Filed 9/8/20 Abbott Laboratories v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ABBOTT LABORATORIES et al.,

Petitioners,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE, ex rel. TONY RACKAUCKAS, as Orange County District Attorney,

Real Party in Interest.

D072577

(Orange County Super. Ct. No. 30-2016-00879117-CU-BT-CXC)

ORIGINAL PROCEEDINGS in mandate. Kim G. Dunning, Judge. Petition denied.

Kirkland & Ellis and Michael John Shipley, Jay P. Lefkowitz, Adam T. Humann and Yosef Mahmood for Petitioners Teva Pharmaceuticals USA, Inc., Duramed Pharmaceuticals Sales Corp., Inc. and Barr Pharmaceuticals, Inc.

Munger, Tolles & Olson and Jeffrey I. Weinberger, Stuart N. Senator and Blanca F. Young for Petitioners AbbVie Inc. and Abbott Laboratories.

Horvitz & Levy and Jeremy Brooks Rosen, Stanley H. Chen, Janet Y. Galeria, and Heather Lynn Wallace for Chamber of Commerce of the United States of America and California Chamber of Commerce as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Tony Rackauckas and Todd Spitzer, Orange County District Attorneys, Joseph D’Agostino, Assistant District Attorney, Kelly A. Ernby, Deputy District Attorney; Robinson Calcagnie and Mark P. Robinson, Jr., Kevin F. Calcagnie for Real Party in Interest.

Dennis J. Herrera, San Francisco City Attorney, Yvonne R. Meré and Owen J. Clements, Deputy City Attorneys for the City and County of San Francisco; Michael Feuer, Los Angeles City Attorney, Michael M. Walsh and Monica D. Castillo, Deputy City Attorneys; Mara W. Elliot, San Diego City Attorney, Mark D. Ankcorn, Kathryn Turner, Kristine Lorenz, Deputy City Attorneys; Richard Doyle, San Jose City Attorney, Nora Frimann, Assistant City Attorney; James R. Williams, Santa Clara County Counsel, Greta S. Hansen, Danny Chou, Chief Assistants County Counsel, Laura S. Trice, Deputy County Counsel for Santa Clara County; Barbara J. Parker, Oakland City Attorney, Maria S. Bee, Chief Assistant City Attorney, Erin B. Bernstein, Deputy City Attorney; Allison E. Leary and Jennifer B. Henning, for City Attorneys, League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Party in Interest.

Law Office of Valerie T. McGinty and Valerie T. McGinty for Consumer Attorneys of California as Amicus Curiae on behalf of Real Party in Interest.

Xavier Becerra, Attorney General, Nicklas A. Akers, Assistant Attorney General, Michele R. Van Gelderen, Daniel A. Olivas, Hunter Landerholm and David A. Jones, Deputy Attorneys General, for Attorney General as Amicus Curiae.

Mark Louis Zahner and Thomas A. Papageorge for the California District Attorneys Association as Amici Curiae.

Jeffrey S. Rosell, District Attorney, Douglas B. Allen, Assistant District Attorney, for Santa Cruz County District Attorney as Amicus Curiae.

This writ proceeding returns to us on remand from the California Supreme Court, which granted review of our opinion concerning the writ petition of Abbott Laboratories, AbbVie Inc., Teva Pharmaceuticals USA, Inc., Barr Pharmaceuticals, Inc., Duramed Pharmaceuticals, Inc. and Duramed Pharmaceuticals Sales Corp. Petitioners challenged a trial court order denying their motion to strike portions of the Orange County District Attorney’s operative complaint brought under the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.) assertedly permitting the District Attorney to seek restitution and civil penalties beyond the geographic boundaries of Orange County. A majority of this court overruled the District Attorney’s demurrer to the writ petition and granted the petition. The Supreme Court granted review, reversed the decision, and remanded for further proceedings consistent with its opinion. (Abbott Laboratories v. Superior Court of Orange County (2020) 9 Cal.5th 642 (Abbott Laboratories).) We now deny the petition.

Reviewing the UCL’s statutory language and purpose, the Supreme Court in Abbott Laboratories holds the law “does not preclude a district attorney, in a properly pleaded case, from including allegations of violations occurring outside as well as within the borders of his or her county.” (Abbott Laboratories, supra, 9 Cal.5th at p. 649.) The court found no indication that in such enforcement actions the Legislature intended to limit civil penalties or restitution to the geographic boundaries of the district attorney’s county. (Id. at p. 658.) The constitutional provisions concerning the respective roles of the Attorney General and district attorneys did not constrain the Legislature from structuring UCL enforcement to permit this result. (Id. at p. 659.)

Abbott Laboratories, supra, 9 Cal.5th 642 mandates that we now deny the writ petition of Abbott Laboratories, AbbVie Inc., Teva Pharmaceuticals USA, Inc., Barr Pharmaceuticals, Inc., Duramed Pharmaceuticals, Inc. and Duramed Pharmaceuticals Sales Corp. and lift the stay entered on September 18, 2017.

DISPOSITION

The petition for writ of mandate of Abbott Laboratories, AbbVie Inc., Teva Pharmaceuticals USA, Inc., Barr Pharmaceuticals, Inc., Duramed Pharmaceuticals, Inc. and Duramed Pharmaceuticals Sales Corp. is denied. Our previous stay of proceedings in the superior court is hereby lifted. Real party in interest Orange County District Attorney is awarded costs in this original proceeding. (Cal. Rules of Court, rule 7.493(a)(1)(A).)

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.