we recently explained in reviewing the scope and purpose of the unfair competition law and its remedial provisions, “[t]he Legislature intended this ‘sweeping language’ to include ‘ “anything that can properly be called a business practice and that at the same time is forbidden by law.” ’ ” (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1266, quoting Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 111, 113 [101 Cal.Rptr. 745, 496 P.2d 817].)

Indeed, in expressly conceding “the right of . . . public prosecutors to bring claims under section 17200 such as those at issue here, to supplement the prosecutors’ enforcement rights under Penal Code section 308,” Lucky impliedly concedes claims- under section 17200 such as those at issue here are properly stated, i.e., that selling cigarettes to minors is unfair competition under the statute.

Lucky nevertheless contends the Court of Appeal erred in ruling this action may proceed. Lucky argues SYA’s suit is barred both by the UCL (because, according to Lucky, SYA lacks standing to bring a UCL action predicated on violation of a statute for the direct enforcement of which there is no private right of action) and by Penal Code section 308 (because, Lucky asserts, section 308, together with the Stop Tobacco Access to Kids Enforcement Act, Business and Professions Code sections 22950-22959 (STAKE Act), embodies the Legislature’s intent to create a comprehensive, exclusive scheme for combating the sale of tobacco to minors). Lucky also contends various public policy considerations militate against permitting this action to survive demurrer.

1. Standing

Section 17204 provides, in full: “Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city and county in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself its members or the general public.” (Italics added.)

Amicus curiae Association for California Tort Reform (ACTR) suggests that, from a grammatical perspective, section 17204 confers UCL standing only on the public prosecutors listed therein. More specifically, as ACTR would parse the statute, all that “any person acting for the interests of itself, its members or the general public” (§ 17204) may do about unfair competition is to complain about it to one of the officials, as appropriate, listed in the statute, e.g., the Attorney General, district attorney, county counsel or city prosecutor.

ACTR’s strained construction is contrary to our previous pronouncements. As Lucky concedes, pursuant to section 17200 as construed by this court and the Courts of Appeal, “a private plaintiff who has himself suffered no injury at all may sue to obtain relief for others.” (See, e.g., Children’s Television, supra, 35 Cal.3d at p. 211; Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71-73 [164 Cal.Rptr. 279].) That the Legislature in section 17204 used the disjunctive when listing the entities empowered to bring UCL “[ajctions for . . . relief’ plainly suggests it meant to designate such entities in the alternative. Amicus curiae points to nothing that contravenes such a plain reading of the statute.

More moderately, Lucky argues SYA should not be permitted to use the UCL to obtain relief, indirectly, for violation of an underlying statute—Penal Code section 308—that SYA is not authorized to enforce directly. According to Lucky, the only reasonable construction of the UCL is that its remedies are not available to private parties if the Legislature did not include an express private right of action in the enforcement scheme for the underlying law. Moreover, as Lucky interprets them, our previous pronouncements establish “ ‘the Business and Professions Code provides no toehold for scaling the barrier’” (Rubin v. Green (1993) 4 Cal.4th 1187, 1202 [17 Cal.Rptr.2d 828, 847 P.2d 1044], quoting Safeco Ins. Co. v. Superior Court (1990) 216 Cal.App.3d 1491, 1494 [265 Cal.Rptr. 585] (Safeco)) purportedly created in this case by what Lucky characterizes as the Legislature’s “denial” of a private right of action to enforce section 308.⁵

Lucky cannot mean to suggest that either Penal Code section 308 or the STAKE Act contains any express reference to the UCL; neither does. We previously have held, moreover, that “whether a private right of action should be implied under [the predicate] statute ... is immaterial since any unlawful business practice . . . may be redressed by a private action charging unfair competition in violation of Business and Professions Code sections 17200 and 17203.” (Children’s Television, supra, 35 Cal.3d at pp. 210-211, italics added, fns. omitted; see also id. at pp. 214-215; see, e.g., Fenning v. Glenfed, Inc. (1995) 40 Cal.App.4th 1285 [47 Cal.Rptr.2d 715] [UCL action based on violation of Office of Thrift Supervision regulations]; Rubin v. Green, supra, 4 Cal.4th 1187 [UCL action based on unlawful client solicitation]; Consumer’s Union of United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433 [257 Cal.Rptr. 151] [UCL action to enforce Unruh Civil Rights Act]; People v. McKale, supra, 25 Cal.3d 626 [UCL action based on violation of Mobilehome Parks Act].) Thus, as we have long recognized, it is in enacting the UCL itself, and not by virtue of particular predicate statutes, that the Legislature has conferred upon private plaintiffs “specific power” (People v. McKale, supra, 25 Cal.3d at p. 633) to prosecute unfair competition claims.

Lucky, suggesting it was dictum, urges us to reconsider our statement in Children’s Television respecting the “immateriality” for UCL standing of the private enforceability vel non of particular predicate statutes. As the Court of Appeal discerned, however, the question we answered in Children’s Television about the source of UCL standing was “actually involved and actually decided” (Childers v. Childers (1946) 74 Cal.App.2d 56, 61 [168 P.2d 218], italics in original) in that case. In Children’s Television the parties “vigorously disputefd]” whether a private right of action should be implied under the statute at issue (the Sherman Food, Drug and Cosmetic Law, Health & Saf. Code, former § 26000 et seq.; (the Sherman Law)). (Children’s Television, supra, 35 Cal.3d at p. 210.) We held, inter alia, that “any advertising scheme involving false, unfair, misleading or deceptive advertising of food products equally violates” the Sherman Law, the UCL and the false advertising law (Children’s Television, supra, 35 Cal.3d at p. 211), deriving that conclusion, in part, from the observation that “whether a private right of action should be implied” under the Sherman Law was “immaterial,” since the plaintiff could in any event state “a private action charging unfair competition” {id. at pp. 210-211). As our holding depended on it, our observation concerning the immateriality of an underlying private right of action was, contrary to Lucky’s contention, not dictum.

Although Children’s Television has been the law since 1983, the Legislature did not address the decision when it amended section 17200 in 1992. (See Stats. 1992, ch. 430, p. 1707.) Of course, any “presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislative intent” (Harris v. Capitol Growth Investors XIV (1991) 52 Cal.3d 1142, 1156 [278 Cal.Rptr. 614, 805 P.2d 873]); legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval (ibid., citing Cianci v. Superior Court (1985) 40 Cal.3d 903, 923 [221 Cal.Rptr. 575, 710 P.2d 375]). Nevertheless, had the Legislature at any time desired to change the UCL so as to restrict its application to situations in which the predicate statute expressly provides for private action, it undeniably has had ample time to do so.

In urging us to reconsider our holding in Children’s Television, Lucky relies heavily on our decisions in Blatty v. New York Times Co. (1986) 42 Cal.3d 1033 [232 Cal.Rptr. 542, 728 P.2d 1177], Rubin v. Green, supra, 4 Cal.4th 1187, and Manufacturers Life Ins. Co. v. Superior Court, supra, 10 Cal.4th 257 (Manufacturers Life). Together, Lucky suggests, these cases stand for the proposition that “a private litigant may not use the [UCL] to breathe new life into a cause of action the Legislature has denied it.” Lucky’s authorities are inapposite.

Blatty v. New York Times, supra, 42 Cal.3d 1033, involved an author’s claims against a newspaper for failure to list his book on its “best seller” list. In Blatty, we did not discuss the UCL at all. We simply held that “. . . First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement . . . .” (Blatty v. New York Times, supra, 42 Cal.3d at pp. 1044-1045.) In so holding, we affirmed a judgment dismissing numerous claims with that gravamen, including one for “unfair competition.” {Id. at p. 1038.) Unlike this case, Blatty v. New York Times did not present the question whether the absence of a private right of action to enforce the predicate statute compromises a plaintiff’s eligibility to maintain a UCL cause of action.

Nor, contrary to Lucky’s implication, did we hold in Rubin v. Green, supra, 4 Cal.4th 1187, that a UCL action is barred whenever the predicate statute fails to provide the plaintiff with an independent cause of action. The plaintiff there, a mobilehome park owner, sought damages and equitable relief against a park resident and her attorneys for alleged wrongful solicitation of other park residents as clients for litigation against the plaintiff. (Rubin v. Green, supra, 4 Cal.4th at pp. 1191-1192.) We held only that “the unfair competition statute does not override the litigation privilege in this case . . . .” (Id. at p. 1204.) While so holding, we expressly noted that “the policy underlying the [UCL] can be vindicated by multiple parties other than plaintiff under the broad standing provision of . . . section 17204.” (Ibid.) We regarded as “important” that “members of the public who, unlike plaintiff, are not adversaries in collateral litigation involving the same attorneys also have standing to pursue unfair competition claims under the statute.” (Ibid.; see also id. at pp. 1204, 1205 (cone, and dis. opn. of Baxter, J.) [dissenting “to the extent [the majority opinion] precludes plaintiff’s claim for injunctive relief’ because, inter alia, “section 17204 makes clear that virtually any member of the public may seek injunctive relief from unlawful business practice.” (Italics in original.)].)

Most importantly, neither Blatty v. New York Times, supra, 42 Cal.3d 1033, nor Rubin v. Green, supra, 4 Cal.4th 1187, focused on the question facing us. The outcome in those cases, rather, depended on overriding considerations not implicated here. In Blatty v. New York Times, we acted to prevent “creative pleading” from rendering nugatory the First Amendment limitations placed on litigation against speech. (42 Cal.3d at p. 1045.) In Rubin v. Green, as we later made plain, the specific bar we discerned to a UCL injunction was “the absolute bar to relief created by the litigation privilege.” (Manufacturers Life, supra, 10 Cal.4th at p. 283 [discussing Rubin v. Green].)

In Manufacturers Life, also relied on by Lucky, we upheld the Court of Appeal’s ruling that an unfair competition cause of action, based on conduct that violates both the Cartwright Act and the Unfair Insurance Practices Act (UIPA), is not barred by our holding in Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 [250 Cal.Rptr. 116, 758 P.2d 58] (Moradi-Shalal) that the UIPA implies no private right of action. Lucky points to our statement in Manufacturer’s Life that, in Rubin v. Green, in finding the plaintiff could not “plead around” the litigation privilege, we “analogized such pleading to the attempts [by other plaintiffs in other cases] to avoid the bar to ‘implied’ private causes of action under [the UIPA]” that we had recognized in Moradi-Shalal (see Manufacturers Life, supra, 10 Cal.4th at p. 283), and to our observation that several Courts of Appeal had held the bar to implied private causes of action under the UIPA “could not be avoided by characterizing the claim as one under the UC[L]” (ibid., citing Safeco, supra, 216 Cal.App.3d 1491; Maler v. Superior Court (1990) 220 Cal.App.3d 1592 [270 Cal.Rptr. 222]; Industrial Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1093 [257 Cal.Rptr. 655]; Lee v. Travelers Companies (1988) 205 Cal.App.3d 691, 694-695 [252 Cal.Rptr. 468]; Doctors’ Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1289 [275 Cal.Rptr. 674]; American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 768 [285 Cal.Rptr. 765]).

Neither from our discussion nor from the authorities we cited in Manufacturers Life, however, does it follow that a private plaintiff lacks UCL standing whenever the conduct alleged to constitute unfair competition violates a statute for the direct enforcement of which there is no private right of action. To the contrary, as noted, in Manufacturer’s Life we permitted a UCL claim based on the Cartwright Act to go forward, even while recognizing that the conduct alleged as unfair competition also violated the UIPA, for the direct enforcement of which, following Moradi-Shalal, there is no private right of action. Because the UCL claim at issue in Manufacturers Life was not (as this UCL action is not) “based on conduct which is absolutely privileged or immunized by another statute” (Manufacturer’s Life, supra, 10 Cal.4th at p. 284, citing Civ. Code, § 47, subd. (b)), we affirmed the Court of Appeal judgment overruling a demurrer to the claim (10 Cal.4th at p. 284).

In Manufacturers Life, moreover, we explained that Moradi-Shalal was not meant to impose sweeping limitations , on private antitrust or unfair competition actions. In Moradi-Shalal, we stated, the court concluded “that the Legislature did not intend to create new causes of action when it described unlawful insurance business practices in [Insurance Code] section 790.03,” but the court “did not hold that by identifying practices that are unlawful in the insurance industry . . . that violate the Cartwright Act, the Legislature intended to bar Cartwright Act causes of action based on those practices. Nothing in the UIPA would support such a conclusion. The UIPA nowhere reflects legislative intent to repeal the Cartwright Act insofar as it applies to the insurance industry, and the Legislature has clearly stated its intent that the remedies and penalties under the [UCL] are cumulative to other remedies and penalties.” (Manufacturers Life, supra, 10 Cal.4th at p. 284, italics added, fn. omitted.)

The situation is similar here. Simply no basis exists for concluding that, by identifying and'penalizing in Penal Code section 308 and the STAKE Act certain tobacco sales practices, the Legislature intended to bar unfair competition causes of action based on such practices. Section 308 and the STAKE Act nowhere reflect legislative intent to repeal other state statutes insofar as they may apply to tobacco retailers; in section 17205, on the other hand, the Legislature has clearly stated its intent that the remedies and penalties under the UCL be cumulative to other remedies and penalties.

Citing Safeco, supra, 216 Cal.App.3d 1491, Lucky suggests that, in prosecuting this action, SYA is attempting to circumvent the absence of a private right of action under Penal Code section 308. Undeniably, section 308 provides for its own direct enforcement only by public lawyers. It does not follow, however, that a private UCL action that “ ‘ “borrows” violations’ ” (Farmers Insurance Exchange v. Superior Court, supra, 2 Cal.4th at p. 383) of section 308 to establish predicate “unlawful” (§ 17200) business activity is barred. As relevant here, Safeco and similar cases on which Lucky relies, such as Maler v. Superior Court, supra, 220 Cal.App.3d 1592, and Rubin v. Green, supra, 4 Cal.4th 1187, stand at most for the proposition the UCL cannot be used to state a cause of action the gist of which is absolutely barred under some other principle of law. In Safeco and Maler, the concern was that “[t]o permit plaintiff to maintain [the UCL] action would render Moradi-Shalal meaningless” (Safeco, supra, 216 Cal.App.3d at p. 1494); in Rubin v. Green, the operative principle was the absolute privilege afforded litigation adversaries. Nothing in section 308, the STAKE Act or any other provision of law creates an analogous bar to this action.

Thus, contrary to Lucky’s assertion, neither Blatty v. New York Times, Rubin v. Green nor Manufacturers Life (to the extent it embraced Safeco and its progeny’s interpretation of Moradi-Shalal) implies a private UCL claim is barred whenever the predicate statute fails to afford a private right of action.

The Attorney General, representing the State of California as amicus curiae, suggests that construing section 17204 to confer standing on SYA would transform the criminal law into a body of civil law giving rise to private causes of action.⁶ To some extent, the Attorney General impliedly mischaracterizes SYA’s position. SYA does not contend a “private right of action” exists for it (or any other private plaintiff) to proceed under Penal Code section 308. SYA seeks relief from alleged unfair competition, not to enforce the Penal Code. As we previously have explained; “ ‘[i]n essence, an action based on [the UCL] to redress an unlawful business practice “borrows” violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.’ ” (Farmers Insurance Exchange v. Superior Court, supra, 2 Cal.4th at p. 383.)

The Attorney General’s suggestion is accurate only in the sense that violations of the Penal Code are, indisputably, “unlawful” (§ 17200) and, consequently, when committed as a “business act or practice” (ibid.), subject to UCL remediation in an action brought by “any person” (§ 17204). Recognition of that fact, however, “transforms” neither the criminal law nor the UCL.

Since their appearance in the early 1930’s, California’s unfair competition statutes have always expressly provided that, “in a case of . . . unfair competition” (Civ. Code, former § 3369, subd. (1)), civil actions “to enforce a penal law” (ibid.) “may be prosecuted by . . . any person” (id., subd. (5)), as well as by public prosecutors. (See generally, Note, Former Civil Code Section 3369: A Study In Judicial Interpretation (1979) 30 Hastings L. J. 705, 706 (Note).) In fact, the modem UCL had its inception in the Legislature’s expansion in 1933, to include unfair competition cases, of an exception (previously just for nuisance cases) to the long-standing principle that “ ‘[n] either specific nor preventive relief can be granted [inter alia, to private parties] to enforce a penal law . . . .’” (Note, supra, 30 Hastings LJ. at p. 706, and fn. 5, quoting Civ. Code, former § 3369.)

In sum, Lucky and its supporting amici curiae fail to demonstrate the Court of Appeal erred in concluding that, pursuant to the plain language and legislative history of section 17204, and consistent with our previous pronouncements, SYA has standing to prosecute this UCL action.

2. Legislative bar

As previously discussed, in maintaining its right to prosecute this action, SYA relies on the Legislature’s express provision that “[a]ctions for any relief pursuant to [the UCL] shall be prosecuted ... by any person acting for the interests of itself, its members or the general public.” (§ 17204.) Also as noted, in construing section 17204, “the courts have repeatedly permitted persons not personally aggrieved to bring suit for injunctive relief under the unfair competition statute on behalf of the general public, in order to enforce other statutes under which parties would otherwise lack standing.” (Consumers Union of the United States, Inc. v. Fisher Development, Inc., supra, 208 Cal.App.3d at p. 1440, italics in original, citing People v. McKale, supra, 25 Cal.3d at p. 632.) Nevertheless, sometimes mischaracterizing its argument as one for preemption, Lucky contends the Legislature impliedly barred this action⁷ by not including in either Penal Code section 308 or the STAKE Act an express private right of enforcement; by enacting section 308, subdivision (e) (declaring “the Legislature’s intent to regulate the subject matter of this section” and providing “no city, county, or city and county shall adopt any ordinance or regulation inconsistent with this section”); and by enacting section 308, subdivision (a) (providing that whosoever sells, gives or furnishes tobacco to a minor “is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney”). In short, Lucky contends the Legislature intended section 308 and the STAKE Act to comprise a comprehensive and exclusive scheme for combating the sale of tobacco to minors.

The doctrine of preemption applies, generally, when it is necessary to determine what displacing effect federal law, pursuant, inter alia, to the supremacy clause of the United States Constitution (id., art. VI, cl. 2), may have on state laws (see generally, Smiley v. Citibank (1995) 11 Cal.4th 138, 147-148 [44 Cal.Rptr.2d 441, 900 P.2d 690]) or state law, pursuant, inter alia, to article XI, section 7 of the California Constitution, may have on local laws (see generally, Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897-898 [16 Cal.Rptr.2d 215, 844 P.2d 534]). In substance, Lucky’s argument is more akin to one of implied repeal. While, like the preemption doctrine, the doctrine of implied repeal reflects the primacy of legislative intent (see generally, English v. General Electric Co. (1990) 496 U.S. 72, 79 [110 S.Ct. 2270, 2275, 110 L.Ed.2d 65]; Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 43 [283 Cal.Rptr. 584, 812 P.2d 931]), the implied repeal doctrine applies “[w]hen two or more statutes [enacted by the same legislature] concern the same subject matter and are in irreconcilable conflict . . . .” (In re Thierry S. (1977) 19 Cal.3d 727, 744 [139 Cal.Rptr. 708, 566 P.2d 610].) In such cases, “the doctrine of implied repeal provides that the most recently enacted statute expresses the will of the Legislature, and thus to the extent of the conflict impliedly repeals the earlier enactment.” (Ibid.)

Footnotes

•

8

Lucky acknowledges it is not asserting principles of federal preemption, but insists the Legislature had “preemptive intent” when enacting Penal Code section 308. Of course, our concern is the soundness of Lucky’s argument, not its characterization. Nonetheless, for the sake of clarity, we should recognize that, when arguing that the “remedies [of the UCL] are not available to private parties if the Legislature denied private enforcement rights when it established the appropriate enforcement scheme for the underlying law [i.e., by supplementing, in 1992, section 308 with the STAKE Act],” Lucky in substance posits the partial implied repeal of the UCL’s broad express standing provision, not its “preemption.” (See Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 417 [261 Cal.Rptr. 384, 777 P.2d 157].)

The governing principles in determining whether a statute repeals another by implication are well established. (People v. Hazelton (1996) 14 Cal.4th 101, 122 [58 Cal.Rptr.2d 443, 926 P.2d 423].) The law shuns repeals by implication. (Ibid.) In fact, “ ‘[t]he presumption against implied repeal is so strong that, “To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.” ’ ” (Ibid., quoting Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at pp. 419-420.)

According to Lucky, the Legislature’s failure, when amending the UCL in 1992, to take any action expressly to contravene the Safeco line of decisions (concerning UCL actions premised on the UIPA) constitutes its ratification of the principle that a valid private UCL action cannot be predicated on a defendant’s violation of a statute for the direct enforcement of which there is no private right of action. As previously explained (ante, pp. 565-566), however, the Safeco line of decisions stands for no such sweeping principle. In any event, the'history of the UCL’s enactment and amendment suggests the Legislature understands and accepts the breadth inherent in the UCL as we have construed it.

The precursor to the UCL was former Civil Code section 3369, which originally read: “ ‘Neither specific nor preventive relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.’ ” (Note, supra, 30 Hastings L.J. at p. 706, fn. 5.) In 1933, the Legislature created the modem UCL by expanding section 3369’s exception for nuisance cases to include unfair competition cases. The 1933 amendment to the statute provided injunctive relief from unfair competition and defined “unfair competition” to include “unfair or fraudulent business practice” as well as false advertising. (Note, supra, 30 Hastings L.J. at p. 706.) The amendment expressly authorized the attorney general, district attorneys and private individuals to seek injunctive relief and defined “person” very broadly, “so as to include virtually any combination of persons.” (Id. at pp. 706-707.) In 1963, the Legislature further broadened section 3369 by adding the word “unlawful” to the types of wrongful business conduct that could be enjoined as unfair competition. (Barquis v. Merchants Collection Assn., supra, 7 Cal.3d at p. 112.)

In 1977, the Legislature moved the UCL to section 17200 et seq. of the Business and Professions Code, “a move not intended to alter it substantively nor to affect the applicability of pre-existing interpretive case law.” (Fellmeth, California’s Unfair Competition Act: Conundrums and Confusions (Jan. 1995), published as part of Recommendation on Unfair Competition Litigation (Nov. 1996) 26 Cal. Law Revision Com. Rep. (1996) p. 232, fns. omitted.) The UCL now appears between the similarly titled Unfair Practices Act beginning at section 17000, which is roughly analogous to the federal Clayton Act (e.g., prohibiting predatory below cost and price discrimination offenses), and section 17500, which prohibits deceptive advertising. (Ibid.)

More recently, in 1992, the Legislature amended section 17200 to expand the definition of unfair competition to include “any unlawful, unfair, or fraudulent business act or practice” (See Stats. 1992, ch. 430, § 2, p. 1707 [inserting italicized language]) and amended section 17203 to expand the scope of injunctive relief to encompass past activity and out-of-state activity. (See Stats. 1992, ch. 430, § 3, p. 1707 [replacing “person performing or proposing to perform an act of unfair competition within this state” with “person who engages, has engaged, or proposes to engage in unfair competition”].) The 1992 amendments overruled former case law that had limited the statute’s application. (See State of California ex rel. Vande Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1169-1170 [252 Cal.Rptr. 221, 762 P.2d 385] [UCL’s “ ‘practice’ requirement envisions something more than a single transaction”].)

As the foregoing demonstrates, whenever the Legislature has acted to amend the UCL, it has done so only to expand its scope, never to narrow it. Consistently, just last term, the Legislature rejected several pieces of proposed legislation designed to restrict UCL standing in various ways. (See Dresslar, Effort to Limit Consumer Suits Appears at Impasse, S. F. Daily Journal (May 16, 1997) p. I.)⁹

Moreover, contrary to Lucky’s contention, the Legislature’s enactment of the STAKE Act belies, rather than supports, the notion that it meant Penal Code section 308 to be the exclusive means in California of combating sales of tobacco to minors. The STAKE Act requires the Department of Health Services (DHS), inter alia, to “[establish and develop a program to reduce the availability of tobacco products to persons under 18 years of age through the enforcement activities” (§ 22952, subd. (a)) therein described, including “random, onsite sting inspections at retail sites” {id., subd. (c)). The Legislature’s requirement of DHS “enforcement activities” in the STAKE Act plainly indicates it does not intend section 308 to be an exclusive device.

As SYA points out, Lucky in its briefing treats the STAKE Act as if its effect were to make DHS an additional public enforcer of Penal Code section 308. But section 308 makes no reference to DHS and DHS has no power under the STAKE Act (or any other statute) directly to enforce section 308. Thus, by their own terms, section 308 and the STAKE Act simply coexist, but not because either statute incorporates the other. Rather, the two enactments coexist because conduct “subject to either a criminal action . . . or to a civil action” (§ 308, subd. (a)) under section 308 is also subject to other, cumulative state laws, including the STAKE Act.

Lucky cites Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 403 [20 Cal.Rptr.2d 164] (Bravo Vending) for the proposition that “the regulatory field preempted by section 308 is that of the penal—i.e., both criminally and civilly proscribed—aspects of the sale of cigarettes to minors.” {Ibid.) At issue in Bravo Vending was whether Penal Code section 308 preempts a city ordinance that banned vending machine sale of cigarettes. While it may be that “the Legislature intended to preempt all local government regulation of the subject matter of section 308” (Bravo Vending, supra, 16 Cal.App.4th at p. 400), such would have no necessary consequence for our purposes, as neither the UCL nor this action is “local government regulation,” and preemption is not an issue. Moreover, to the extent Bravo Vending is relevant, it aids SYA, not Lucky. That the Legislature meant section 308 to be the exclusive means of combating sales of tobacco to minors is belied by its failure to preempt local legislation like the vending machine ban the court in Bravo Vending held “does not intrude into the field of regulation occupied by section 308” (Bravo Vending, supra, 16 Cal.App.4th at p. 413).

Nor can the notion of Penal Code section 308 ’s exclusivity be reconciled with the Legislature’s enactment of restrictions on tobacco promotion such as the tobacco use prevention provisions, Health and Safety Code section 104350 et seq., and Health and Safety Code section 118950, subdivision (b), which bans giving free cigarette samples on public sidewalks and in other locations.

Plainly, the mere fact the Legislature has enacted penal laws concerning minors and tobacco does not impliedly repeal any UCL remedy. “Notwithstanding Section 3369 of the Civil Code [providing that “[n]either specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, except in the case of nuisance or as otherwise provided by law”], specific or preventive relief may be granted to enforce a penalty, forfeiture, or penal law in a case of unfair competition.” (§ 17202.) The UCL affords both “specific” and “preventive” relief, restitution being an example of the former (see Civ. Code, § 3367) and an injunction an example of the latter (id., § 3368).

Nor does the Legislature’s failure expressly to preserve any UCL remedy when enacting Penal Code section 308 or the STAKE Act impliedly repeal any part or aspect of the UCL. “The omission to specify or affirm in [the Penal] Code any liability to damages, penalty, forfeiture, or other remedy imposed by law and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does not affect any right to recover or enforce same.” (Pen. Code, § 9.)

It is undisputed that “[c]ivil actions lie in favor of crime victims. Violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1224 [44 Cal.Rptr.2d 197].) We have recognized, moreover, that “even though a specific statutory enforcement scheme exists, a parallel action for unfair competition is proper pursuant to applicable provisions of the Business and Professions Code.” (People v. McKale, supra, 25 Cal.3d at p. 632; see, e.g., Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284, 1299, fn. 6 [22 Cal.Rptr.2d 20] [recognizing right of private plaintiff to sue to enjoin acts made unlawful by the Knox-Keene [HMO licensing] Act]; Children’s Television, supra, 35 Cal.3d at pp. 210-211 [unfair competition action available to remedy cereal adulteration and misbranding, despite existence of criminal penalties under Sherman Law]; Rubin v. Green, supra, 4 Cal.4th at p. 1204 [unfair competition action proper to remedy improper solicitation of litigation clients, notwithstanding existence of “additional sanctions against attorney solicitation” available to “the State Bar and prosecutorial authorities”].)

The unfair competition law, moreover, states that “[u]nless otherwise expressly provided, the remedies or penalties provided by this chapter [i.e., ch. 5, Enforcement, Bus. & Prof. Code, §§ 17200-17209] are cumulative to each other and to the remedies, or penalties available under all other laws of this state.” (§ 17205, italics added.) Thus, even were we to conclude (contrary to our previous discussion) that Penal Code section 308 and the STAKE Act are a comprehensive scheme for combating teen smoking, we would still confront the fact that in neither of these provisions is it “expressly provided” that remedies under the UCL and those statutes are not cumulative to each other.

The term “ ‘expressly’ means ‘in an express manner; in direct or unmistakable terms; explicitly; definitely; directly.’ ” (City & County of San Francisco v. Western Air Lines, Inc. (1962) 204 Cal.App.2d 105, 120 [22 Cal.Rptr. 216]; accord, Webster’s New Internat. Dict. (3d ed. 1981) p. 803.) We agree with amicus curiae CDAA that, in order to conclude an enforcement “scheme” comprising Penal Code section 308 and the STAKE Act impliedly repeals the UCL’s broad express standing provision, we would have to read the word “implicitly” into section 17205 or read the word “expressly” out of it. Our office, of course, “is simply to ascertain and declare” what is in the relevant statutes, “not to insert what has been omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858.) We are not authorized to insert qualifying provisions not included, and may not rewrite the statute to conform to an assumed intention which does not appear from its language. (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 [267 Cal.Rptr. 569, 787 P.2d 976].)

As neither Penal Code section 308 nor the STAKE Act expressly provides otherwise, we conclude the remedies or penalties provided by the UCL are cumulative to the remedies or penalties available under those statutes.

Our conclusion is reinforced by the observation that, when the Legislature has desired to limit UCL remedies, it has “expressly provided” (§ 17205) for such limitation. For example, the Rosenthal-Roberti Item Pricing Act provides that its remedies “are the exclusive remedies available to any person, state or local agency or law enforcement official.” (Civ. Code, § 7104.) Penal Code section 186.11, which provides penalties for patterns of related felony conduct involving fraud or embezzlement, states that “two separate actions against the same defendant and pertaining to the same fraudulent or unlawful acts may not be brought. . . pursuant to this section and Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code [i.e., the UCL].” (Id., subd. (/).) Similarly, the California Residential Mortgage Lending Act forbids penalties and fines thereunder “if a licensee demonstrates that it has paid a civil monetary penalty or fine for the same act or transaction, as a violation of Section 17200 or 17500 of the Business and Professions Code . . . .” (Fin. Code, § 50510; see also Health & Saf. Code, § 42400.6 [providing “[a] fine or monetary penalty specified . . . may be collected either under [certain] provisions of this code, or under that chapter [i.e., the UCL] of the Business and Professions Code, but not under both.”]) Neither Penal Code section 308 nor the STAKE Act contains a similar express limitation on UCL remedies.

We need not decide in this case whether section 17205’s statement that UCL remedies are cumulative to others “unless expressly otherwise provided” necessarily precludes the Legislature from ever impliedly repealing any aspect of UCL standing. For present purposes, we merely conclude Lucky has not overcome, in this case, the strong presumption against implied repeal (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 419) of the UCL. That is, Lucky fails to demonstrate that Penal Code section 308, even when considered in light of the STAKE Act, is “irreconcilable” (People v. Hazelton, supra, 14 Cal.4th at p. 122) with the UCL’s broad express standing provision. Still less has Lucky shown that, either alone or in light of the STAKE Act, section 308 and the UCL are “ ‘ “clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” ’ ” (14 Cal.4th at p. 122.)

3. Policy

Lucky argues a private UCL action predicated on Penal Code section 308 threatens to put the public prosecutor’s discretionary decision-making within the influence or control of an interested party. Lucky cites People v. Eubanks (1996) 14 Cal.4th 580, 599 [59 Cal.Rptr.2d 200, 927 P.2d 310], but Eubanks, involving private financial contributions to a public prosecution, is not apposite. The UCL does not diminish any public prosecutor’s powers or prerogatives under section 308 or alter DHS authority and responsibility under the STAKE Act.¹⁰ Lucky cannot explain how either party’s actions with respect to this lawsuit could in any way interfere with public prosecutors proceeding under section 308 or with the DHS’s “primary responsibility for enforcement” (§ 22952, subd. (c)) of the STAKE Act. SYA, a private plaintiff, simply has no involvement in any criminal prosecution.

Lucky suggests this action creates the “offensive” possibility that a prosecutor would reap an inappropriate financial benefit, but SYA has no affiliation with any governmental agency and, in any event, requests that “defendants jointly and severally pay restitution to the State of California not to SYA.¹¹ SYA also seeks its costs, “including a reasonable attorney fee.” Lucky alludes to allegations that SYA is making use of the UCL as a cynical means of generating attorney fees. For its part, SYA alleges it brings this action in the public interest and insists its corporate status is simply a symbolic statement of willingness to “work diligently to accomplish a result” and that it does not expect to make a profit. Where the truth lies as to these matters is not an issue on review before this court.

Trial courts, of course, are empowered to inquire into the bona fides of private lawsuits, including this or any private UCL action. Code of Civil Procedure section 128.7 provides that the filing of a pleading certifies that, to the attorney or unrepresented party’s “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the pleading is not being presented “primarily for an improper purpose,” the claims, defenses and other legal contentions therein are “warranted,” and the allegations and other factual contentions “have evidentiary support.” (Id., subd. (b).) If these standards are violated, the court can impose an appropriate sanction sufficient to deter future misconduct, including a monetary sanction. (Id., subds. (c), (d).) Further, under Code of Civil Procedure section 1021.5, whether or not plaintiff’s counsel is entitled to any attorney fees and, if so, what constitutes a “reasonable” fee, depends entirely upon whether SYA ultimately is, by the trial court in the first instance, adjudged “a successful party in an action resulting in the enforcement of an important right affecting the public interest.” (See generally, Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499 [63 Cal.Rptr.2d 118].) Any incentive to file inappropriate cases solely to obtain attorney fees presumably may be minimized by strictly applying the standards of that section and section 128.7.

Most fundamentally, as previously discussed, SYA is not suing under, or to enforce, Penal Code section 308 or the STAKE Act. Rather, SYA seeks to enforce the UCL by means of restitution and an injunction¹² forbidding Lucky to continue selling cigarettes to children. Enforcing the UCL in this manner, SYA impliedly contends, would advance the policy of discouraging unfair competition by leveling the playing field on which Lucky competes with other, law-abiding, retailers. As we have stated, the UCL embodies “the policy of permitting members of the public to police the spectrum of ‘unfair competition.’ ” (Rubin v. Green, supra, 4 Cal.4th at p. 1201.) Without regard to whether (or to what degree) SYA’s action, as a factual matter, advances such worthwhile ends, we agree with SYA the fact a UCL action is based upon, or may even promote the achievement of, policy ends underlying section 308 or the STAKE Act, does not, of itself, transform the action into one for the “enforcement” of section 308.

Amicus curiae the State of California warns that our permitting SYA to predicate its UCL action on Penal Code section 308 will encourage “vigilante justice.” More generally, Lucky suggests public confidence in the judicial system will be undermined if private plaintiffs are permitted to maintain UCL actions predicated on violations of the Penal Code. Citing People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 [218 Cal.Rptr. 24, 705 P.2d 347] (invalidating a contingent fee for a city nuisance-abatement lawyer), Lucky argues that public confidence in the judicial system will be strained if what Lucky characterizes as “private bounty hunters” are permitted to bring UCL actions based on violation of section 308. Lucky asserts that the “essential neutrality” that engenders public confidence in prosecutors is missing when a partisan advocate, seeking a client’s (rather than the public’s) best interest, relies upon a penal statute.

In this connection, Lucky and supporting amici curiae assert that SYA, in order to gather evidence for maintenance of this suit, hired minors to purchase cigarettes in violation of Penal Code section 308, subdivision (b). Questioned at oral argument, plaintiff’s counsel acknowledged no illegality and asserted various private organizations concerned about minors’ tobacco use have conducted tobacco purchase “sting” operations, sometimes supplying the results to law enforcement agencies. Amicus curiae State of California, however, expresses general concern that we not validate “sting” actions conducted under other than STAKE Act auspices.

Even assuming the truth of Lucky’s allegations respecting SYA’s prelitigation practices, it does not follow that our recognizing the viability of this UCL action—at the demurrer stage—would place an imprimatur on illegal practices. Our previous pronouncements make plain a private party has no privilege or immunity to employ illegal means to obtain evidence for a lawsuit. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 212 [271 Cal.Rptr. 191, 793 P.2d 524].) It need hardly be noted that illegal “sting” operations are not inherent to private UCL actions and our countenancing the latter in no way endorses the former.

Lucky also argues that, because the UCL has broad standing and remedial provisions, the operation of which may impact the California business climate, this court should exercise restraint in considering whether to construe the UCL as supporting a private unfair competition action predicated on violation of section 308. We are not persuaded. “As this court said 59 years ago, in rejecting a constitutional challenge to the [Unfair Practices Act], ‘[i]t is not for the courts, except within the limits herein set forth, to determine whether or not the policy of a statute is economically sound or beneficial. That is a matter solely for the legislature.’ ” (ABC Internat. Traders, Inc. v. Matsushita Electric Corp., supra, 14 Cal.4th at p. 1263, quoting Wholesale T. Dealers v. National etc. Co. (1938) 11 Cal.2d 634, 646-647 [82 P.2d 3, 118 A.L.R. 486],)¹³

Lucky may be correct in observing the UCL is broadly cast. Lucky asserts the UCL has lax standing provisions, lacks res judicata effect and carries the potential for multiple, repetitive suits. Lucky’s concerns here are best addressed to the Legislature. Generally, it is not within our province to judge the fundamental wisdom of the UCL’s overall scheme.

As this court has often recognized, “ ‘the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government . . . (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [59 Cal.Rptr.2d 671, 927 P.2d 1175], quoting Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 [47 Cal.Rptr.2d 108, 905 P.2d 1248].) “It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature. ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.’ ” (14 Cal.4th at p. 633, quoting Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365 [5 P.2d 882].) Accordingly, we decline Lucky’s invitation judicially to categorize potential plaintiffs as qualified or unqualified to maintain UCL claims on behalf of the general public. The Legislature has expressly provided that “any person” (§ 17204) may maintain such a suit, and—it need hardly be noted—should the Legislature disagree with our conclusion here, it remains free to provide otherwise.

Disposition

For the preceding reasons, the judgment of the Court of Appeal is affirmed.

George, C. J., Mosk, L, Baxter, J., Kennard, J., and Cottle, J.,* concurred.

1

Except as otherwise noted, unlabeled section references are to this code.

2

Sections 17200 through 17209 do not presently bear a legislatively imposed title or name, and we have variously referred to them. (See, e.g., Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 263 [41 Cal.Rptr.2d 220, 895 P.2d 56] [Unfair Competition Act]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1260 [10 Cal.Rptr.2d 538, 833 P.2d 545] [Unfair Business Practices Act]; Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 395 [6 Cal.Rptr.2d 487, 826 P.2d 730] [Unfair Practices Act].) Most recently, we noted that sections 17200 through 17209 “together are sometimes referred to as the ‘unfair competition law’ ” (ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1252 [61 Cal.Rptr.2d 112, 931 P.2d 290], citing Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 209 [197 Cal.Rptr. 783, 673 P.2d 660]), and we adhere now to that locution.

3

Accordingly, and as “ ‘[m]alters otherwise subject to judicial notice must be relevant to an issue in the action’ ” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1062 [31 , 875 P.2d 73], quoting 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 47.1, p. 1749), we deny Lucky’s request for judicial notice of SYA’s other complaints.

4

The complaint is quite brief (only two pages); amicus curiae CDAA (even while urging affirmance) suggests, citing People v. McKale, supra, 25 Cal.3d at page 635, that Lucky should have challenged it as “inadequate and perfunctory.” CDAA points out that section 308 penalizes only sales of tobacco to minors made “knowingly” (§ 308, subd. (a)) and suggests no allegation of knowledge has been made. We need not address whether the general allegation Lucky’s conduct is “in violation of California Penal Code [section] 308” sufficiently pleads the factual underpinning of that statutory violation, for Lucky, as CDAA points out, based its demurrer entirely on the legal ground that a cause of action could never be stated and did not contest the adequacy of the skeletal complaint.

5

Lucky’s briefing blurs what are really two separate arguments against the existence of a UCL cause of action for violations of Penal Code section 308. On the one hand, whether the UCL requires that the underlying statute have a direct right of action turns primarily on the Legislature’s intent in enacting and amending the UCL. On the other hand, whether the Legislature intended that section 308 not serve as the basis for a UCL action turns primarily on the Legislature’s intent in enacting section 308 and (according to Lucky) the STAKE Act. As will be seen, Lucky fails to demonstrate that either aspect of relevant legislative intent deprives plaintiffs of standing to maintain the present action.

6

We note a divergence of opinion on the question presented among public officers charged with enforcing the UCL. The CDAA, while not styling its brief as “in support of’ either party, takes a substantive position parallel to SYA’s. CDAA argues that private parties have standing to supplement public UCL enforcement, that UCL remedies are cumulative to others and that UCL remedies may redress penal violations.

7

Lucky’s counsel at oral argument went so far as to suggest that Penal Code section 308 “expressly” bars private standing to maintain UCL actions based on section 308. In fact, neither section 308 nor the STAKE Act contains any express reference to the UCL or to unfair competition. Section 308 provides that whosoever sells, gives or furnishes tobacco to a minor “is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney” (§ 308, subd. (a)), but, conspicuously, does not state that such persons are subject only to such actions or that such persons are not subject to actions under other applicable statutes.

8

The prohibition on furnishing tobacco to minors was added to the Penal Code in 1891. (Historical Note, 48 West’s Ann. Pen. Code (1988 ed.) foil. § 308, p. 388.) As noted, the modem UCL first appeared, in 1933, as an amendment to former Civil Code section 3369. (See Note, supra, 30 Hastings L.J. at p. 706, and fn. 5.) The STAKE Act was enacted in 1994. (Stats. 1994, ch. 1009.) Thus, to the extent Lucky relies on the STAKE Act, whether alone or with respect to its effect when combined with that of Penal Code section 308 (but not, strictly speaking, to the extent Lucky relies on section 308 alone), Lucky’s argument follows the contours of implied repeal. (See In re Thierry S., supra, 19 Cal.3d at p. 744.) At oral argument, Lucky’s counsel characterized the argument as one of “harmonization” rather than implied repeal. The same general mies of construction apply regardless of which characterization is adopted. “Whenever possible ... we must reconcile statutes and seek to avoid interpretations which would require us to ignore one statute or the other . . . .” (Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7 [128 Cal.Rptr. 673, 547 P.2d 449].)

9

Just prior to oral argument, plaintiff requested judicial notice of Assembly Bill No. 1394 (1997-1998 Reg. Sess.) (expanding exemptions to Fair Packaging and Labeling Act “slack fill” restrictions; signed into law Oct. 5, 1997) and Assembly Bill No. 1295 (1997-1998 Reg. Sess.) (bill to enact requirements for persons requesting UCL monetary remedies; re-referred to committee May 20, 1997). Simple citations to such published materials would have sufficed (see Mangini v. R.J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1064); nevertheless, as relevant to our observation the Legislature has rejected recent proposals to restrict UCL standing, we grant plaintiff’s request. (Evid. Code, § 452, subd. (c) [“[o]fficial acts”].)

10

In fact, the UCL to some extent actually enhances the Attorney General’s ambit of operation; he or she may intervene in a private UCL action like this one, in order to pursue the section 17206 penalties available only to government plaintiffs (or for any other reason). A private plaintiff’s remedial ambit is, by comparison, limited. If the Attorney General chooses not to intervene and seek section 17206 penalties, a private plaintiff obviously cannot recast a private UCL action so as to implicate them.

11

We previously have observed: “ ‘[T]he laws against unfair business practices were drafted in large part to prevent a wrongdoer from retaining the benefits of its illegal ácts.’ ” (ABC Intemat. Traders, Inc. v. Matsushita Electric Corp., supra, 14 Cal.4th at p. 1270.) Under the UCL, a court may “restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.” (§ 17203.) SYA’s complaint includes a request for “restitution” to be paid to the State of California. Lucky emphasizes the size of SYA’s request; SYA “concedes that its estimate of restitution contained in its prayer is erroneous, and if given the opportunity will amend that prayer to omit any statement as to amount of restitution.” SYA has not named the state as a party, nor has Lucky complained of the omission. As noted, the state appears before us as amicus curiae. We express no opinion on the appropriateness of SYA’s prayer for “restitution” to be paid to the state. The cause comes before us at the demurrer stage and “a demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562 [55 Cal.Rptr.2d 465].)

12

As the issue is not before us on demurrer, we need not decide whether, on remand, if SYA proves to the fact finder’s satisfaction the elements of its UCL cause of action, it may or may not qualify, in light of all relevant considerations, for an actual award of injunctive relief.

13

Amicus curiae the California Chamber of Commerce (CCC) requests we judicially notice a 1992 publication of the Council on California Competitiveness, but makes no attempt to relate that publication to any issue properly before us. As “ ‘[m] alters otherwise subject to judicial notice must be relevant to an issue in the action’ ” (Mangini v. R.J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1062, quoting 2 Jefferson, Cal. Evidence Benchbook, supra, § 47.1, p. 1749), we decline this portion of CCC’s request. CCC further requests we judicially notice: (1) a 1995 background study of the UCL commissioned by the California Law Revision Commission; (2) section 874A, comment (h) of the Restatement Second of Torts; and (3) a 1996 report of the Commerce Committee of the United States Senate concerning the Fair Packaging and Labeling Act. Although simple citations to such readily available published materials would have sufficed, to the extent they contain relevant materials we grant these portions of CCC’s request. (Evid. Code, § 452, subd. (c) [“[official acts”]; see Mangini v. R.J. Reynolds Tobacco Co., supra, 1 Cal.4th at p. 1064.) Finally, CCC requests we judicially notice, as examples of potential conflict between the UCL and federal law, a superseded Court of Appeal opinion discussing questions of UCL standing, and the petition for review in another case, Sampson v. Combe (Cal.App.) S056464 (rev. denied Nov. 20, 1996). Our review of the Court of Appeal’s decision in this action does not implicate any question related to the supremacy of federal law, but as the requested items are already part of our files, we grant this portion of CCC’s request. (Evid. Code, § 452, subd. (d).)

Presiding Justice of the Court of Appeal, Sixth District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.