Ashegian v. Beirne
Filed 6/20/13 Ashegian v. Beirne CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARC
ASHEGIAN,
Plaintiff and Appellant,
v.
JAMES G. BEIRNE
et al.,
Defendants and Respondents.
B245028
(Los Angeles County
Super. Ct. No. BC480403)
APPEAL
from a judgment of the Superior Court of
County, Kevin C. Brazille, Judge. Affirmed.
Joel
Bander for Plaintiff and Appellant.
Stocker
& Lancaster and Michael J. Lancaster for Defendants and Respondents.
introduction
Plaintiff and appellant Marc Ashegian
appeals from the judgment entered after the trial court sustained a general
demurrer to the complaint he filed against defendants and respondents James G.
Beirne, the Law Offices of James G. Beirne, Paul Mendoza Allen and the Law
Offices of Paul M. Allen. Ashegian’s
complaint alleged a cause of action under Business and Professions Code section
6158.4,
based on internet advertising by respondents that allegedly violated State Bar
Act regulations (§§ 6158, 6158.1, and 6158.3) governing the content of
electronic media advertising for legal services. The court sustained the demurrer on the
ground that the complaint failed to allege that Ashegian previously had
submitted a complaint regarding the allegedly unlawful advertisements to the
State Bar and otherwise complied with the State Bar review procedures set forth
in section 6158.4. On appeal, Ashegian
contends that the plain language of the statute excuses California residents from following the State
Bar review procedures before filing a civil
enforcement action. We conclude that
neither the plain language of the statute nor the relevant legislative history
supports Ashegian’s interpretation, and we affirm the judgment.
factual and procedural background
Ashegian filed a complaint against
respondents in superior court alleging a “civil enforcement action†pursuant to
section 6158.4, subdivision (e), contending that respondents’ internet
advertising for their legal services violated sections 6158 (barring electronic
advertising that, taken as a whole, is false, misleading, or deceptive), 6158.1
(creating a rebuttable presumption that certain types of messages are false,
misleading, or deceptive), and 6158.3 (requiring that particular disclosures be
included if an electronic advertisement portrays a result in a particular
case).
The complaint alleged that respondent
Allen maintained a “banner ad†on the website associated with the newspaper
Filipino-American community in Los Angeles County.
According to the complaint, when an internet user clicked on the banner
ad, he or she was directed to respondent Beirne’s web page instead, which
Ashegian alleged constituted a deceptive act.
The complaint further alleged that Beirne’s web page featured a video of
an unidentified woman making false, misleading or deceptive statements of
support for the Beirne law office.
Ashegian sought $5,000 fines against respondents for each allegedly
deceptive broadcast as well as attorneys fees.
Two weeks later, Ashegian amended his
complaint to state that following service of the original complaint on
respondents, internet users who clicked on the banner ad for Allen were no
longer routed to Beirne’s web page. Instead,
users were directed to Allen’s single-page website, which stated, “We are a
federally designated debt relief agency,†language which Ashegian alleges does
not satisfy the requirements set forth in 11 United States Code section 528,
subdivisions (a)(3) and (4), (b)(1). The
complaint further alleged that a blog posting by Allen falsely stated that
Allen’s firm had been handling bankruptcy cases for over a decade, when in fact
Allen was a new admittee in his mid-twenties.
Respondents demurred to the amended
complaint on the grounds that (1) it failed to state facts sufficient to
constitute a cause of action against respondents because no complaint regarding
the advertisements at issue was first filed with the State Bar, as required by
section 6158.4; (2) Ashegian failed to exhaust all administrative remedies; (3)
he lacked standing to sue; (4) the complaint failed to allege damages; (5) it
was uncertain; and (6) it failed to comply with California Rules of Court, rule
2.112 by failing to specifically plead who was suing whom.
The trial court sustained the demurrer
on the ground that the complaint failed to allege compliance with the mandatory
administrative procedures set forth in section 6158.4, subdivision (a),
beginning with the requirement that a complaint be filed with the State
Bar. Further, even if the State Bar
review procedure did not apply, the complaint failed to allege that Ashegian
gave respondents 14 days’ notice before filing an action, as required by
section 6158.4, subdivision (d). The
court denied leave to amend because, in opposing the demurrer, Ashegian failed
to show that the complaint could be amended to show compliance with the
administrative procedures.
Ashegian timely appealed from the
judgment dismissing the case.
discussion
Ashegian contends that the trial court
erred in sustaining the demurrer to the amended complaint for failure to allege
compliance with the State Bar review procedures set forth in section
6158.4. However, the plain meaning of
section 6158.4 as well as consideration of the relevant legislative history
supports the trial court’s conclusion that Ashegian was required to comply with
those State Bar review process set forth in this statute as a condition
precedent to any civil enforcement action.
“When reviewing a judgment dismissing
a complaint after a successful demurrer, we assume the complaint’s properly
pleaded or implied factual allegations are true, and we give the complaint a
reasonable interpretation, reading it in context. [Citation.]
We also consider judicially noticeable matters.†(Campbell
v. Regents of University of California (2005) 35 Cal.4th 311, 320 (
I.
Language of Section 6158.4
The State Bar Act (§ 6000 et
seq.) was first amended in 1993 to add regulations on advertising for legal
services. (§§ 6157-6159.2.) At that time, the Legislature adopted
provisions prohibiting false, misleading or deceptive statements in such
advertising, and prohibiting particular types of advertisements, such as
guarantees, unidentified spokespersons, and impersonations without proper
disclosures. (§§ 6157.1-6157.7,
added by Stats. 1993, Assem. Bill No. 208 (1993-94 Reg. Sess.).) The lone enforcement mechanism for the
violation of these provisions was provided in former section 6157.5, now found
in section 6159, which states: “The
court shall report the name, address, and professional license number of any
person found in violation of this article to the appropriate professional
licensing agency for review and possible disciplinary action.†The statute did not provide for a private
right of action for violations of the advertising regulations.
In 1994, the State Bar Act was again
amended, in part to add regulations with respect to legal advertising
specifically via electronic media, namely television, radio, and computer
networks. (§ 6157, subd. (d).) Of particular interest here, section 6158.4,
prescribes the procedures to be followed by persons claiming a violation of
sections 6158, 6158.1, or 6158.3, special regulations proscribing particular
content in electronic media advertising for legal services.
unambiguous, but they have conflicting interpretations of the statute.
Section 6158.4 provides as
follows: “(a) Any person claiming a violation of Section
6158, 6158.1, or 6158.3 may file a complaint with the State Bar that states the
name of the advertiser, a description of the advertisement claimed to violate
these sections, and that specifically identifies the alleged violation. A copy of the complaint shall be served
simultaneously upon the advertiser. The
advertiser shall have nine days from the date of service of the complaint to
voluntarily withdraw from broadcast the advertisement that is the subject of
the complaint. If the advertiser elects
to withdraw the advertisement, the advertiser shall notify the State Bar of
that fact, and no further action may be taken by the complainant. The advertiser shall provide a copy of the
complained of advertisement to the State Bar for review within seven days of
service of the complaint. Within 21 days
of the delivery of the complained of advertisement, the State Bar shall
determine whether substantial evidence of a violation of these sections exists. The review shall be conducted by a State Bar
attorney who has expertise in the area of lawyer advertising.
“(b)(1) Upon a State Bar determination that
substantial evidence of a violation exists, if the member[
or certified lawyer referral service withdraws that advertisement from
broadcast within 72 hours, no further action may be taken by the complainant.
“(2)
Upon a State Bar determination that substantial evidence of a violation
exists, if the member or certified lawyer referral service fails to withdraw
the advertisement within 72 hours, a civil enforcement action brought pursuant
to subdivision (e) may be commenced within one year of the State Bar
decision. If the member or certified
lawyer referral service withdraws an advertisement upon a State Bar
determination that substantial evidence of a violation exists and subsequently
rebroadcasts the same advertisement without a finding by the trier of fact in
an action brought pursuant to subdivision (c) or (e) that the advertisement
does not violate Section 6158, 6158.1, or 6158.3, a civil enforcement action
may be commenced within one year of the rebroadcast.
“(3)
Upon a determination that substantial evidence of a violation does not
exist, the complainant is barred from bringing a civil enforcement action
pursuant to subdivision (e), but may bring an action for
subdivision (c).
“(c)
Any member or certified lawyer referral service who was the subject of a
complaint and any complainant affected by the decision of the State Bar may
bring an action for declaratory relief in the superior court to obtain a
judicial declaration of whether Section 6158, 6158.1, or 6158.3 has been
violated, and, if applicable, may also request injunctive relief. Any defense otherwise available at law may be
raised for the first time in the declaratory relief action, including any
constitutional challenge. Any civil
enforcement action filed pursuant to subdivision (e) shall be stayed pending
the resolution of the declaratory relief action. The action shall be defended by the real
party in interest. The State Bar shall
not be considered a party to the action unless it elects to intervene in the
action.
“(1)
Upon a State Bar determination that substantial
evidence of a violation exists, if the complainant or the member or
certified lawyer referral service brings an action for declaratory relief to
obtain a judicial declaration of whether the advertisement violates Section
6158, 6158.1, or 6158.3, and the court declares that the advertisement violates
one or more of the sections, a civil enforcement action pursuant to subdivision
(e) may be filed or maintained if the member or certified lawyer referral
service failed to withdraw the advertisement within 72 hours of the State Bar
determination. The decision of the court
that an advertisement violates Section 6158, 6158.1, or 6158.3 shall be binding
on the issue of whether the advertisement is unlawful in any pending or
prospective civil enforcement action brought pursuant to subdivision (e) if
that binding effect is supported by the doctrine of collateral estoppel or res
judicata.
“If, in that declaratory relief
action, the court declares that the advertisement does not violate Section
6158, 6158.1, or 6158.3, the member or lawyer referral service may broadcast
the advertisement. The decision of the
court that an advertisement does not violate Section 6158, 6158.1, or 6158.3
shall bar any pending or prospective civil enforcement action brought pursuant
to subdivision (e) if that prohibitive effect is supported by the doctrine of
collateral estoppel or res judicata.
“. . .
“(d)
The State Bar review procedure shall apply only to members and certified
referral services. A direct civil
enforcement action for a violation of Section 6158, 6158.1, or 6158.3 may be
maintained against any other advertiser after first giving 14 days’ notice to
the advertiser of the alleged violation.
If the advertiser does not withdraw from broadcast the advertisement
that is the subject of the notice within 14 days of service of the notice, a
civil enforcement action pursuant to subdivision (e) may be commenced. The civil enforcement action shall be
commenced within one year of the date of the last publication or broadcast of
the advertisement that is the subject of the action.
“(e)
Subject to Section 6158.5,[
a violation of Section 6158, 6158.1, or 6158.3 shall be cause for a civil
enforcement action brought by any person residing within the State of
California for an amount up to five thousand dollars ($5,000) for each
individual broadcast that violates Section 6158, 6158.1, or 6158.3. . . .
“. . .
“(h)
Amounts recovered pursuant to this section shall be paid into the Client
Security Fund maintained by the State Bar.
“(i)
In any civil action brought pursuant to this section, the court shall
award attorney’s fees pursuant to Section 1021.5 of the Code of Civil Procedure
if the court finds that the action has resulted in the enforcement of an
important public interest or that a significant benefit has been conferred on
the public.
“(j)
The State Bar shall maintain records of all complainants and complaints
filed pursuant to subdivision (a) for a period of seven years. If a complainant files five or more unfounded
complaints within seven years, the complainant shall be considered a vexatious
litigant for purposes of this section.
The State Bar shall require any person deemed a vexatious litigant to
post security in the minimum amount of twenty-five thousand dollars ($25,000)
prior to considering any complaint filed by that person and shall refrain from
taking any action until the security is posted.
In any civil action arising from this section brought by a person deemed
a vexatious litigant, the defendant may advise the court and trier of fact that
the plaintiff is deemed to be a vexatious litigant under the provisions of this
section and disclose the basis for this determination.
“(k)
Nothing in this section shall restrict any other right available under
existing law or otherwise available to a citizen seeking redress for false,
misleading, or deceptive advertisements.â€
II.
Statutory Interpretation
Ashegian contends that section 6158.4
requires only residents of states other
than California to go through the State Bar administrative review process
set forth in the statute, and thus he contends that he did not need to comply
with that process because he is a California resident. The interpretation of section 6158.4 is a
question of first impression to which we apply the standard rules of statutory
interpretation: “Our fundamental task in
interpreting a statute is to determine the Legislature’s intent so as to
effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation,
but in the context of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result
in absurd consequences the Legislature did not intend. If the statutory language permits more than
one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy. [Citations.]â€
(Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) The proper interpretation of a statute is a
question of law which we review de novo.
(Burden v. Snowden (1992) 2
Cal.4th 556, 562.)
A.
Ashegian contends that, while
subdivision (a) of section 6158.4 provides that any person “
describing a violation of sections 6158, 6158.1, or 6158.3 (§ 6158.4, subd. (a), italics added),
subdivision (e) states that such a violation “shall be cause for a civil enforcement action brought by any person
residing within the State of California . . .†(§ 6158.4, subd. (e),
italics added). Based on this language,
he argues that California residents are exempt from the State Bar review
requirements and instead may directly file civil enforcement actions without
first complying with the State Bar procedures.
However, considering the statute as a whole as we must (
Cal.4th 272, 276), Ashegian’s interpretation does not withstand scrutiny.
Subdivisions (a) through (d) of
section 6158.4 set forth a procedure for State Bar review of complaints about
electronic media advertising by attorneys and certified lawyer referral
services that allegedly violates sections 6158, 6158.1, or 6158.3. In providing that any person “may†file a
complaint with the State Bar about such a violation, subdivision (a) merely
describes the legal recourse that individuals have with respect to advertising
that they believe violates the electronic advertising regulations. If the advertiser voluntarily withdraws the
advertisement from broadcast within nine days and notifies the State Bar of
that fact, “no further action may be taken by the complainant.†(§ 6158.4, subd. (a).) If the advertiser does not initially withdraw
the advertisement, and the State Bar review results in the determination that
“substantial evidence of a violation of these sections exists,†the advertiser
has yet another opportunity to withdraw the advertisement within 72 hours of
the determination and to thus prevent any further action by the
complainant. (§ 6158.4, subd.
(b)(1).) The complainant is also barred
from bringing a civil enforcement action pursuant to subdivision (e) if the
State Bar review concludes that substantial evidence of a violation does
subsequently brings a declaratory relief action and the court declares that the
advertisement violates section 6158, 6158.1, or 6158.3, and the advertiser
broadcasts the advertisement following that decision. (§ 6158.4, subds. (b)(3), (c)(2).) If the State bar determines that substantial
evidence of a violation exists and the advertiser fails to withdraw the advertisement
within 72 hours, a civil enforcement action pursuant to subdivision (e) may be
commenced. (§ 6158.4, subd.
(b)(2).) Subdivision (d) clarifies that
the State Bar review procedure applies only to advertisements by “members†(the
definition of which includes law firms (see § 6157, subd. (a)), and
certified lawyer referral services, and that direct civil enforcement actions
pursuant to subdivision (e) may be maintained against other advertisers if such advertisers do not withdraw their
advertisement from broadcast after being given 14 days’ notice. (§ 6158.4, subd. (d).)
It is within the context of these
preceding provisions that we must construe the language of subdivision (e),
which provides in pertinent part that “a violation of Section 6158, 6158.1, or
6158.3 shall be cause for a civil enforcement action brought by any person
residing within the State of California.â€
(§ 6158.4, subd. (e).)
Although subdivision (e) provides that only residents of California may
bring a civil enforcement action, this does not mean that the limitations on
the right to bring such an enforcement action, as set forth in the preceding
subdivisions, do not apply to California residents. Rather, the rights of California residents to
bring a civil enforcement action under subdivision (e) are necessarily
qualified by the preceding subdivisions that relate to it and refer to it.
The purpose of section 6158.4 is
evident from its plain language: to
establish a State Bar screening procedure for complaints about electronic media
advertising by “members†and certified lawyer referral services and to afford
these groups multiple opportunities to withdraw from broadcast offending
advertisements before any punitive action can be taken. Beirne and Allen and their respective law
offices qualify as “members†and accordingly, section 6158.4 required Ashegian
to submit a complaint to the State Bar and to comply with the other
requirements of that statute as a prerequisite to any civil enforcement action
pursuant to subdivision (e) of that section.
Because Ashegian’s complaint failed to allege compliance with these
review procedures, he failed to state a claim for a violation of sections 6158,
6158.1, or 6158.3.
B.
We further note that the legislative
history of section 6158.4 does not support Ashegian’s strained interpretation
of the statute.
title="">[6] Nothing in that history suggests a
legislative intent to require only non-residents of California to comply with
the State Bar review procedures while allowing California residents
unrestricted use of the private right of action against advertisers. Rather, the history demonstrates an intent by
the Legislature to restrict the
private right of enforcement in order to deter frivolous lawsuits against legal
advertisers.
The legislative findings included in
the preamble to the statute explain the particular need for regulation with
respect to electronic media advertising for legal services. (Assem. Bill. No. 3659, approved by Governor,
September 21, 1994 (1993-1994 Reg. Sess.) § 1.) The findings state that although lawyer
advertising is subject to First Amendment protection, advertisement by way of
electronic media, which is “uniquely pervasive and intrusive,†has received the
most limited First Amendment protection.
(Id. at § 1(b),
(c).) Further, because “[t]he right to
practice law is a ‘privilege burdened with conditions’†(id. at § 1(a)) and the public has a need for accurate and
truthful information about legal services (id.
at § 1(e)), the legislature believed it appropriate to adopt special
regulations governing such advertising.
The legislative history demonstrates
that the legislature grappled with the need to take measures to protect the
public against the danger of false and misleading electronic advertising for
legal services without encouraging frivolous lawsuits that could have a
chilling effect on attorneys’ protected speech.
The original bill introduced in the Assembly provided that any member
who violates section 6158, 6158.1, or 6158.3 “shall be liable in a civil action
brought by either the State Bar or any person residing within the State of
California. . . .†(Assem. Bill No. 3659
(1993-1994 Reg. Sess.) as introduced Feb. 25, 1994.) However, opponents questioned whether a
private right of action should be allowed at all, because the right would be
subject to abuse by “competitors, zealots and headhunters who wish to wage
vendettas against advertising lawyers.â€
(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3659 (1993-1994
Reg. Sess.) May 27, 1994.) The “State
Bar screening†of complaints was proposed in the Senate Committee on the
Judiciary as a means of deterring frivolous lawsuits, along with safe harbors
for advertisers who withdrew the allegedly offending electronic
advertisements. (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 3659 (1993-1994 Reg. Sess.) May 27, 1994.) The bill was amended in the Senate to include
these protective safeguards that appear in the statute as enacted. (Sen. Amend. to Assem. Bill No. 3659
(1993-1994 Reg. Sess. Aug. 22, 1994.)
Further, the Legislative Counsel’s Digest was amended so that instead of
stating, “This bill would create a procedure for administrative investigation
of complaints filed with the State Bar against members of the State Bar and
certified lawyer referral services, and
for civil enforcement by any person†(Sen. Amend. to Assem. Bill No. 3659
(1993-1994 Reg. Sess. Aug. 22, 1994), it ultimately stated, “This bill would
create a procedure for administrative investigation of complaints filed with
the State Bar against members of the State Bar and certified lawyer referral
services, and for civil enforcement, as
provided.†(Sen. Amend. to Assem.
Bill No. 3659 (1993-1994 Reg. Sess. Aug. 25, 1994; Legis. Counsel’s Dig.,
Assem. Bill No. 3659 (1993-1994 Reg. Sess.).)
Thus, by the time of the bill’s passage, it had been amended to restrict
the right of civil enforcement in order to deter frivolous lawsuits against
members and certified attorney referral services.
Ashegian has not cited anything in the
legislative history to support his interpretation that the Legislature did not
intend for California residents to be subject to the State Bar review
requirements. Such a large exemption
would not square with the Legislature’s discernable intent to restrict the use
of the private right of action against members and certified lawyer referral
services to instances where substantial evidence of a violation has already
been determined to exist. Accordingly,
despite being a California resident, Ashegian was obligated to comply with the
review procedure set forth in section 6158.4 as a prerequisite to filing any
civil action against respondents, and, and his failure to allege such
compliance dooms his civil complaint.
III.
Inapplicability of Exhaustion of
Administrative Remedies Doctrine
Ashegian asserts that the trial court
implicitly applied the exhaustion of administrative remedies doctrine in
finding that his complaint was insufficient for failure to allege that he had
complied with the State Bar review process.
The exhaustion of administrative remedies doctrine provides that “‘where
an administrative remedy is provided by statute, relief must be sought from the
administrative body and this remedy exhausted before the courts will
act.’†(Campbell, supra, 35 Cal.4th at p. 321.) Ashegian contends that several exceptions to
the exhaustion doctrine apply here and excuse his failure to comply with the
State Bar review steps. In particular,
he alleges that “(1) the administrative remedy does not afford a complainant
damages and attorney’s fees while the judicial remedy does provide them . . .
(2) the statute lacks the required clearly defined machinery for the
submission, evaluation, and resolution of complaints [and] lacks procedures for
adequate notice, a fair right to be heard, and a decision by an impartial trier
of fact . . . and (3) the statute provides alternative remedies.â€
Ashegian correctly identifies
recognized exceptions to the doctrine requiring exhaustion of administrative
remedies. (See City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49
Cal.4th 597, 600-610 [doctrine inapplicable when the administrative remedy is
inadequate or it would be futile to seek an administrative remedy];
(2005) 133 Cal.App.4th 1169, 1177 [“To constitute an internal or administrative
remedy requiring exhaustion before filing suit, ‘“[t]here must be ‘clearly
defined machinery’ for the submission, evaluation and resolution of complaints
by aggrieved parties.â€â€™ [Citation.] This procedure must include adequate notice
of the proposed administrative action, a fair right to be heard, and a decision
rendered by an impartial trier of fact.â€]; McKee
v. Bell-Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1240 [“‘“[W]here a
statute provides an administrative remedy and also provides an alternative
judicial remedy the rule requiring exhaustion of the administrative remedy has
no application if the person aggrieved and having both remedies afforded him by
the same statute, elects to use the judicial one.â€â€™â€].) However, his argument that the administrative
remedies doctrine and these exceptions come into play in this case is
misplaced.
Section 6158.4 does not purport to
establish an administrative “remedy.â€
Instead, the statute establishes a mechanism for State Bar screening of
complaints about allegedly misleading electronic advertisements, whereby the
State Bar merely has the initial authority to determine whether “substantial evidence
of a violation of these sections exists†(§ 6158.4, subd. (a)) such that a
private right of action may be pursued by the California resident who brought
the complaint (assuming the advertiser does not withdraw the advertisement).
process is intended to curtail the use of the new private right of action
against advertisers created by subdivision (e) of section 6158.4, to avoid
frivolous lawsuits that will burden attorney’s First Amendment rights to
advertise. It is thus nonsensical for
Ashegian to argue that he should be able to circumvent the screening process
because it is merely a screening process and the State Bar has not been given
the authority to impose full remedies or to conduct a hearing.
In sum, Ashegian’s complaint is
deficient for failure to allege compliance with the State Bar review process
established in section 6158.4 for alleged violations of sections 6158, 6158.1,
and 6158.3.
disposition
The judgment is
affirmed. Respondents shall recover
their costs and attorneys fees on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J. MANELLA, J.
name="_ftn1" title="">[1] All subsequent undesignated code
references are to the Business and Professions Code.
name="_ftn2" title="">[2] Because Ashegian does not argue on
appeal that the trial court should have granted him leave to amend his
complaint, we do not reach that issue.
