Department of Agriculture v. Tide Oil Co.
| Decision Date | 24 January 1969 |
| Parties | The DEPARTMENT OF AGRICULTURE of the State of California, etc., Plaintiff and Appellant, v. TIDE OIL COMPANY, etc., et al., Defendants and Respondents. Civ. 32003. |
| Court | California Court of Appeals Court of Appeals |
Thomas C. Lynch, Atty. Gen., Walter S. Rountree, Asst. Atty. Gen., and Sanford N. Gruskin, Deputy Atty. Gen., for plaintiff and appellant.
Hanna & Morton, Bela G. Lugosi, Los Angeles, for defendants and respondents Tide Oil Co. and A. W. Hane.
Alexander, Inman & Fine, by Gary Goldman, Beverly Hills, for defendants and respondents Lippman.
We are dealing here with four sets of defendants: Tide Oil Company and A. W. Hane; Philsam Petroleum, Inc., doing business as Jimmy's Service Stations; Harry Kelber; and a group of defendants collectively designated as the 'Lippman defendants.'
This is a suit for injunctive relief commenced pursuant to section 20982 of the Business and Professions Code. Plaintiff is the Department of Agriculture of the State of California, acting through the Division of Weights and Measures. Defendants are owners and operators of retail motor vehicle fuel service stations at which gasoline is advertised, offered for sale and sold. Plaintiff seeks to enjoin defendants permanently from displaying certain advertising signs, unless said signs comply with the requirements of sections 20880(b) and 20880(c) of the Business and Professions Code. In addition, plaintiff seeks to enjoin defendant Philsam Petroleum, Inc. permanently from displaying certain price signs on its petroleum dispensing apparatus allegedly in violation of section 20826.5 of the Business and Professions Code.
During the period from June 1964 through May 31, 1965, there was posted at the service station of defendants Tide Oil Co. and A. W. Hane, located at 7385 Santa Monica Boulevard, Los Angeles, at least one of the following signs:
a.
b.
c.
d.
That part of the case relating to the Lippman defendants shows that on various occasions prior to the filing of plaintiff's complaint, and at least as of February 1965 and continuing until the issuance of a preliminary injunction on July 21, 1965, the Lippman defendants displayed signs with language to the following effect at the following stations operated by them:
a. 'WE GIVE 2cents PER GALLON DISCOUNT COUPONS'
(3016 Century Blvd., Inglewood)
b.
c. 'WE GIVE 2cents COUPONS PER GAL.'
(12131 Long Beach Blvd., Lynwood)
d.
(11515 Atlantic Avenue, Lynwood)
Upon issuance of a preliminary injunction restraining the display of the above described signs, the Lippman defendants removed those signs and commenced to display at one or more of their stations signs with words to the following effect: 'WE GIVE DOUBLE DISCOUNT COUPONS.'
Defendant Philsam Petroleum, Inc., doing business as Jimmy's Service Stations, owns and operates motor vehicle fuel service stations at four locations in the communities of Montclair, Pomona, Fontana and Redlands. It also leases motor vehicle fuel service stations under the name Jimmy's Service Station to various persons at five other locations in the communities of Upland, Ontario, Pomona, Rialto and Riverside, under various agreements which permit defendant Philsam to sell all of the motor vehicle fuel dispensed at such service stations. Under these lease agreements, the form, substance and content of all advertising signs located at said premises are determined and controlled by defendant Philsam.
At various times prior to the time of trial of the within action, defendant Philsam displayed, or permitted to be displayed, at one or more of the Jimmy's Service Stations owned, operated, or controlled by it, signs stating as follows:
a. 'SAVE WITH JIMMY'S'
b. 'FREE MONEY WITH PURCHASE'
c. 'CASH BONUS EVERY DAY'
d. 'CASH DISCOUNT HERE'
e. 'SPECIAL TRUCKERS DEAL ASK US'
f. 'AHORRE AQUI' 1
g. 'ASK ABOUT OUR '2' PLAN'
h. 'NO LOWER PRICES IN TOWN'
Defendant Philsam was also engaging in the following practice at each of the above mentioned nine Jimmy's Service Stations operated or controlled by it: setting the price-per-gallon indicators on its pumps for premium gasoline at 34.9cents per gallon, and at the same time maintaining signs on top of its premium pumps which read:
It was also engaging in the same practice with respect to its Ethyl and Regular pumps at each of its stations, except for differences in the prices shown in order to reflect the differences in the grades of gasoline sold.
Defendant Philsam controls or determines what signs are posted at the service station operated by defendant Harry Kelber. At various times prior to the filing of plaintiff's complaint, defendant Kelber displayed or permitted to be displayed at his service station a sign reading as follows: 'ASK ABOUT OUR '2' PLAN.'
The trial court permanently enjoined and restrained defendants Philsam and Kelber from using each of the following advertising signs: 'SAVE WITH JIMMY'S'; 'FREE MONEY WITH PURCHASE'; 'CASH BONUS EVERY DAY'; and 'CASH DISCOUNT HERE.' The court further adjudged that plaintiff was entitled to no other injunctive relief against defendants Philsam and Kelber, and to no injunctive relief whatsoever against the other defendants. Plaintiff appeals from those portions of the judgment adverse to it.
Before reaching the determinative issues in this case, some preliminary matters need to be dealt with. Defendant A. W. Hane contends that the case is moot as to him since there is no reasonable probability that his past advertising practices will recur. He so testified at the trial. 2 The point is without merit since a permanent injunction may be issued where a guilty party retains the means of continuing his transgressions, even though he testifies that he no longer intends to do so. (Wood v. Peffer, 55 Cal.App.2d 116, 124, 130 P.2d 220.) Furthermore, as will appear more fully hereinafter, a determination on the merits is necessary to serve as a guide to the Department of Agriculture in its enforcement of those code sections relating to petroleum advertising. Thus, where as in the present case the issues relate to a matter of public interest and there is a likelihood that the matter will arise again in the future, our courts have refused to consider such issues to be moot. (See Board of Education of City of Los Angeles v. Watson, 63 Cal.2d 829, 48 Cal.Rptr. 481, 409 P.2d 481; County of Madera v. Gendron, 59 Cal.2d 798, 31 Cal.Rptr. 302, 382 P.2d 342, 6 A.L.R.3d 555; Di Giorgio Fruit Corp. v. Dept. of Employment of State of California, 56 Cal.2d 54, 13 Cal.Rptr. 663, 362 P.2d 487; Terry v. Civil Service Commission of City and County of San Francisco, 108 Cal.App.2d 861, 240 [269 Cal.App.2d 151] P.2d 691.) For the same reason, we think that unless there is assurance that all controversy is ended with respect to any of the different types of signs displayed by these defendants, each sign should be construed without regard to whether the issues as to any particular sign have been withdrawn by either party. (See Sun Oil Co. v. Director of Div. on Necessaries of Life, 340 Mass. 235, 237, 163 N.E.2d 276, 278, 89 A.L.R.2d 896.) Secondly, there is some doubt as to whether Business and Professions Code section 20880(b) is in issue since it does not appear that defendants were properly charged with a violation of that section in plaintiff's complaint. Because of the similarity and close relationship this section bears to section 20880(c), we think that a determination on the merits as to the applicability of this section is also necessary. The trial court so concluded.
Statutes relating to advertising the price of gasoline appear in Business and Professions Code, division 8, chapter 7, article 5, sections 20820--20827 and article 8, sections 20880--20895. To resolve the crucial issues in this case requires an analysis and interpretation of certain sections of these articles. All defendants are charged with violation of certain provisions in article 8. Only defendant Philsam is charged with violation of the provisions of article 5. Since SECTION 20880(A) OF ARTICLE 83 evidences a legislative intent that the different articles were not intended to overlap, they will be separately construed.
Focusing our attention on article 8, sections 20880(b) and (c) provide as follows:
'(b) No person shall keep, maintain or display on or near the premises of any place of business in this State any advertising medium, which indicates or shows or advertises the price of gasoline or other motor vehicle fuel sold, offered for sale or advertised for sale from such premises, unless the actual price per gallon of gasoline or other motor vehicle fuel including taxes is also shown on such advertising medium, together with the word or words 'gasoline' or 'motor fuel' and the trade name or brand of the gasoline or other motor vehicle fuel product advertised for sale by such advertising medium.
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