People v. Damon

• Citation: 59 Cal.Rptr.2d 504,51 Cal.App.4th 958
• Decision Date: 18 December 1996
• Docket Number: No. C022807,C022807
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 9182, 96 Daily Journal D.A.R. 15,167 The PEOPLE, Plaintiff and Respondent, v. Jeffrey Arter DAMON, Defendant and Appellant.

Page 504

59 Cal.Rptr.2d 504

51 Cal.App.4th 958, 96 Cal. Daily Op. Serv. 9182,

96 Daily Journal D.A.R. 15,167

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Arter DAMON, Defendant and Appellant.

No. C022807.

Court of Appeal, Third District, California.

Dec. 18, 1996.

[51 Cal.App.4th 963] Robert D. McGhie, Chico, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, Herschel T. Elkins, Senior Assistant Attorney General, Ronald A. Reiter, Michael R. Botwin, Deputy Attorneys General, Michael L. Ramsey, District Attorney and Robert W. MacKenzie, Deputy District Attorney, for Plaintiff and Respondent.

SIMS, Acting Presiding Justice.

Defendant Jeffrey Arter Damon, doing business as Autometrics, appeals from a judgment following a court trial in the People's civil action alleging unfair business practices (Bus. & Prof.Code, §§ 17206, 17500) ¹ in defendant's operation of an automotive repair dealership, pursuant to the Automotive Repair Act (§ 9880 et seq.). Defendant contends this action, which followed an administrative proceeding by the Department of Consumer Affairs, was barred by res judicata, the rule against splitting causes of action, and the double jeopardy clause of the federal Constitution. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Although this is an appeal from the civil action, we begin chronologically with the antecedent administrative proceeding which, according to defendant, bars the civil action.

In July 1993, the Chief of the Bureau of Automotive Repair (BAR) of the Department of Consumer Affairs (DCA), represented by the Attorney General's office, filed an administrative accusation against "AUTO METRICS ... JEFFREY DAMON, Owner," alleging the following violations of the Automotive Repair Act, sections 9884.7 and 9884.9: False representations that repair work had been done, failure to give written estimates, charging in excess of estimates, failure to document additional customer authorization for revised estimates, performing unnecessary work, and failure to record odometer readings on work orders. The accusation sought (1) temporary or permanent invalidation of the automotive repair dealer registration issued to Autometrics, Jeffrey Damon, owner, pursuant to section 9884.7, and (2) reimbursement of investigation costs pursuant to section 125.3.

In January 1994, the parties submitted the matter to the administrative law judge (ALJ) upon stipulations. The ALJ issued a proposed decision to place Autometrics on probation for three years, with registration suspended for 14 days, and an order to pay $4,600 in reimbursement for DCA's investigation costs. Autometric's registration was also revoked, but the revocation was stayed for the three year probationary period, and the stay would become permanent and the registration restored if the probationary period was successfully completed without further violation. ²

In May 1994, the interim director of DCA adopted the ALJ's decision, effective August 13, 1994. DCA closed defendant's repair shop for two weeks in September 1994.

On August 11, 1994, the People, represented by the Butte County District Attorney, filed against defendant doing business as Autometrics the civil complaint which is the subject of this appeal. The complaint alleged defendant engaged in unlawful business practices in his operation of his automotive repair dealership. The first amended complaint, which is the operative pleading, alleged unfair competition (§ 17200) and false advertising (§ 17500). The first count, for unfair competition, alleged the same violations of the Automotive Repair Act which were the subject of the administrative proceeding, i.e., failure to provide a written estimate, failure to record odometer readings, falsely stating automotive parts had been replaced, and performing repair work without obtaining customer authorization, in violation of sections 9884.7 and 9884.9. ³ The second count The pleading sought injunctive relief to enjoin further violations, as well as restitution to consumers, civil penalties pursuant to sections 17206 and 17500, and costs of investigation.

alleged false and misleading advertising in that defendant placed an advertisement in the 1993 Pacific Bell Yellow Pages falsely claiming Autometrics was approved by the California State Automobile Association (AAA).

Defendant demurred to the first amended complaint on the grounds of res judicata, the rule against splitting causes of action, and double jeopardy, because the first count of the civil complaint alleged the same misconduct that was the subject of the administrative proceeding.

The trial court took judicial notice of documents from the administrative proceeding but overruled the demurrer, concluding (1) the present action sought civil penalties unavailable in the previous administrative proceeding, which was for revocation of registration, (2) section 17205 ⁴ provides cumulative remedies, and (3) the double jeopardy case relied upon by defendant applied only where the second sanction was grossly disproportionate to the damages caused.

In September 1995, a court trial was held. ⁵ Defendant filed a motion in limine for judgment on the pleadings, revisiting the issues raised on demurrer. The trial court took judicial notice of documents from the administrative proceeding. The trial court denied the motion as to res judicata and splitting causes of action and reserved ruling on the double jeopardy issue.

Following the court trial, the trial court denied the motion for judgment on the pleadings and stated in its ultimate "STATEMENT OF DECISION AND JUDGMENT" in favor of the People:

"... Defendant's motion in Limine for Judgement [sic ] on the pleadings is denied; the court finds that the 3 years probation, two week suspension and two week closure of Defendant's automotive repair business by the Bureau of Automotive Repair, pursuant to the previous administrative proceedings, were not disproportionate and therefore not punitive. Therefore, Defendant could be punished in this action. It was uncontested that the payment of investigative costs in the sum of $4,600.00, pursuant to the previous administrative proceedings, was remedial and that the sanctions imposed in this proceeding are punitive.

"... Defendant is found liable for violating ... section 9884.7(1)(a) [ ⁶] by making a false statement that his business had replaced the head gasket on a [customer's vehicle], which by the exercise of reasonable care, would have been known by Defendant to be untrue and misleading. Defendant is ordered to pay a civil penalty of $750.00 to the Treasurer of Butte County, through the Clerk of this Court, pursuant to ... section 17206(a).[ ⁷ "... Defendant is found liable for violating ... section 9884.9(a) [ ⁸] by performing and charging for repair work completed on [a vehicle] owned by the Bureau of Automotive Repair, without having first obtained authorization for competing [sic ] such work from the authorized Bureau of Automotive Repair representative. Defendant is ordered to pay a civil penalty of $750.00 to the Treasurer of Butte County ... pursuant to ... section 17206(a).

"... Defendant is found liable for violating ... section 9884.7(1)(a) by falsely stating on an automotive repair invoice that a 'spark control unit' had been replaced on a [vehicle] owned by the Bureau of Automotive Repair, a statement, which by the exercise of reasonable care, would have been known by Defendant to be untrue and misleading. Defendant is ordered to pay a civil penalty of $750.00 to the Treasurer of Butte County ... pursuant to ... section 17206(a).

"... Defendant is found liable for violating ... section 17500 [ ⁹] by placing an advertisement in the Pacific Bell Yellow Pages ... representing that his business was 'AAA Approved,' when, in fact, his business was not an AAA approved auto repair facility. If he had exercised reasonable care, Defendant would have known that his business was not AAA approved. This Court finds that the advertisement was placed by Defendant in the Yellow Pages with the intent to induce the public to enter into a contract for goods and/or services. Defendant is ordered to pay a civil penalty of $750.00 to the Treasurer of Butte County ... pursuant to ... section 17206(a).

"... Defendant is ordered to pay a total of $3,000.00 ... in civil penalties to the Treasurer of Butte County....

"... Defendant is ordered to refrain from violating any portion of Article 3 of Chapter 20.3 of the Automotive Repair Act [§ 9880 et seq.] and to refrain from violating ... sections 17200 and 17500 for a period of five years, beginning September 21, 1995...." Each side bore its own costs and attorneys' fees.

Defendant appeals.

DISCUSSION

I. Res Judicata

Defendant contends the first amended complaint was barred by the doctrine of res judicata. We disagree.

"The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and Here, defendant invokes res judicata in its primary aspect of claim preclusion. ¹⁰ Defendant argues the administrative proceeding and the civil action both involved the same "cause of action" and the administrative adjudication operated as a merger, precluding the state from seeking a different remedy for the same cause of action. Defendant further argues res judicata precludes not only claims which were actually litigated but also claims which could have been litigated in the first action, and therefore res judicata also precludes the civil action's second count for false advertising.

                expense in judicial administration."  (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 188, p. 621, original italics.)   The doctrine of res judicata has a double aspect.  "In its primary aspect the doctrine of res judicata [or "claim preclusion"] operates as a

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