Filed 11/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LANA SIEU NGU, B302296
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC585417)
v.
CITY BAIL BONDS, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David S. Cunningham, III, Judge; and Marc R.
Marmaro, Judge. Affirmed.
Keiter Appellate Law and Mitchell Keiter for Defendants
and Appellants.
Influential Law and Van Nghiem for Plaintiff and
Respondent.
________________________________________
Plaintiff Lana Sieu Ngu sued bail agents Mylinh Kha and
Ethan Kha, doing business as City Bail Bonds, for restitution
under California’s unfair competition law (UCL) (Bus. & Prof.
Code, §§ 17200, et seq.) based on defendants’ unlawful
solicitation of bail. 1 After a bench trial, the trial court ruled in
plaintiff’s favor, awarding her $38,666 in restitution. On appeal,
defendants argue the trial court erred in finding defendants
unlawfully solicited bail from plaintiff in violation of California
Code of Regulations, title 10, section 2079. Section 2079 prohibits
bail agents from soliciting bail from individuals other than the
arrestee, her immediate family, her attorney, or a person
designated in writing. 2 Defendants also argue the trial court
erred in finding their conduct caused plaintiff economic injury.
We affirm.
1 Because defendants have the same last name, we refer to
them by their first names for the sake of clarity. No disrespect is
intended.
2 California Code of Regulations, title 10, section 2079
provides in full, “No bail licensee shall solicit bail except in
accordance with Section 2079.1 and from: (a) An arrestee;
(b) The arrestee’s attorney; (c) An adult member of the arrestee’s
immediate family; or (d) Such other person as the arrestee shall
specifically designate in writing. Such designation shall be
signed by the arrestee before the solicitation, unless prohibited by
the rules, regulations or ordinances governing the place of
imprisonment. If so prohibited, it may be signed after release of
the arrested to ratify a previous oral designation made by the
arrestee.” The parties do not discuss the last sentence of the
regulation, nor do we.
2
FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, plaintiff hired Thuc Ngoc Pham as a
temporary employee at plaintiff’s store in downtown Los Angeles.
Two months later, the police arrested plaintiff for selling
fireworks and Pham for possession of fireworks. Plaintiff called
defendants for assistance with posting her bail. Two days later,
plaintiff posted bail through appellant City Bail Bonds and was
released from custody.
On the day of plaintiff’s release, defendant Mylinh
telephoned plaintiff and suggested that plaintiff post the bail of
plaintiff’s employee, Pham, to incentivize Pham not to testify
against plaintiff. In the civil trial plaintiff stated that Mylinh
advised her that if plaintiff “did not secure a bond for Ms. Pham,
[] there was a danger that Ms. Pham might testify against”
plaintiff. Plaintiff refused.
The following day, Mylinh called plaintiff again and
repeated her advice to post Pham’s bail. After plaintiff refused
for the second time, Mylinh said she would call Robert Hsu,
plaintiff’s former attorney, to “ask his opinion about [whether
plaintiff] should bail [Pham] out or not.”
Mylinh called plaintiff the next day and said she had
arranged an appointment for plaintiff to meet with Hsu. Plaintiff
agreed to the meeting. When she arrived at Hsu’s office, Mylinh
and Ethan Kha were already present. Plaintiff testified Hsu
“insist[ed]” that plaintiff should bail out Pham to prevent Pham
from testifying against her. Hsu and defendants warned plaintiff
that she faced eight to ten years in prison if she were found
guilty. As Hsu would later testify, he told plaintiff during the
meeting that Pham was “going to talk whether she’s inside or
out, but if you bail her out, as she’s been requesting, at the very
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least . . . she’ll be somewhat grateful for that. And that the police
will not have easy access to her while in jail.”
Plaintiff told defendants she did not have the money to post
Pham’s bail which had been set at $500,000. Plaintiff testified
Mylinh told her that, to bail out Pham, plaintiff would have to
pay an 8 percent fee, in other words $40,000. In plaintiff’s words:
“I got scared, you know, but I don’t have money.” After plaintiff
expressed hesitation, Mylinh suggested plaintiff pay only $20,000
up front. Plaintiff relented, responding “ ‘I will try to borrow
some money.’ ” Plaintiff signed a bail bond agreement the
following day. Plaintiff would eventually pay defendants a total
of $38,666 for Pham’s bail.
Pham would later plead no contest to possession of
“unaltered dangerous fireworks” (Health and Saf. Code, § 12700,
subd. (b)(3)) and was sentenced to three years’ probation and 14
days in jail. Plaintiff pled no contest to possession of a
“destructive device” (Pen. Code, § 18710, subd. (a)) and was
sentenced to five years’ probation and eight days in jail.
In November 2015, plaintiff sued defendants for restitution
of the amounts she paid to bail out Pham. The operative
complaint alleged, among other claims, a violation of the UCL.
At the close of trial, she amended her UCL claim to allege that
the underlying violation of law was California Code of
Regulations, title 10, section 2079. 3
The court held a bench trial in August 2018, and found
defendants had violated section 2079 by soliciting payment of
Pham’s bail from plaintiff. The court entered judgment for
3 All future undesignated section references are to the
California Code of Regulations.
4
plaintiff on her UCL claim, awarding $38,666 in restitution, plus
costs and attorney’s fees.
Defendants timely appealed.
DISCUSSION
1. Relevant Bail Bond Regulations
This appeal involves the interpretation of three provisions
of the California Code of Regulations, title 10 – sections 2079,
2079.1 and 2080. In relevant part, section 2079 prohibits bail
agents from soliciting bail “except . . . from: (a) An arrestee;
(b) The arrestee’s attorney; (c) An adult member of the arrestee’s
immediate family; or (d) Such other person as the arrestee shall
specifically designate in writing . . . .”
Section 2079.1 provides, “Any solicitation of an arrestee
himself pursuant to Section 2079 (a) shall be only after a bona
fide request for bail services has been received from the arrestee
or from a person specified in Section 2079 (b) or (c).”
Section 2080 provides that, “No bail licensee shall negotiate
concerning bail, except with (A) A person specified in Section
2079; (B) Any other person who without previous solicitation on
the part of the bail licensee has requested the bail licensee’s
services.”
Defendants’ contentions require us to interpret these
regulations, a question of law that we review de novo. (See
Young v. Fish and Game Com. (2018) 24 Cal.App.5th 1178
[interpreting California Code of Regulations de novo]; Combs v.
Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242,
1253 [“We review the trial court’s interpretation of statutes and
regulations de novo.”].)
Rules of “statutory construction govern our interpretation
of regulations promulgated by administrative agencies.” (Hoitt v.
5
Department of Rehabilitation (2012) 207 Cal.App.4th 513, 523.)
Accordingly, we consult and apply traditional statutory
interpretation principles. “ ‘To determine the Legislature’s intent
in interpreting these statutory provisions, “[w]e first examine the
statutory language, giving it a plain and commonsense meaning.”
[Citation.] We do not consider statutory language in isolation;
instead, we examine the entire statute to construe the words in
context. [Citation.] If the language is unambiguous, “then the
Legislature is presumed to have meant what it said, and the
plain meaning of the language governs.” [Citation.]’ ” (Crayton v.
FCA US LLC (2021) 63 Cal.App.5th 194, 203.)
2. The Trial Court Correctly Interpreted Section 2079
Defendants argue the trial court erred in interpreting
section 2079 to prohibit their solicitation of plaintiff to post
Pham’s bail. According to defendants, when read in conjunction
with section 2080, section 2079 permits a bail agent to negotiate
a third party’s bail with an arrestee who has previously
requested that bail agent’s services. The argument continues
that, because plaintiff concededly had requested defendants’
services for herself, then defendants were lawfully permitted to
negotiate with plaintiff about Pham’s bail. The problem with this
argument is that it is not what the regulations provide.
Defendants hang their construction hat on that part of
section 2080 permitting bail agents to “negotiate” bail with a
person “who without previous solicitation on the part of the bail
licensee has requested his services.” Defendants assert that this
provision “expand[s] an arrestee’s requested contact with a bail
agent to encompass discussion of a co-arrestee’s bail (for the
benefit of the arrestee).” A facial review of section 2080 dooms
this argument. First of all, we observe that section 2080 deals
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with negotiation, section 2079 with solicitation. Even if we were
to treat negotiation and solicitation as substantially synonymous,
the balance of section 2080 is of no assistance to defendants. 4
Under defendants’ interpretation, a bail agent may
circumvent the solicitation prohibitions in section 2079 whenever
there is a co-arrestee. Once an arrestee (plaintiff) initiates
contact with a bail agent, that agent is then free to negotiate with
the arrestee, not only about that arrestee’s bail, but also bail for
any co-arrestee (Pham). Because “co-arrestee” is not mentioned
in section 2080, defendants’ argument essentially is that once a
bail agent has lawful contact with an arrestee, he or she may
solicit for the payment of anyone else’s bail. We find nothing in
the language of the statute that supports defendants’
interpretation. The facts of this case show the skullduggery
defendants’ interpretation would authorize.
Under the plain language of section 2079, a bail bond agent
may solicit bail only from an arrestee, her immediate family, her
attorney, or any other person designated in writing. To the
extent defendants ask us to interpret the provision as authorizing
a bail bond agent to solicit bail from the arrestee on behalf of a
third party such as a co-arrestee, section 2079.1 negates that
interpretation. Under section 2079.1, the bail bond agent must
4 “Negotiation,” in general, is “a consensual bargaining
process in which the parties attempt to reach agreement on a
disputed or potentially disputed matter.” (NEGOTIATION,
Black’s Law Dictionary (11th ed. 2019).) “Solicitation,” by
contrast, is “the act or an instance of requesting or seeking to
obtain something.” (Id., SOLICTATION.) These definitions
suggest the term “negotiation” involves a bargaining process that
has already begun, and “solicitation” addresses the circumstance
when a new effort is initiated.
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first receive “a bona fide request for bail services” from the
arrestee or the arrestee’s family member or attorney before
soliciting bail from the arrestee. The record is devoid of any
evidence that suggests Pham, her family or attorney asked
defendants to contact plaintiff to arrange for bail. The evidence
is to the contrary. And we see nothing in the statute that
supports defendants’ position that once plaintiff asked
defendants to arrange her own bail, the agent was given free
statutory rein to solicit plaintiff and ask her to post Pham’s bail.
We conclude that defendant’s conduct runs afoul of both the
language of the regulations and their purpose. As our colleagues
in Division Six of this court explained in People v. Dolezal (2013)
221 Cal.App.4th 167, 174 (Dolezal), the regulations are intended
to “protect recent arrestees against harassment, intimidation,
overreaching, annoyance or invasions of privacy by bail agents
clamoring for their business.” 5 The record here shows that is
5 Dolezal held that the section 2079.1 did not violate the
First Amendment to the United States Constitution. (Dolezal,
supra, pp. 168-169.) Defendants discuss Dolezal in some detail
but do not claim that section 2079.1 is unconstitutional.
Defendants argue that Dolezal is helpful to their position
because the court expanded the list of individuals a bail agent
may solicit to include “friends.” The Court of Appeal did use the
word “friends” on occasion in reference to section 2079.1.
(Dolezal, supra, 221 Cal.App.4th at p. 176.) But “friends” is not
mentioned in the statute. At best, the court’s reference might
have been to section 2079 which allows solicitation of “(d) Such
other person as the arrestee shall specifically designate in
writing.” There is nothing in the record that Pham in writing
designated plaintiff as a person who could be contacted about
bail. Equally to the point, defendants acknowledged plaintiff did
not consider Pham a friend. She was an employee.
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exactly what defendants did – their high powered tactics
eventually overcame plaintiff’s will. This conduct included the
suggestion that Pham would likely offer favorable testimony in
plaintiff’s criminal trial, thus raising significant criminal
violations of its own. (See Pen. Code, § 127 [suborning perjury];
§ 136.1 [dissuading a witness]; § 137, subd. (c) [influencing
testimony by bribe and other means].)
3. Restitution Under the UCL
Defendants contend the court erred in holding them liable
for restitution under the UCL because plaintiff did not establish
causation or suffer economic injury. 6
In a private action under the unfair competition law, the
only monetary remedy available is restitution. (Clark v. Superior
Court (2010) 50 Cal.4th 605, 613; see Bus. & Prof. Code, § 17203.)
To obtain such relief, a plaintiff must establish she suffered
economic injury “as a result of” the unfair business practice.
(Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323, 326.)
We review a factfinder’s implied finding of causation for
substantial evidence. (See Milton v. Perceptual Dev. Corp. (1997)
53 Cal.App.4th 861, 867 [“A trial court’s finding on the causation
issue will be affirmed so long as it is supported by substantial
evidence.”].)
Defendants acknowledge plaintiff did not consider bailing
out Pham before Mylinh advised her to do so. Defendants argue
6 Defendants also fault the trial court for failing to make an
express finding of causation and economic injury, but do not cite
to any requirement that a trial court must make express findings
on these elements when ordering restitution under the unfair
competition law.
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that “even without Mylinh’s warning, plaintiff would have
received this information” from Hsu. By “this information”
defendants refer to “Mylinh’s admonition” about “the possibility
of Pham’s adverse testimony” should plaintiff not post bail on
Pham’s behalf. While arguing that Hsu’s advice established
independent causation, defendants also admit that Mylinh
arranged plaintiff’s meeting with Hsu. In short, the record
established that plaintiff bailed out Pham in response to Mylinh’s
illegal solicitation of Pham’s bail from her. That Mylinh’s
solicitation was generally confirmed by Hsu did not create an
independent, superseding cause, attenuating Mylinh’s
solicitation. Substantial evidence supported the finding that
defendants’ violation of section 2079 resulted in plaintiff paying
defendants for Pham’s bail.
Defendants argue that plaintiff did not establish economic
injury because in exchange for paying Pham’s bail, she “received
Pham’s freedom (and silence) in exchange.” A quid pro quo:
plaintiff got something that could have been of real value in
return for the unlawful solicitation, so restitution is
unwarranted. At oral argument, defendants’ counsel attempted
to walk back the argument that the benefit to plaintiff was an
actual promise that Pham would withhold evidence from the
police. According to counsel, “It’s not as if my client said, here,
Pham, here’s $10,000, keep quiet and lie to the police . . . . They
said to respondent if you don’t bail her out, there’s probably a
greater possibility that she will inculpate you in the crime,” as if
the latter were perfectly acceptable.
Counsel attempted to analogize what happened here to an
insurance policy which the insured never had the opportunity to
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use. 7 In support of this angle, defendants cite to Medina v. Safe-
Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105
(Medina), where the Court of Appeal found that a plaintiff who
purchased an insurance policy from an unlicensed insurer had
not lost money as a result of the unfair competition because he
received an enforceable policy. (Id. at p. 112; see also Peterson v.
Cellco Partnership (2008) 164 Cal.App.4th 1583, 1591 [no
economic injury where plaintiffs received the benefit of their
bargain].) Unlike Medina, where the plaintiff sought out the
insurer, and never claimed he did not want the insurance policy
“in the first place” (Medina, p. 114), here, plaintiff resisted
Mylinh’s entreaties until her will was overcome by Mylinh and
Hsu.
There is no serious doubt that plaintiff suffered economic
loss when she paid for Pham’s bail, and we refuse to attribute
any value to intangible benefits defendants claim she “received”
in return. We do not accept defendants’ offer to “hold [plaintiff]
to her bargain” of “receiving Pham’s freedom (and silence) in
exchange” for paying for Pham’s bail. Stated more sharply, we
refuse to enforce a contract, the purpose of which was at a
minimum to violate California law and may have been to suborn
perjury. A contract must have a lawful purpose (Civ. Code,
§ 1550), and this does not. (See Stockton Morris Plan Co. v.
California Tractor & Equipment Corp. (1952) 112 Cal.App.2d
684, 690 [“ ‘agreements which, though legal when standing by
themselves, are merely steps intended for the accomplishment of
7 Counsel’s “insurance” remark was one of several
statements he made at oral argument that suggested paying
someone’s bail in exchange for favorable testimony was generally
acceptable.
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an illegal object will be declared illegal. . . . Indeed, the mere
tendency of an agreement to promote unlawful acts may render it
illegal as against the policy of the law.’ ”]; Fewel & Dawes, Inc. v.
Pratt (1941) 17 Cal.2d 85, 92].)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J
MOOR, J.
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