Singsen v. Television Signal Corp.
| Decision Date | 24 June 1998 |
| Docket Number | No. A077075,A077075 |
| Citation | 76 Cal.Rptr.2d 311,64 Cal.App.4th 1437 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 64 Cal.App.4th 1437 64 Cal.App.4th 1437, 98 Cal. Daily Op. Serv. 4955, 98 Daily Journal D.A.R. 7094 Michael SINGSEN et al., Plaintiffs and Appellants, v. TELEVISION SIGNAL CORPORATION et al., Defendants and Respondents. |
Christopher P. Witteman, San Francisco, for Plaintiffs and Appellants.
Coblentz, Cahen, McCabe & Breyer, Richard R. Patch, Susan K. Jamison, Keith Evans-Orville, San Francisco, for Defendants and Respondents.
Daniel E. Lungren, Attorney General, Herschel T. Elkins, Senior Assistant Attorney General, Ronald A. Reiter, Deputy Attorney General, Terence Hallinan, District Attorney, City and County of San Francisco, June D. Cravett, Assistant District Attorney, for Amici Curiae.
Michael Singsen (Singsen) and Carolyn Cooley (Cooley), on behalf of themselves, the general public, and all others similarly situated filed a complaint against Television Signal Corporation, doing business as Viacom Cable (TSC) for failing to provide free cable connection and free wiring for cable services to public buildings in the City and County of San Francisco (City) pursuant to a provision in the franchise ordinance. The trial court sustained the demurrer without leave to amend, and Singsen and Cooley challenge this ruling. Additionally, they challenge the trial court's refusal to award them attorneys' fees pursuant to Code of Civil Procedure section 1021.5.
We conclude that the trial court erred in sustaining the demurrer against the claim of an unfair business practice pursuant to Business and Professions Code section 17200. (All further unspecified code sections refer to the Business and Professions Code.) We affirm the trial court's dismissal of the causes of action for breach of contract as third party beneficiaries and breach of contract. Further, we vacate the trial court's denial of attorneys' fees.
The City and TSC entered into a franchise agreement which was enacted on December 16, 1988 as Ordinance 528-88 (franchise ordinance). The franchise ordinance granted the "right, power, authority, and privilege" to TSC to operate a cable television system in the City "subject to all the terms and conditions of this franchise...." One of the "terms and conditions" of the franchise ordinance was the following: "In order to effectuate public access, Grantee shall provide service to schools, universities, and public buildings at no cost, including free cable connection and subscriber fees."
TSC failed to wire and provide service to schools, universities, and public buildings as required. In December 1994, counsel for Singsen and Cooley contacted the Office of the City Attorney of the City and County of San Francisco (City Attorney) regarding TSC's noncompliance. The City Attorney acknowledged that TSC had not fulfilled its obligations under the franchise ordinance, but it expected to "address this topic within two weeks."
In August 1995, Tele-Communications, Inc. (TCI) announced its plan to acquire the stock of the Viacom subsidiaries which controlled, directly or indirectly, Viacom's cable holdings. This corporate transaction was to result in a change of the ownership of TSC's parent corporation: ownership of the franchise itself would remain with TSC. The City, TSC, and TCI entered into negotiations in October 1995 to amend the franchise ordinance. The negotiations related to a variety of franchise issues, including TSC's wiring of public buildings.
On February 29, 1996, Singsen filed a complaint against TSC for unfair trade practices pursuant to section 17200, breach of contract based on the theory of third party beneficiary, and declaratory relief. Singsen was a member of the City's Telecommunications Policy Committee in the years 1984-1987, consulted with the City Attorney in the drafting of the 1988 franchise ordinance, and is a subscriber of TSC's cable television service.
TSC demurred, and the trial court sustained without leave to amend the demurrer Cooley, a nonsubscribing City employee, joined the lawsuit. Singsen and Cooley filed a second amended complaint on July 30, 1996, and alleged causes of action for a third party beneficiary breach of contract, breach of the contract between TSC and Singsen, and declaratory judgment. They sought declaratory relief, an injunction, restitution, and damages.
to the claim for unfair business practices, and sustained with leave to amend the demurrer to the third party beneficiary and declaratory relief claims. The trial court instructed Singsen to remedy the complaint in the following manner: "In particular, facts conferring a benefit to the general public including the specific provision of the franchise ordinance alleged to be violated which confers a benefit on the plaintiff as a member of the general public."
TSC again filed a demurrer. The trial court sustained the demurrer without leave to amend on August 14, 1996.
In October 1996, the City Attorney and TSC entered into a settlement. The settlement included a release of all claims the City might have against TSC as a result of the nonperformance of the wiring obligations, and a side agreement stating the following: "The City has agreed to cooperate with the company [Television Signal Corporation, now doing business as TCI] in obtaining a dismissal of the Singsen action by including in the Franchise Agreement a provision deleting the previous franchise terms with respect to the obligation to wire public buildings; by defining in the Franchise Amendments the exact extent of the going-forward obligation; by execution of the Mutual Release between Television Signal Corporation and the City concerning past claims; and by indicating its willingness to confirm to the Court, if necessary, the substance of the foregoing agreements."
Singsen and Cooley filed a motion requesting attorneys' fees in the amount of $80,821.34, which the trial court denied on February 13, 1997.
Singsen and Cooley filed a timely notice of appeal and challenge the judgment dismissing the complaint and the denial of their request for attorneys' fees.
The trial court sustained without leave to amend TSC's demurrer to the second amended complaint. When considering an appeal from a judgment of dismissal following the sustaining of a demurrer, we accept the facts pleaded as true. (American Philatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 699, 46 P.2d 135.) The trial court erred if the pleading states a cause of action under any possible legal theory; it abused its discretion if the face of the pleadings shows a reasonable probability the defects could be cured by a properly amended pleading. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1812, 52 Cal.Rptr.2d 650; Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877, 22 Cal.Rptr.2d 819.) We find the trial court erred in sustaining the demurrer against the claim for a violation of section 17200.
In their original complaint, Singsen and Cooley alleged that TSC violated section 17200. Singsen and Cooley maintain that TSC violated both the law and its contract when it failed to comply with the following term of the franchise ordinance: "In order to effectuate public access, Grantee shall provide service to schools, universities and public buildings at no cost, including free cable connection and subscriber fees."
Section 17200 provides the following: "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice...." The unfair trade practice statutes were designed as a broad and flexible tool to deter ongoing wrongful conduct and remedy past wrongful conduct. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 209-210, 197 Cal.Rptr. 783, 673 P.2d 660 (Children's Television ).) However, a "plaintiff alleging unfair business TSC argues that section 17203 only authorizes equitable relief, and the only loss to Singsen and Cooley is a loss of psychic enjoyment. Such an action is for damages, not restitution, and section 17203 does not permit recovery for damages. Singsen and Cooley cannot request declaratory relief and an injunction, TSC maintains, because their claims are moot as a result of the newly negotiated amendments to the franchise agreement. TSC also argues they did not suffer any out-of-pocket loss and cannot receive an award of restitution.
practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. [Citations.]" (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619, 17 Cal.Rptr.2d 708.)
Restitution may be ordered pursuant to section 17203 even if the court does not issue an injunction. (ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1271, 61 Cal.Rptr.2d 112, 931 P.2d 290.) Singsen and Cooley claim they will establish unjust enrichment at trial by showing that TSC profited from failing to wire the public buildings while it collected fees from City subscribers such as Singsen. Although it seems unlikely that Singsen and Cooley will be able to establish grounds for restitution, this is a factual issue and cannot be the basis for a demurrer.
In its brief of amici curiae, the Consumer Law Section of the Attorney General's Office argued that the unfair business claim is moot, because it is based on a repealed ordinance. " '[A] cause of action or remedy dependent on a statute falls with a repeal of the statute, even after the action thereon is pending, in the absence of a saving clause in the repealing statute....' " (Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 275, 55 Cal.Rptr.2d 801, quoting Callet v. Alioto...
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