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has the inherent power, ancillary to its general equity
that any statement referred to in NRS 207.171 has a
In People v. Superior Court of Ventura
Both complaints seek restitution to the
Citations omitted; emphasis added.)
The comparatively limited proof required to establish false or deceptive advertising contrasts sharply with that necessary to prove actionable fraud. to establish fraud
there must be proven:
11! A false representation made by the defen-
reliance Lubbe, supra, at 599, 540 P.28 at 117; accord, Ach v. Finkelstein, 70 Cal. Rptr. 472 (1968). Viewing the question most favorably to respondents, the first three elements have been proven; however, we find no evidence on elements four and five. Onder our decision today, as to false advertising, no purchaser need be produced, or even exist. However, relative to the proposition of actionarie fraud, the record does not reveal who, if any, of the sone nine hundred purchasers were recipients of the deceptive advertising. Not a single purchaser of a *HMR“ parcel was produced at trial, and there is not a shred of evidence showing reliance upon the false, deceptive, or misleading presentations. Similarly, no evidence was proffered showing that all buyers were similarly situated,
and, therefore, what amounts are owed to each.
like evidentiary voids we do not know whether reliance by the purchasers is provable, as some purchasers may have known, as a result of their knowledge and experience, that the representations were false or misleading. Even more fundamentally, no purchaser or representative of a class was joined as a party to the proceeding, and for this reason alone restitution was not an available remedy. More precisely. the court was without the power to enter a judgment ordering an offer of restitution or, correspondingly, reconveyances. Compare, United States v. Parkinson, 240 F.2d 918 (9th Cir. 1956); see also, Kugler, supra (by reason of a price unconscionability common to all transactions, all of the sales contracts were held invalid and unenforceable); Jayhill, supra (holding that as a form of ancillary relief to the
attorney general suit, a court may award restitution to
Although Nevada is a 'notice pleading“ state, our practice is not so liberal as to permit recovery in these circumstances. The court below erred in ordering restitution.
4. Twenty violations of NRS 207.170.
Appellants next challenge the award of civil penalties, contending that the wording of NRS 207.170 'clearly establishes that it is the act of publication and not the extent of that advertising which determines whether one violation, or a number of violations, of false advertising has been comitted." They argue that here only one violation of NRS 207.171 occurred, referring to NRS 207.174 which states in part: "As used in this section, the term 'each violation' includes, as a single violation, a continuous or repetitive violation arising out of the same act.' The 'same act* language requires that there be separate acts involved before a person can be charged with
more than one violation of NRS 207.171.
In the instant case, the court found that the state
ments complained of were made, initially, by a person giving
In Jayhill, supra, the court interpreted similar statutory language and determined the number of violations by the number of victims. There, the defendant made twentyfive separate misrepresentations to each customer in their door-to-door sales of encyclopedias. The Jayhill court imposed the maximum penalty of $2,500 for each violation and
rejected the contention that a violation occurs with each misrepresentation, irrespective of the number of victims. Compare, State v. Ralph Williams' N.W. Chrysler Plymouth, 553 P.28 423 (Wash. 1976) (adopting the one violation per each misrepresentation rule).
In Jayhill, the court described the purpose behind California's false advertising provisions as follows:
"The new civil remedy was added because the injunction
bility in the modern corporate structure.' 507 P. 2d at 1404 n. 3.
Appellants argued that should we follow the Jayhill rationale, and if the alleged misrepresentations had been printed in a newspaper, they would be liable for violations sumbering in the thousands. The Jayhill court was faced with, and, like this court, not concerned with that possibility. The probable impact of the podium presentations, followed by the one-to-one confrontations, is much greater than would be similar statements contained in a newspaper or magazine. On this record, we do adopt the one-violation-per-customer rule announced in Jayhill.
The judgments appealed from are wholly affirmed, with
the exception of that portion ordering Landex to offer restitutior to its purchasers, which restitutionary order is reversed.