Filed 8/22/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
GAMESTOP, INC.,
Petitioner, E068701
v. (Super.Ct.No. RIC1706142)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. John W. Vineyard,
Judge. Petition denied.
Morgan, Lewis & Bockius, Franklin Gowdy, Benjamin Smith and Sharon Smith
for Petitioner.
No appearance for Respondent.
1
Michael A. Hestrin, District Attorney, Elsie J. Farrell and Timothy S. Brown,
Deputy District Attorneys (Riverside), Stephanie A. Bridgett, District Attorney and
Anand B. Jesrani, Deputy District Attorney (Shasta), for Real Party in Interest.
Xavier Becerra, Attorney General, Nicklas A. Akers, Assistant Attorney General,
Michele Van Geldersen, Michael Reynolds, Deputy Attorneys General, and Geoffrey H.
Wright, Associate Deputy Solicitor General, as Amicus Curiae on behalf of Real Party in
Interest.
Mark Zahner and Thomas A. Papageorge, Deputy District Attorney (San Diego),
for California District Attorneys Association as Amicus Curiae on behalf of Real Party in
Interest.
Following an investigation into violations of the Secondhand Dealers Law (SDL),
the People, by and through the District Attorneys of Riverside and Shasta Counties, filed
an action pursuant to Business and Professions Code section 17200 et seq., (Unfair
Competition Law or UCL) to enjoin petitioner GameStop, Inc., (GameStop) against
noncompliance. GameStop filed a motion to remove the action from the County of
Riverside pursuant to Code of Civil Procedure1 section 394, claiming that the district
attorney, as an official elected by the County of Riverside, was a local governmental
entity. The trial court denied the motion, giving rise to this petition for writ of mandate
by GameStop.
1 All further statutory references are to the Code of Civil Procedures unless
otherwise indicated.
2
We issued an order to show cause why the relief prayed for should not be granted.
After considering the arguments in the return, traverse, reply, and the briefs of amici
curiae,2 we deny the petition.
BACKGROUND
We base our opinion on the following operative facts from the return, the traverse,
and the exhibits.3
Following investigations by the Redding Police Department, Shasta District
Attorney’s Office, and law enforcement agencies in Riverside County, the People of the
State of California (real party in interest) filed a law enforcement action under Business
and Professions Code section 17200 et seq., against GameStop, Inc., for violations of the
SDL on April 7, 2017. (Bus. & Prof. Code, §§ 21641, 21628, 21636.) The action was
filed by the District Attorneys of Riverside and Shasta Counties.4
The facts underlying the complaint alleged that GameStop has over 500 stores in
California, and that it uses a buy-sell-trade model, providing customers with an
opportunity to trade in their used consoles, phones, tablets, and other products for store
2The Attorney General of the State of California and the California District
Attorneys Association were granted leave to file briefs as friends of the court.
3Petitioner’s requests for judicial notice, filed July 12, 2017, October 18, 2017
and January 5, 2018, are denied. Real party in interest’s requests for judicial notice, filed
August 10, 2017, October 2, 2017 and October 26, 2017, are also denied.
4 Although the complaint contains an allegation relating to the authority of the
District Attorneys of the Counties of Riverside, Shasta, and Sonoma, the petition and
return refer only to the District Attorneys of Riverside and Shasta Counties.
3
credits that can be applied toward merchandise. To prevent theft and “fencing” of stolen
property, and to recover stolen property for the victims of theft, Business and Professions
Code section 21625 et seq., regulates the purchase and resale of preowned “tangible
personal property” by “secondhand dealers.”
The SDL requires secondhand dealers to report the name, address, and photo
identification of the seller, a complete description of the serialized property, a
certification from the seller that she or he is the owner of the property, and a fingerprint
of the seller. (Bus. & Prof. Code, § 21627, subd. (a).) The secondhand dealer must retain
the “tangible personal property” for a period of 30 days (Bus. & Prof. Code, § 21636),
and produce the property to law enforcement, upon request, within one business day
(Bus. & Prof. Code, § 21636, subd. (c)).
During the time period enumerated in the complaint, GameStop failed to comply
with the reporting, holding, and inspection requirements of the SDL. In Shasta County,
police investigated a burglary involving a video game console that was traded or sold to
GameStop in Redding by the thief; the Redding store was not in compliance with the
SDL. In Riverside County, only two out of 16 stores were in compliance with
requirements for obtaining required customer information, submitting that information to
law enforcement, or holding the traded merchandise. In Contra Costa County, eight out
of 12 stores were noncompliant, and in Tulare County, 50 percent of the stores were
noncompliant.
On May 10, 2017, in lieu of an answer, GameStop filed a motion to transfer the
action based on the provisions of sections 394, subdivision (a), and 397, subdivision (b).
4
The trial court denied GameStop’s motion and denied requests for judicial notice made in
support of the motion.
GameStop then petitioned for extraordinary writ relief. After receiving an
informal response from the People, we issued an order to show cause. The parties have
filed a return and a traverse, which we have now considered along with briefing and a
review of the exhibits. We now deny the petition.
DISCUSSION
GameStop contends that the instant action falls within section 394, subdivision (a),
requiring a change of venue when a county or local agency brings a civil suit in its county
against a nonresident corporate defendant. Its argument is grounded on the assertion that
the District Attorneys for the Counties of Riverside and Shasta have an exclusive
financial interest in the outcome of the suit, making the UCL plaintiff in the underlying
action a “local agency.” We disagree. To explain our reasoning, we first examine the
nature of the of the SDL and the UCL, and then the venue provisions of section 394.
1. The Secondhand Dealers and Unfair Competition Laws.
California law provides a statewide mechanism for licensing, regulating, and
overseeing parties who are secondhand dealers. (Bus. & Prof. Code, § 21625.) The UCL
provides an enforcement mechanism respecting the SDL by permitting the Attorney
General, or a district attorney, or a county counsel, to seek preventive relief to enforce a
penalty, forfeiture or penal law in a case of unfair competition. (Bus. & Prof. Code,
§§ 17202, 17204.) The nature of the UCL and SDL statutory schemes are central to the
5
questions of venue for the action, and whether the district attorney is a plaintiff. Thus, a
review of the relevant provisions of the UCL as it pertains to SDL actions is helpful.
Looking at the legislative intent, the SDL was enacted to “curtail the
dissemination of stolen property and to facilitate the recovery of stolen property by
means of a uniform, statewide, state-administered program of regulation of persons
whose principal business is the buying, selling, trading, auctioning, or taking in pawn of
tangible personal property and to aid the State Board of Equalization to detect possible
sales tax evasion.” (Bus. & Prof. Code, § 21625.)
Secondhand dealers are required to make daily reports after receipt or purchase of
secondhand property to CAPSS.5 (Bus. & Prof. Code, § 21628, subd. (a).) The reports
are made to the Department of Justice of the State of California. (See Bus. & Prof. Code,
§ 21628, subd. (a)(7).) Additionally, all tangible personal property reported by a
secondhand dealer must be retained for 30 days, during which time the chief of police or
sheriff may for good cause, as specified by the Department of Justice, authorize prior
disposition of the property. (Bus. & Prof. Code, § 21636, subd. (a).)
Local laws or ordinances relating to secondhand dealers that are not inconsistent
with the SDL are not prohibited, but no city, county, or city and county, or any other state
agency shall adopt local laws relating to the holding, reporting or identification of coins,
monetized bullion, or commercial grade ingots of gold, silver or other precious metals
5 CAPSS refers to California Pawn and Secondhand Dealer System, a statewide,
uniform electronic reporting system that receives secondhand dealer reports and is
operated by the Department of Justice. (Bus. & Prof. Code, § 21627.5.)
6
(Bus. & Prof. Code, § 21638, subd. (a)), or respecting the identification, holding, or
reporting requirements for the acquisition of tangible personal property, in the ordinary
course of business, by pawnbrokers and secondhand dealers, other than as set forth in the
SDL (Bus. & Prof. Code, § 21638, subd. (b)).
Thus, additional regulation of secondhand dealers by local government is
authorized by the Legislature, so long as it does not exceed the scope permitted by the
SDL. (Malish v. City of San Diego (2000) 84 Cal.App.4th 725, 729.) Local laws that
exceed that scope are preempted by state law. (Ibid.) In this respect, a locality may
require a local license in addition to the state mandated license, but revocation of a local
license on grounds broader than authorized for revocation of a state license is inconsistent
with state policy and therefore preempted. (Collateral Loan & Secondhand Dealers
Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1039.)
Further, it is unlawful for any person to engage in the business of a secondhand
dealer without being licensed. (Bus. & Prof. Code, § 21640.) Applications for licenses
are accepted and granted by the chief of police or sheriff, but before granting a license,
the local authorities must submit the application to the Department of Justice, which also
charges a fee for the license, as well as annual renewals of the license. (Bus. & Prof.
Code, §§ 21641, subd. (a), 21642.5, subd. (a).) The fees are charged to cover the
reasonable regulatory costs to the Department of Justice. (Bus. & Prof. Code, § 21642.5,
subd. (b).)
Finally, a violation of any provision of the SDL is punishable as a misdemeanor,
(Bus. & Prof. Code, § 21645), and “[t]he district attorney or the Attorney General, in the
7
name of the People of the State of California, may bring an action to enjoin the violation
or the threatened violation of any provision” of the SDL. (Bus. & Prof. Code, § 21646.)
Such an action for enjoining violations of the SDL, may be brought under the UCL,
pursuant to Business and Professions Code sections 17202 or 17204. Business and
Professions Code section 17204 authorizes actions for injunctions by the Attorney
General, district attorney, county counsel, and city attorneys, filed in the name of the
People of the State of California. Actions for civil penalties are likewise authorized
under Business and Professions Code section 17206, to be brought in the name of the
People of the State of California by the Attorney General, by any district attorney, by any
county counsel or by any city attorney of a city having a population in excess of 750,000.
(Bus. & Prof. Code, § 17206, subd. (a).)
2. Removal Under Code of Civil Procedure Section 394
GameStop argues that section 394 compels removal and transfer to a neutral
county because the district attorney, a county official, is the plaintiff. Applicability of the
removal statute therefore hinges on whether the plaintiff is the People or the district
attorney. However, as established ante, the district attorney is not a “party” to the
litigation. Pursuant to section 367, every action must be prosecuted in the name of the
real party in interest. This means the plaintiff must possess a substantive right or
standing to prosecute an action. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125
Cal.App.4th 949, 955.)
A district attorney is the public prosecutor, who shall “attend the courts, and
within his or her discretion shall initiate and conduct on behalf of the people all
8
prosecutions for public offenses.” (Govt. Code, § 26500.) A public prosecutor
represents all people, even those accused of violating public law. (People v. Hail (1914)
25 Cal.App.342, 358.) While a district attorney is a county officer in at least a
geographic sense—that is to say, that the exercise of his or her powers as such is limited
territorially to the county for which he has been elected, he or she is also a state officer,
or a part of a political organization which is itself an agent of the state. (Pitchess v.
Superior Court (1969) 2 Cal.App.3d 653, 657, citing Singh v. Superior Court (1919) 44
Cal.App. 64, 65-66; see Galli v. Brown (1952) 110 Cal.App.2d 764, 776.)
When the district attorney files an enforcement action in the name of the People of
the State of California, respecting a statewide law regulating secondhand dealers, he or
she acts in his or her capacity as a state officer. (Pitchess, supra, 2 Cal.App.3d at p. 657.)
But the People of the State of California is the party to the action, in whose name the
district attorney prosecutes a person charged with an offense. (Pen. Code, § 684.) Thus,
the district attorney is not the plaintiff, nor a party to the action, but is simply the legal
representative of the People.
The People of the State of California constitute the party-plaintiff in this UCL
action, the entity with the substantive right and standing to bring the action against
GameStop. (See People v. Parriera (1965) 237 Cal.App.2d 275, 282-283 [victim is not
technically a party to a criminal action as the People in their sovereign capacity are the
sole collective party plaintiff].) It follows, therefore, that an action brought in the name
9
of the People of the State of California, as a party, is not brought by a county, or other
local agency, and the district attorney, as the legal representative, is not a party thereto.6
Section 394, subdivision (a), provides, in pertinent part, that “any action or
proceeding brought by a county, city and county, city, or local agency within a certain
county, or city and county, against a resident of another county, city and county, or city,
or a corporation doing business in the latter, shall be, on motion of either party,
transferred for trial to a county, or city and county, other than the plaintiff, if the plaintiff
is a county, or city and county, and other than that in which the plaintiff is situated, if the
plaintiff is a city, or a local agency, and other than that in which the defendant resides, or
is doing business, or is situated.” A party aggrieved by an order granting or denying a
motion to change the place of trial must seek review by way of a petition for writ of
mandate. (§ 400; Dunas v. Superior Court (1970) 9 Cal.App.3d 236, 240.)
In a petition for writ of mandate brought pursuant to Code of Civil Procedure
section 1085, the petitioner bears the burden of pleading and proving the facts on which
the claim for relief is based. (Code Civ. Proc., § 1109; Evid. Code, § 500; California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153-
6 At oral argument, GameStop noted that because the district attorney’s territorial
jurisdiction is limited to the county in which he or she serves, GameStop faces potential
actions in the other counties within the state where it does business. This is true.
However, the same is true of criminal prosecutions, where a defendant who commits
crimes in several counties is subject to prosecution in each county where a crime has
occurred. The district attorney of each county prosecutes each criminal action in the
name of the People of the State of California. This does not make the district attorney a
party-plaintiff to the action.
10
1154, citing Arwine v. Board of Med. Examiners (1907) 151 Cal. 499, 503, and other
cases.)
A UCL action is brought in the name of the People of the State of California, to
enforce a statewide legislative scheme aimed at reducing theft by regulating secondhand
dealers. In such a situation, an action brought by a district attorney, as a representative of
the People of the State of California, to further the statewide polices of the SDL, are not
actions brought by a county, or city, or county and city, within the meaning of section
394. (Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1788-1789 [in actions
brought under Red Light Abatement Law, prosecuted by district attorneys, the county is
not as much concerned as the people of the state].) The People of the State of California
are not a local agency, within the meaning of subdivision (a) of section 394.
Transfer to a neutral county is not authorized when the governmental body that is
a party to the action is the State of California or any of its agencies, departments,
commissions, or boards, which are exempted from removal provisions. (§ 394,
subd. (b).) GameStop relies on the fact that a district attorney is a county officer to
support its position that the action was “brought by a county, or city and county, a city, or
local agency,” but cites no authority for the proposition that the district attorney is the
plaintiff. Section 394 only applies when the plaintiff or the defendant (the party bringing
the action, or against whom it is brought) is a city, county, city and county, or local
agency. A district attorney is no more a party to the action than counsel for petitioner is a
party to this proceeding in mandate. In any event, having cited no authority to support
this position, we need analyze it no further.
11
As petitioner, GameStop bore the burden of proving that the UCL action was
instituted by a county, or city and county, or city, or a corporation doing business with
one or more of these entities in order to obtain an order for removal or transfer. It did not
succeed in this endeavor where the SDL, its enforcement provisions, and oversight
agency, are statewide in their scope, and where the action was instituted in the name of
the People of the State of California, seeking injunctive relief.
We conclude that the mandatory removal provisions of section 394 are
inapplicable to UCL actions brought by a district attorney to enforce provisions of the
statewide SDL.
DISPOSITION
The petition is denied.
The previously ordered stay is hereby dissolved.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.
12
GameStop, Inc. v. Superior Court
Combined Opinion