Anyone have Lexis?

[TheBlackTruth]

<font color=darkblue face=tahoma>Ok, i got another one!



"Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." <u>Schomig v. Kaiser, 189 Cal 596.</u>



I need to make sure this is real before I get too excited!



-BT[/color]

[TheBlackTruth]

Weis,



Sorry for the long post below, but I think this is could possibly be another GREAT cite for freedom of travel.

<hr>





In re Bush, 6 Cal.2d 43




I really don't think it's gonna get any clearer than the following

opinion by the Supreme Court of California:
& " The tax is placed upon

those obtaining compensation for the use of the public highways. "
& In

re Bush, 6 Cal.2d 43
___________________
In re Bush, 6 Cal.2d 43


[Crim. No. 3945. In Bank. April 1, 1936.]
In the Matter of the

Application of C. E. BUSH for a Writ of Habeas Corpus.



COUNSEL



E. S. Williams for Petitioner.



U.S. Webb, Attorney-General, and John O. Palstine, Deputy Attorney- General, for Respondent.
OPINION
CURTIS, J.
Petitioner seeks a release on habeas corpus from his detention by the constable of the seventh township, [6 Cal.2d 46] in the county of Kern, state of California. Petitioner was arrested

in said county, pursuant to a warrant of arrest issued upon the filing of a complaint in the justice's court of said township. In the complaint, the petitioner was charged with a violation of the provisions of the California Motor Vehicle Transportation License Tax Act, which is hereinafter referred to

as the License Tax Act of 1933. (Stats. 1933, p. 928.) The complaint set out in detail the manner in which petitioner operated a motor truck upon the highway of the state of California, and charged: "That while and in and for the purpose of performing the services and carrying on the business and operations aforesaid

pursuant to said agreement [hereinafter discussed] said defendant on or about the 18th day of October, 1935, did drive his said truck which had been loaded with products such as aforesaid at said bulk station, and while the same was so loaded, upon the public highway in said seventh township, county of Kern, state

of California, and outside of any incorporated city or town without first obtaining the license for which provision is made in the California Motor Vehicle Transportation License Tax Act, of the state of California, and without carrying or displaying upon said motor vehicle so used any number plate or

emblem for which provision is made in said act, and having failed and neglected and refused to make any return or report as required under said act, and without paying and having failed and neglected and refused to pay any license tax to the state controller of California as required to be paid in said act."
The

following facts appear from the allegations of the complaint: Petitioner is the owner of a certain motor vehicle, consisting of a truck with a tank installed thereon suitable for and used by him in the hauling of gasoline and other refined petroleum products upon the highways of the state. Petitioner, on

November 1, 1934, entered into a written agreement with the Texas Company, a corporation, engaged in the business of producing, refining, manufacturing, selling and dealing in petroleum oil and gas and the products thereof within the state of California. By said written agreement, which is set out in full in the

complaint, the petitioner agreed to become the "agent" of the Texas Company to manage a certain "bulk station" in the city of Taft, California, and to [6 Cal.2d 47] use his own truck in making the necessary deliveries of gasoline and other petroleum products from said bulk station to customers within a certain

specified district. The customers in the territory covered by said agreement consist of automobile or gasoline service stations and business concerns which buy in large quantity gasoline and other petroleum products. Said truck belonging to petitioner is painted in the color, to wit, red, adopted and used

by the Texas Company for painting various structures and equipment used in its business, and on each side of the tank on said truck was painted in letters twelve inches in height the word, "Texaco" which is the trade name of the Texas Company, and on each side of the cab of said truck was painted the legend, "C.

E. Bush, Agent, The Texas Company", and on the back of said tank and on each side of the cab of said truck was painted the trademark of the Texas Company. Under the written agreement with the Texas Company, petitioner's chief duties consist in the selling of the company's products in a prescribed territory

surrounding said bulk station and in delivering the same in his own truck when deliveries were required. For his services the company agreed t o pay him certain commissions upon his sales of gasoline and petroleum products which varied both with regard to the type of product involved and according to whether

or not the product was delivered by petitioner at the bulk station or delivered to the customer by the petitioner in his own truck. For example, he received one cent per gallon for Ethyl gasoline when the sale was made at the bulk station and two cents on such sale when the gasoline was delivered in his own truck; one

cent per gallon for Calpet gasoline when the sale was made to the customer at the bulk station and one and three-fourths cents per gallon when the gasoline was delivered to the customer by truck. In like manner, a higher commission was received by him per gallon of Fire Chief gasoline and kerosene sold and

delivered than for such gasoline or kerosene sold at the bulk station. Certain equipment and facilities at the bulk station consisting of two tanks of twenty thousand gallon capacity each for the storage of gasoline and similar refined products were owned by the Texas Company, including loading platform, warehouse

for the storage of lubricating oils and greases, and certain office equipment, all of which were located on land [6 Cal.2d 48] leased to the Texas Company. It also appears that in addition to soliciting sales for the company, and selling and delivering the products of said oil company, the petitioner herein had

certain other duties in connection with the maintenance of the bulk station in proper order and certain clerical work necessarily involved in the sale of such products and in the collection of the purchase price thereof. Title to the gasoline and petroleum products was never transferred to petitioner, and

immediately upon making collections he banked all such receipts to the account of the Texas Company. In the case of any bad accounts, the only loss sustained by the petitioner was the loss of his commission on such sale, except in the case of unauthorized extension of credit, in which event the petitioner was

perso nally liable for the entire account. Petitioner received in one lump sum compensation figured on the commission basis as set out in the agreement for all of the services furnished and duties performed by him.
Petitioner refused to comply with any of the provisions of said License Tax Act of 1933, claiming

under the set of facts above outlined that he was not an "operator" within the meaning of said act, and that said act had no application to him nor to his transportation operations. In support of his petition for the writ, petitioner advances two main arguments: (1) That the License Tax Act of 1933 applies only

to transportation upon public highways engaged in as a business; that is, by common carrier and by private contract carriers as transportation agencies; and (2) that the License Tax Act of 1933, as applied to the operations of petitioner, is unconstitutional and contravenes provisions of both the state and

federal Constitutions.
[1] The first issue before the court is, therefore, primarily one of statutory construction. The question thus presented is: Does the License Tax Act of 1933 apply solely and exclusively to common carriers and private contract carriers in the business of transporting persons and property

upon the public highway for hire or compensation? Petitioner argues that the act extends only to such carriers, and that in whatever light his transportation operations are viewed, he does not come within the category of a carrier, either common or private contract carrier, and hence the act has no application to him.

It is petitioner's position that a bulk station [6 Cal.2d 49] operator in delivering gasoline and petroleum products is merely an agent or employee in the business of his principal, the oil company, and that such hauling is merely delivery service incidental to that business. If, however, the bulk station

operations be considered the business of the operator himself, petitioner insists it would be the business of a merchant in which the hauling would be but incidental to the whole business of merchandising.
An examination of the exact terminology of the act itself, including both the title of the act, and

the definition of "operator," therein specified as subject to taxation, clearly shows that the act is not limited to "carriers" or those who are engaged in the business of transportation of persons and property. The title to said act is as follows: "An act imposing a license fee or tax for the transportation of persons

or property for hire or compensation upon the public streets, roads and highways in the state of California by motor vehicle." Section 1 of said act provides that: "The word 'operator' shall include all persons, firms, associations and corporations who operate motor vehicles upon any public highway in this state

and thereby engage in the transportation of persons or property for hire or compensation, either directly or indirectly. There can be no doubt, of course, that carriers are included within such terminology. But the very phraseology employed likewise compels the conclusion that the act was not intended to be

limited to such carrier service but was purposely phrased to include in addition other transportation upon the public highways for hire or compensation, directly or indirectly. Compensation for transportation service of either common or private contract carrier is direct compensation, and the very fact that the act

expressly defines an operator as one who operates a motor vehicle for compensation, either directly or indirectly, supports the conclusion that the act was intended to have a wider application than to carriers alone.
It is also most significant that in the title of the act and in the section of the act

defining those persons, firms, associations or corporations taxable, neither the word "carrier", nor the words "in the business of transportation" are to be found. In view of the fact that such words are to be found in a prior statute dealing with the regulation of carriers engaged [6 Cal.2d 50] in the business of

transportation of persons and property for hire (Stats. 1917, p. 330), and are also found in the statutes of other states, the absence of such words would indicate that such limiting words had been purposely avoided in the drafting of said act, and that by refraining from using such limiting words, the legislature

expressed its intention of not circumscribing the scope of the act to those engaged in the business of transportation as carriers.
The fact that subsequent acts enacted in 1935 which are not tax acts but regulatory acts (Stats. 1935, chaps. 223, 312 and 664) deal with the transportation of property

for compensation or hire as a business and contain many terms employing the words "carrier" and "in the business" or "as a business" is not persuasive that the License Tax Act of 1933 was intended to deal solely with transportation operations as a business. Indeed, the very fact that such terms were

deliberately used in the 1935 regulatory acts, and not used in the License Tax Act of 1933, would lead to an opposite conclusion.
It is true that the word "business" appears twice in the License Tax Act of 1933. Under the definition of "gross receipts from operation" (section 1, subdivision d), the act provides

that such receipts shall include all receipts from the operation of such motor vehicle or motor vehicles beginning and ending entirely within this state and a proportion based upon the proportion of the mileage within this state to the entire mileage over which such business is done of gross receipts of such

operator on all business passing through, into or out of this state, or partly within and partly without this state. Section 9 of the act provides that: "If during any calendar year, any operator pays hereunder license taxes which together with all other taxes and licenses, state, county and municipal, upon

the property of such operator used exclusively by him in his business of transporting persons or property for hire or compensation over the public highways of this state, exceed five per cent of the gross receipts from operations of such operator in this state for such calendar year, the difference

between five per cent of such gross receipts and the total amount of such taxes and licenses paid during the calendar year shall be credited on any license taxes thereafter due from such operator under this Act, and [6 Cal.2d 51] the balance shall be refunded to such operator. ..." It is to be noted that this

latter reference is to be found in a section which provides for a refund to be made in the event payments by an operator of other license fees and taxes to the state, county or municipalities upon property used exclusively in the business of transporting persons or property exceeds a certain amount, and is not found

in a section which deals directly with the applicability of the act to such transportation operations. It should be noted, in this regard, that section 12, which deals with penalties to be invoked for the violation of the act, contains not a single word, or term, to indicate that the act is limited to

transportation as a business. The reference to "business", therefore, found in section 9 and subdivision (d) of section 1, in view of the language of the other provisions of the act, is not sufficient in our opinion to compel a conclusion different from that at which we have already arrived; that is, that the act was

not intended to be limited to carrier service but was intended to include in addition other transportation upon the public highways for compensation.
Petitioner contends that the history of California legislation with reference to transportation of persons and property upon the public highways of

the state for hire or compensation supports his position that said License Tax Act of 1933 was intended to apply only to carriers engaged in the business of transportation and was never intended to apply to any operation not within such category. Such conclusion is not, we think, necessarily deducible from the

history of California legislation upon this subject. The history of such legislation discloses two distinct lines of statutes. One line was enacted for the purpose of regulating the business of transportation by motor vehicles of persons or property for hire or compensation upon the public highways. (Stats.

1917, p. 330, and amendments; Stats. 1935, chaps. 223, 312 and 664.) The following cases are pertinent to the subject of the regulation of such transportation operators: Western Assn. of Short Line Railroads v. Railroad Com., 173 Cal. 802 [162 P. 391, 1 A.L.R. 1455]; Frost v. Railroad Com., 197 Cal.

230 [240 P. 26]; Frost &amp; Frost Trucking Co. v. Railroad Com., 271 U.S. 583 [46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457]; Holmes v. Railroad Com., 197 Cal. 627 [242 P. 486]; Haynes v. MacFarlane, 207 Cal. 529 [279 P. 436]; Forsyth v. San [6 Cal.2d 52] Joaquin Light etc. Corp., 208 Cal. 397 [281 P. 620]; Landis v.

Railroad Com., 220 Cal. 470 [31 PaCal.2d 345]. The License Tax Act of 1933 was enacted as a step in the second line, that of certain acts and constitutional provisions which were primarily revenue measures, designed to secure for the state a fair return for the use of the public highways of the state in

transporting persons or property for compensation. (Stats. 1923, p. 706; Stats. 1925, p. 833; Stats. 1927, p. 1708; Stats. 1927, p. 1742; California Const., art. XIII, sec. 15; Pol. Code, sec. 3664aa; Stats. 1933, p. 928.) These enactments have been before the courts of this state in the following cases:

Bacon Service Corp. v. Huss, 199 Cal. 21 [248 P. 235]; In re Schmolke, 199 Cal. 42 [248 P. 244]; Los Angeles etc. Transp. Co. v. Superior Court, 211 Cal. 411 [295 P. 837]; Alward v. Johnson, 208 Cal. 359 [281 P. 389]; People v. Duntley, 217 Cal. 150 [17 PaCal.2d 715]; People v. Lang Transp. Co., 217 Cal. 166 [17

PaCal.2d 721]. An analysis of the legislative history discloses the fact that all the statutes dealing with the regulation of transportation agencies refer to persons in the business of transportation of persons or property upon the public highways for hire or compensation. On the other hand, sections of the 1923 and

1925 tax acts defining those subject to taxation thereunder did not so provide. In fact both acts specifically exempted any person "who solely transports his or its own property". In the 1927 amendment to the 1925 act, this exemption was eliminated and the words "directly or indirectly" were added to the definition

of "operator". (Stats. 1927, p. 1742.) On January 1, 1928, the constitutional provisions of article XIII, section 15, and Political Code, section 3664aa, went into effect and said 1927 act became ineffective. Subsequently these sections of the Constitution and Political Code were held to apply only to common carriers

and not to private contract carriers or other operators. (People v. Duntley, 217 Cal. 150 [17 PaCal.2d 715]; People v. Lang Transp. Co., 217 Cal. 166 [17 PaCal.2d 721].) Thereafter the License Tax Act of 1933 here involved was enacted which employed the same language with reference to the definition of an operator

as that used in the 1927 act. Section 7, however, of said 1927 act which imposed penalties for the violation thereof provided that "any person, firm, association, or corporation who shall [6 Cal.2d 53] use the public highway in this state for the transportation of persons or property for hire, either as a

public or a private carrier, without first obtaining the license for which provision is herein made ... shall be guilty of a misdemeanor". Section 12 of the Licens e Tax Act of 1933, which is the section imposing penalties, provides that "any person, firm, association or corporation who shall use any public

highway in this state for the transportation of persons or property for hire or compensation without first obtaining the license for which provision is here made ... shall be guilty of a misdemeanor". The words "either as a public or a private carrier" used in the 1927 act, it is thus seen were deleted from the

License Tax Act of 1933. It seems reasonable to conclude that the purpose of the License Tax Act of 1933 in using the terminology of the 1927 act, from which the exemption of any person who solely transports his or its own property had been purposely eliminated from a former act, and in deleting from another section of

the 1927 act any terminology which would limit the application of the act to public or private carrier, was intended to have a broader scope than the taxation only of those who were carriers or engaged in the business of transportation of persons or property upon the public highways for hire or

compensation.

Petitioner has cited authorities from other jurisdictions construing statutes relating to the same subject-matter. Although some of these authorities involve bulk station operators, in view of the fact that the language of the California

statute to be construed is distinctly different in phraseology and terms from the statutes of those other jurisdictions these authorities are of little assistance and, of course, are not determinative of the meaning of the California act.
We are satisfied that the purpose of the enactment of the

License Tax Act of 1933 was to secure a fair return to the state for the use of its public highways not only from carriers, both common carriers and private contract carriers, but also from the larger class of persons who fairly answer to the description of "operator" therein defined as taxable and who receive

compensation, either directly or indirectly, from the use of the public highways. Although it is true that the legislature might legally have limited the application of such taxes to carriers, it evidently seemed more just and fair to the [6 Cal.2d 54] legislature, as it does to us, that all those who

receive compensation directly or indirectly from the use of the public highway should bear a proportionate share of the burden of its maintenance.
[2] We are also satisfied that in whatever light we view petitioner's operations, petitioner is subject to the provisions of said act, and is subject to the three

per cent tax therein imposed upon his gross receipts derived from his transportation operations. By reason of the fact that the Texas Oil Company retains title to the gasoline and petroleum products transported and distributed by petitioner to the customers, his contention that if his operations be

considered as his own business, he is in the business of a merchant in which delivery of the petroleum product is but incidental to the whole business of merchandising is without merit.
[3] The further contention of petitioner that the delivery by him of the oil company's products under his written

agreement with the oil company is in fact a delivery by the oil company of its own goods to its customers for which the company receives no compensation, either directly or indirectly, and for which delivery it should pay no tax, is, we think, also untenable. While the acts of 1923 and 1925 expressly exempted

those who solely transport their own property from the payment of any tax, this exemption clause was omitted from the License Tax Act of 1933 and no kindred or similar provision is to be found therein. It might be held therefore in a proper case that even a person who transports his own property is liable for the tax

provided for in the License Tax Act of 1933. No such question is presented to us in the instant proceeding, and we expressly refrain from deciding such question. No attempt was made to collect said tax from the oil company. In the present action, the oil company does not own the truck in which its products are

transported. On the other hand, petitioner not only owns the truck but he is paid a fixed compensation for transporting therein over the highways of the state, the company's property. He therefore comes within the express provisions of the act and is liable for the payment of the tax provided therein. We think

this is so whether he be held in a strictly legal sense to be the agent of the company in the transaction of its business, or as an independent contractor. In a sense the company acts through him in the delivery of its products, [6 Cal.2d 55] and in the same sense it acts through a carrier when it employs the latter

to make delivery. In both cases it is the "operator" of the truck who is using the highway for the transportation of property for hire or compensation, and who is, therefore, subject to the tax. As stated before, the act is strictly a revenue measure and its purpose is to collect a reasonable remuneration from

those who use the highway in certain gainful occupations.
[4] It is, therefore, evident that petitioner, upon that portion of his compensation from the Texas Company which he receives for his services, which consist of the delivery of the company's products, is subject to the License Tax Act of 1933.

While it may be true that the exact portion of his income which is directly or indirectly compensative for transportation operations, may be somewhat difficult of ascertainment, this fact alone cannot of course furnish an excuse for non-compliance with the act.
[5] We have carefully considered the various

grounds advanced by petitioner as reasons for holding the License Tax Act of 1933 unconstitutional and are convinced that none of them is tenable. There are two answers to his first objection that if the License Tax Act of 1933 is construed as applying to persons transporting their own property, the act would

be unconstitutional under section 24 of article IV of the Constitution in that the title of <font color="red">the act is not broad enough to embrace transportation upon the highways of one's own property.[/color] First, we have held that the operations of petitioner herein which are subject to taxation under the act are not a taxation

of the transportation of one's own property upon the highway. Secondly, the title of the act hereinbefore quoted is sufficiently broad, in our opinion, to cover even the transportation of one's own property upon the highway if compensation is received therefor. (See Collins- Dietz-Morris Co. v. State

Corporation Commission, 154 Okl. 121 [7 PaCal.2d 123, 80 A.L.R. 561].)
[6] The argument that this License Tax Act is special legislation and discriminatory as between merchants selling and delivering petroleum products and merchants selling and delivering other forms of merchandise is based upon an assumption

that the state board of equalization intends to apply said act only to transporters of petroleum products. There appears to be no basis for this assumption. Doubtless the [6 Cal.2d 56] state board of equalization will faithfully perform its duty and tax all operators who fairly come within the

definition of operator as defined by said act.
[7] No valid complaint can be made that the act is unconstitutional by virtue of the fact that section 14 thereof exempts from its operations motor vehicles operated exclusively within incorporated cities or towns and also motor vehicles operating between

incorporated cities or towns where no portion of the public highway outside of the corporate limits of said cities or towns is traversed in said operation. Similar provisions in the 1923 and 1925 acts were upheld in Bacon Service Corp. v. Huss, supra, and In re Schmolke, supra. <font color="red">The tax is placed upon those

obtaining compensation for the use of the public highways. [/color]
[8] The fact that petitioner by reason of his operations upon the public highways outside the incorporated cities or towns is unable to bring himself within the exemption of said act, with the result that he is required to pay a tax based upon both his

operations outside the incorporated cities and towns and also within the cities and towns, whereas those who bring themselves within the exemption are not required to pay a tax upon their city operations is not fatal to the validity of the act. Some inequalities are bound to occur even in classifications which are

manifestly fair and just.
[9] The fact that said act does not specify any method by which it may be determined what part of the gross receipts of petitioner's business and operations are from or should be allocated to the operation of transportation of property upon the public highways does not render

such act unconstitutional. Petitioner argues that any assessment of a license tax upon any part of the gross receipts of petitioner's business would be wholly arbitrary and thereby deprive petitioner of his property without due process of law. There is no warrant for the assumption that an assessment will be made

arbitrarily. If petitioner is dissatisfied he may proceed under section 9 of said act to have said matter adjusted.

The writ is discharged and the petitioner is remanded.

Waste, C.J., Seawell, J., Langdon, J., Conrey, J., Shenk, J., and Thompson,

J., concurred.

______________________________

[TheBlackTruth]

Another one Weis



This one from Jim's post:



National Indus. Sand Ass'n v Gibson (1995, Tex) 897 SW2d 769.

[TheBlackTruth]

And some more:





greener v. works 6cal 4th 1028

personal jurisdiction is not determined by the nature of the action but by the legal existense of the party or presense in the state



welsbach v. state 206 cal 556

license = implied contract



higgins v. monckton 28 cal ap 2d 723

it is a well-settled rule of law that who seeks benefits of a contract must also assume the burdens thereof



people v. battle 50 cal ap 3

"Traffic infractions are not a crime."



us v. cook 949 fed 2d 289

a witness may not testify unless evidence is produced that the witness has personal knowledge

[weishaupt1776]

<font color=black[b]Alright, Bro. I'll give it a whack tomorrow.

[TheBlackTruth]

welsbach v. state 206 cal 556

all licenses are based in constract



allen v. state 43 cal ap 2nd 310

a license once invalid or suspended, it doesn't exist

[TheBlackTruth]

<font color=darkblue face=verdana>people v morse 21 cal ap 4th 259



also, people, please note that if I don't put a statement in "quotes", then I don't intend on it to be characterized as such! I am merely putting a one-line summary of the import/character of the case.



-BT

[/color]

[vanton57]

People v. Morse, 21 Cal. App. 4th 259, 25 Cal. Rptr. 2d 816 (Cal.App.Dist.1 12/22/1993)







[1] COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE





[2] Nos. A058935, A060033





[3] 1993.CA.40350 <http://www.versuslaw.com>; 21 Cal. App. 4th 259; 25 Cal. Rptr. 2d 816





[4] Decided: December 22, 1993.





[5] THE PEOPLE, PLAINTIFF AND RESPONDENT,

v.

IVAN O.B. MORSE, DEFENDANT AND APPELLANT.





[6] Superior Court of Alameda County, Nos. H-156662-0 and H-156662-0A, Mark L. Eaton, Judge.





[7] Ralph D. Hughes and C. Timothy Genovese for Defendant and Appellant.





[8] Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Herschel T. Elkins, Assistant Attorney General, Laura W. Kaplan, Deputy Attorney General, John J. Meehan, District Attorney, and Lawrence C. Blazer, Deputy District Attorney, for Plaintiff and Respondent.





[9] Opinion by Chin, J., with Merrill, Acting P. J., and Werdegar, J., Concurring.





[10] Chin





[21 CalApp4th Page 263]





[11] In these consolidated appeals, Ivan O.B. Morse challenges the trial court's issuance of a preliminary injunction that enjoined him from mailing to the public solicitations concerning homestead declarations without complying with Business and Professions Code section 17537.6,*fn1 and a subsequent judgment that granted a permanent injunction, imposed $400,000 in civil penalties for Morse's violation of section 17537.6, and ordered that Morse pay $400,000 in cy pres restitution. He raises both constitutional and nonconstitutional challenges to the court's actions. Because the issuance of the judgment moots the appeal from the order granting a preliminary injunction, we dismiss that appeal. We also affirm the court's judgment.





[12] FACTUAL AND PROCEDURAL BACKGROUND





[13] At least since January 1988, Morse, a licensed attorney, has mailed solicitations to homeowners offering assistance in the filing of homestead declarations. Between January 1988 and January 1992, he mailed approximately 4,000,000 of these solicitations to California homeowners who had recently recorded trust deeds on their homes. As a result of these mailings, Morse prepared over 88,000 homestead declarations and received over $1.8 million in fees.





[14] On August 8, 1991, after unsuccessfully requesting that Morse stop mailing solicitations, respondent People of the State of California filed a "Complaint for Injunction, Civil Penalties, Restitution and Other Relief" against Morse, both individually and doing business as Morse and Associates. The complaint's first cause of action alleged that Morse had violated section 17537.6, which regulates solicitations in connection with the operation of a homestead filing service. Among other things, the complaint alleged that Morse's solicitations contained untrue and misleading statements insofar as they (1) suggested that recordation of a homestead declaration would in some manner prevent the forced sale of a judgment debtor's dwelling, (2) suggested that the advantages of the homestead exemption statutes are available only to those who record a homestead declaration, (3) suggested that Morse had a file or record pertaining to the person receiving





[21 CalApp4th Page 264]





[15] the solicitation, and (4) failed to make the statutorily required disclosures.*fn2 The complaint requested that the court permanently enjoin Morse from violating section 17537.6, and requested imposition of civil penalties and restitution.





[16] In a motion for a preliminary injunction filed July 31, 1992, respondent requested that the court enjoin Morse from violating section 17537.6 in connection with his mailing of solicitations to the public. In opposing the motion, Morse attacked the constitutionality of section 17537.6 on a variety of grounds. The court rejected Morse's constitutional arguments and granted the motion. It issued a preliminary injunction enjoining Morse from performing or failing to perform certain acts in accordance with section 17537.6. On August 20, 1992, Morse filed a notice of appeal from the preliminary injunction order.





[17] On October 8, 1992, respondent moved for summary judgment or, in the alternative, summary adjudication. In opposition to the motion, Morse conceded that his solicitations failed to comply with a number of the requirements of section 17537.6, but again attacked the constitutionality of the statute and argued that respondent had failed to present any evidence that his statements were misleading.*fn3 In light of this concession, the court granted summary adjudication on respondent's claim for violation of section 17537.6.*fn4 It entered a judgment permanently enjoining Morse from violating the statute in connection with sending written solicitations to the public. The judgment also orders Morse to pay $400,000 in civil penalties under section 17536, and $400,000 in cy pres restitution. Morse then filed an appeal fromthis judgment. We consolidated the appeal with his appeal from the preliminary injunction.





[18] Discussion





[19] Initially, we dismiss the appeal from the order granting the preliminary injunction. The subsequent judgment, which included a permanent injunction, moots that appeal. Therefore, we will not address the propriety of





[21 CalApp4th Page 265]





[20] granting the preliminary injunction. (People v. Rath Packing Co. (1978) 85 Cal. App. 3d 308, 314 [149 Cal. Rptr. 431].) We thus turn to the appeal from the final judgment.





[21] I. CONSTITUTIONALITY OF SECTION 17537.6





[22] A. FIRST AMENDMENT





[23] Morse's primary argument on appeal is that section 17537.6, which he admittedly violated, is an unconstitutional restraint of "his rights to free commercial speech under the First Amendment . . .." He states that "[t]here is no question here but that . . . [section] 17537.6 regulates commercial speech, since it both mandates and prohibits certain speech." He further argues that, because the written solicitation materials that he distributed were nondeceptive, accurate, and truthful, they constituted protected commercial speech that section 17537.6 unconstitutionally regulates.





[24] The first step in a commercial speech case is to "determine whether the expression is protected by the First Amendment." (Central Hudson Gas & Elec. v. Public Serv. Comm'n (1980) 447 U.S. 557, 566 [65 L.Ed.2d 341, 351, 100 S.Ct. 2343].) "The First Amendment's concern for commercial speech is based on the informational function of advertising. [Citation.] Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity." (Id., at p. 563 [65 L.Ed.2d at p. 349].) "The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading [citation] . . .." (Zauderer v. Office of Disciplinary Counsel (1985) 471 U.S. 626, 638 [85 L.Ed.2d 652, 664, 105 S.Ct. 2265]; see also Central Hudson, supra, at p. 563 [65 L.Ed.2d at p. 349] ["government may ban forms of communication more likely to deceive the public than to inform it"].) Thus, for commercial speech to receive First Amendment protection, ". . . it at least must concern lawful activity and not be misleading." (Central Hudson, supra, at p. 566 [65 L.Ed.2d at p. 351].) Whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law which we must determine after independently reviewing the record.*fn5 (Peel v. Attorney Disciplinary Comm'n of Ill. (1990) 496 U.S. 91, 108 [110 L.Ed.2d 83, 99, 110 S.Ct. 2281] (plur.





[21 CalApp4th Page 266]





[25] opn. of Stevens, J.); Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 463-464 [56 L.Ed.2d 444, 458-459, 98 S.Ct. 1912].)





[26] Having reviewed the record, we agree with respondent that Morse's advertisements are deceptive and misleading in a number of ways, and therefore are not entitled to First Amendment protection. Initially, Morse's complete failure to explain that, under Code of Civil Procedure sections 704.710-704.850, homeowners automatically receive a homestead exemption even if they do not record a homestead declaration renders his solicitation materials misleading. The materials variously refer to "a Homestead," "The Homestead Exemption," a "Declared Homestead," and a "Declaration of Homestead," and purport to discuss the benefits of "record[ing] a Homestead" and "recording a Declaration of Homestead." However, the materials never explain that, under California law, there is a difference between "the Homestead Exemption," which refers to the automatic exemption under Code of Civil Procedure sections 704.710-704.850,*fn6 and a "Declared Homestead,"*fn7 or that the benefits of the homestead exemption are available even to those who do not record a homestead declaration. Rather, the materials use these terms essentially interchangeably.*fn8 By using the terms-interchangeably without identifying the automatic homestead exemption or discussing its benefits, the materials incorrectly suggest that the homestead exemption and a declared homestead are the same thing and that





[21 CalApp4th Page 267]





[27] an exemption applies only if there is a recorded homestead.*fn9 They therefore are deceptive and misleading.*fn10





[28] Morse's materials are also misleading in their Discussion of a homeowner's protection against the forced sale of the home. The very first paragraph of the "Homestead Information Sheet" (Information Sheet) that Morse distributed states: "What Is the Purpose of Homestead Exemption? The policy underlying all homestead laws is to provide a place for the family where they [ sic ] may reside and enjoy the comforts of a home, free from the anxiety that it may be taken away from them [ sic ]." This statement of purpose suggests that the recording of a homestead declaration necessarily prevents the forced sale of a family's home; otherwise, the family could not be "free from the anxiety that it may be taken away . . .." However, even where a homeowner records a homestead declaration, a creditor may force the sale of a home through a levy pursuant to a writ of execution. (See Code Civ. Proc., § 704.740-704.800, 704.970.)*fn11 Morse's statement is misleading





[21 CalApp4th Page 268]





[29] in suggesting otherwise.*fn12





[30] Nothing that follows in the Information Sheet, or anything else in the materials, explains that, under certain circumstances, a creditor can force the sale of the home even if the homestead exemption applies and there is a recorded homestead declaration.*fn13 In fact, Morse's materials are otherwise silent as to the issue of a forced sale, except for the following paragraph: "3. If a creditor tries to force a sale of your home, with a Declaration of Homestead you'll have an important advantage over him in court. The creditor has the burden of proof to show why you should not be allowed the Homestead Exemption. Otherwise, the court will take your Declaration at its face value and grant you the exemption." Rather than clarifying the misimpression that the opening paragraph of the Information Sheet creates, this paragraph is further deceptive in suggesting that, so long as the court grants a homestead exemption, a creditor cannot force the sale of a home. However, as we have previously explained, a creditor may force a sale even if the homestead exemption applies. (See Code Civ. Proc., § 704.740-704.800, 704.970.)





[31] This paragraph is further misleading regarding the burden of proof. The paragraph suggests that, absent a recorded homestead declaration, the homeowner bears the burden of proving the applicability of the exemption. Indeed, in his brief on appeal, Morse explicitly states that, "[w]ith an automatic exemption, the homeowner carries the burden of proof of entitlement." He is incorrect. Under Code of Civil Procedure section 704.780, subdivision (a)(1), even without a recorded homestead declaration, the creditor has the burden of proof "[i]f the records of the county tax assessor indicate that there is a current homeowner's exemption or disabled veteran's exemption for the dwelling claimed by the judgment debtor . . .."*fn14 This section "creates a presumption in favor of exempt status if the judgment





[21 CalApp4th Page 269]





[32] debtor has claimed a homeowner's or veteran's property tax exemption for the dwelling." (Recommendation Relating to the Enforcement of Judgments Law (Sept. 1982) 16 Cal. Law Revision Com. Rep., supra, at p. 1095.) Moreover, it places an affirmative burden on the creditor, in applying for an order of sale, to indicate "whether or not the records of the county tax assessor indicate that there is a current homeowner's exemption or disabled veteran's exemption for the dwelling and the person or persons who claimed any such exemption." (Code Civ. Proc., § 704.760, subd. (a).) Thus, Morse's materials are deceptive in suggesting that, in order not to have the burden of proving the applicability of the homestead exemption, a homeowner must record a homestead declaration.





[33] Given our Conclusion that Morse's materials are deceptive and misleading, they are not entitled to commercial speech protection under the First Amendment.*fn15 Moreover, given the nature of his action, Morse is incorrect in arguing that he may challenge the constitutionality of section 17537.6 even if his own conduct is unprotected. "In the First Amendment context, [we have] permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. [Citations.]" (Bates v. State Bar of Arizona (1977) 433 U.S. 350, 380 [53 L.Ed.2d 810, 833-834, 97 S.Ct. 2691].) However, the justification for this "departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court . . . [citations] . . . [P] . . . applies weakly, if at all, in the ordinary commercial context." (Ibid.) Accordingly, the overbreadth doctrine does not apply "to professional advertising, a context where it is not necessary to further its intended objective. [Citation.]" (Id., at p. 381 [53 L.Ed.2d at p. 834]; see also Shapero v. Kentucky Bar Assn. (1988) 486 U.S. 466, 478 [100 L.Ed.2d 475, 487- 488, 108 S.Ct. 1916]; Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 497 [71 L.Ed.2d 362, 370, 102 S.Ct. 1186] ["overbreadth doctrine does not apply to commercial speech"]; Ohralik v. Ohio State Bar Assn., supra, 436 U.S. at p. 462, fn. 20 [56 L.Ed.2d at p. 457].) We therefore decline to address whether section 17537.6 as it applies to the conduct of others is constitutional under the First Amendment.





[34] B. VAGUENESS





[35] Morse also contends that section 17537.6 is unconstitutionally vague as it applies to lawyers. Subdivision (e)(1) of that section, which





[21 CalApp4th Page 270]





[36] defines a " 'Homestead filing service,' " excludes "any service performed by an attorney at law authorized to practice in this state for a client who has retained that attorney or an employee of that attorney acting under the attorney's direction and supervision." Morse complains: "The statute does not define the word 'retained,' nor is the definition contained as part of the legislative history. The statute does not tell the reader whether the client has to be an existing client, one who had 'retained' the attorney for other matters before discussing Declarations of Homestead, or whether the 'retained' exemption merely applies to an attorney being hired to prepare a Declaration of Homestead." Morse concludes that, "[s]ince ordinary people of common intelligence could guess as to the meaning of portions of the statute, . . . applying this statute to [him] would violate [his] due process rights . . .."





[37] The guarantee of due process of law includes the requirement of a reasonable degree of certainty in legislation. (People v. Superior Court (Caswell) (1988) 46 Cal. 3d 381, 389 [250 Cal. Rptr. 515, 758 P.2d 1046].) To withstand a vagueness challenge, ". . . a statute must be sufficiently definite to provide adequate notice of the conduct proscribed. '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [Citations.]' [Citations.]"*fn16 (Ibid.) In considering whether a legislative proscription is sufficiently clear to satisfy the requirements of fair notice, we consider not only the language of the challenged statute, but also its legislative history. (Walker v. Superior Court (1988) 47 Cal. 3d 112, 143 [253 Cal. Rptr. 1, 763 P.2d 852].) "We thus require citizens to apprise themselves not only of statutory language but also of legislative history . . . and underlying legislative purposes [citation]. [Citation.]" (Ibid.)





[38] Here, even if we agreed with Morse that the language of section 17537.6 is uncertain, in light of its legislative history, we must reject his vagueness claim.*fn17 Prior to its final passage, the bill that became section 17537.6 provided in relevant part: " 'Homestead filing service' does not include any service performed by an attorney at law authorized to practice in





[21 CalApp4th Page 271]





[39] this state . . .." (Assem. Amend. to Assem. Bill No. 684 (1987-1988 Reg. Sess.) May 4, 1987.) The Senate amended this provision of the bill to its final form by adding the phrase, "for a client who has retained that attorney . . .." (Sen. Amend. to Assem. Bill No. 684 (1987-1988 Reg. Sess.) Aug. 17, 1987.) According to the legislative history, the purpose of this amendment was to "narrow the exemption for homestead filing services provided by attorneys or their employees to services provided to a client of the attorney's. Otherwise, the bill would have permitted attorneys or their agents to engage in the reprehensible mail order practices barred by this bill." Thus, it is clear that the exclusion applies only to services an attorney provides to preexisting clients, and that the Legislature intended to prohibit attorneys from doing precisely what Morse did in this case. We therefore reject Morse's vagueness challenge.*fn18





[40] C. DUE PROCESS





[41] Morse also contends that section 17537.6, subdivision (b)(1), violates his due process rights under Tot v. United States (1943) 319 U.S. 463 [87 L.Ed. 1519, 63 S.Ct. 1241]. We disagree.





[42] We reject Morse's claim because we find Tot completely inapplicable to this case. Tot addresses the constitutionality of a statute that creates an evidentiary presumption, i.e., a statute that "make[s] the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated."*fn19 (Tot v. United States, supra, 319 U.S. at p. 467 [87 L.Ed.2d at p. 1524].) Section 17537.6 does not create an evidentiary presumption. Therefore, the analysis in Tot is inapplicable.*fn20





[43] II. AWARD OF PENALTIES AND RESTITUTION





[44] In addition to challenging the constitutionality of section 17537.6, Morse attacks the trial court's assessment of civil penalties on a variety of grounds. He first argues that the award was improper because the





[21 CalApp4th Page 272]





[45] court made the award "without first receiving and considering evidence of [his] financial condition, wealth and profits. [Citations]."





[46] Without agreeing with Morse's assertion that such evidence is always necessary in determining the amount of an award of civil penalties,*fn21 we find sufficient financial information in the record to support the award. Respondent submitted evidence showing that, between January 1988 and April 1992, Morse received over $1.8 million in fees from those for whom he prepared homestead declarations. This evidence was sufficient to support the court's award of $400,000 in civil penalties, notwithstanding the absence of evidence of Morse's net profit or other evidence of his financial condition.*fn22 (See Kinney v. Vaccari (1980) 27 Cal. 3d 348, 356, fn. 6 [165 Cal. Rptr. 787, 612 P.2d 877] [upholding penalty given evidence of "monthly rental receipts"]; People ex rel. Van de Kamp v. Cappuccio, Inc. (1988) 204 Cal. App. 3d 750, 765 [251 Cal. Rptr. 657] [affirming civil penalty of $73,528.05 in light of evidence that defendant had "gross income" in 1979 of over $1.5 million]; see also Walker v. Signal Companies, Inc. (1978) 84 Cal. App. 3d 982, 998 [149 Cal. Rptr. 119] [affirming punitive damage award that was "less than 1 percent of gross assets at book value of each defendant"].)





[47] We next reject Morse's assertion that the court erred in basing the damage award "on the number of solicitations mailed, rather than the number of people who received and read the solicitations, or who responded to the solicitations. [Citations.]" In People v. Superior Court (1973) 9 Cal. 3d 283, 289 [107 Cal. Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191], which





[21 CalApp4th Page 273]





[48] involved charges of false and misleading advertising in connection with door-to-door solicitation, the Supreme Court held that the number of violations under section 17536 "is to be determined by the number of persons to whom the misrepresentations were made," and that a court may impose up to a $2,500 penalty "for each customer solicited by a defendant." Applying this test, we find that each person to whom Morse sent a solicitation constitutes a "customer solicited by" Morse and a person "to whom the misrepresentations were made . . .."*fn23 (People v. Superior Court, supra, 9 Cal. 3d at p. 289.) Thus, the trial court did not err.





[49] In arguing to the contrary, Morse incorrectly relies on People v. Superior Court (Olson) (1979) 96 Cal. App. 3d 181 [157 Cal. Rptr. 628]. In Olson, defendant disseminated false and misleading newspaper advertisements in violation of section 17500. (Olson, supra, at pp. 184-185.) On appeal, the court held that, for purposes of assessing penalties under section 17536, ". . . a single publication constitutes a minimum of one violation with as many additional violations as there are persons who read the advertisement or who responded to the advertisement by purchasing the advertised product or service or by making inquiries concerning such product or service." (Olson, supra, at p. 198.) In reaching this Conclusion, the court rejected the argument that ". . . the circulation of the newspaper should be the measure of the number of violations." (Id., at p. 196.) The court reasoned that this measure could result in a penalty in excess of $2.5 billion for each edition of the newspaper (id., at p. 197), that ". . . it is 'unreasonable' to assume that the Legislature contemplated penalties of that magnitude for a false advertisement in a single edition of a newspaper," and that "[t]o so interpret the statute would render it violative of the due process prohibition against 'oppressive' or 'unreasonable' statutory penalties. [Citation.]" (Id., at p. 198.)





[50] Olson is inapplicable to the facts of this case. In contrast to the mass appeal at issue with the newspaper advertising in Olson,*fn24 Morse conducted a direct-mail campaign involving highly individualized solicitations. The address window on Morse's solicitations displayed not only the name and address of the homeowner-recipient, but also the name of the homeowner's lender. Moreover, Morse included in the solicitation materials the mortgage balance of the homeowner. Morse obtained this information, and determined the recipients of his solicitations, from public records that identified those "California residents who ha[d] recently recorded a trust deed." Thus, Morse





[21 CalApp4th Page 274]





[51] selected recipients and designed his materials to ensure that his solicitations would be noticed and read.*fn25 Under these circumstances, it is reasonable to assume that the Legislature contemplated a penalty for each direct mailing. This interpretation does not violate the due process prohibition against oppressive or unreasonable statutory penalties.*fn26





[52] We also reject Morse's contention that the penalty award is unconstitutionally excessive. In his appellate brief, Morse asserts that the penalties the trial court imposed "approximate 190%% of [his] total net worth, well over 150%% of the total profit [he] realized . . . between 1988-1992 from the homestead declaration venture, and 800%% of the profit [he] generated . . . from the non-homestead activities of his law practice for the entire year of 1992." However, because there is no evidence in the record to support these assertions, we must disregard them. (Tisher v. California Horse Racing Bd. (1991) 231 Cal. App. 3d 349, 361 [282 Cal. Rptr. 330].) Indeed, Morse did not contend below that the penalty was disproportionate to his wealth or ability to pay, even when the court indicated the amount of the penalty it intended to impose and asked him to comment.*fn27 Having failed to make this argument below, and having failed to include in the record evidence to support it, Morse cannot now challenge the penalties as excessive.*fn28 (See Kinney v. Vaccari, supra, 27 Cal. 3d at p. 356, fn. 6 [rejecting claim that penalty was





[21 CalApp4th Page 275]





[53] confiscatory because it exceeded property's value given failure "to introduce any evidence of that value at trial"]; People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal. App. 3d 683, 692 [244 Cal. Rptr. 22] [upholding penalty "[i]n view of the fact that [defendants] have not claimed the award was disproportionate to their wealth or ability to pay"].)





[54] Finally, we reject Morse's attack on the restitution award. Morse asserts generally that the court's order "has no basis in fact or law, is oppressive and arbitrary, and denies [him] his due process rights . . .." However, he cites no authority to support these assertions. "Where a point is merely asserted . . . without any argument of or authority for the proposition, it is deemed to be without foundation and requires no Discussion by the reviewing court. [Citation.]"*fn29 (Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 [199 Cal. Rptr. 72].)





[<font color=red>55] Disposition





[56] The appeal from the order granting the preliminary injunction is dismissed as moot. The judgment is affirmed.





[57] Merrill, Acting P. J., and Werdegar, J., concurred.





[58] Disposition





[59] The appeal from the order granting the preliminary injunction is dismissed as moot. The judgment is affirmed.[/color]





Opinion Footnotes



[60] *fn1 All further statutory references are to the Business and Professions Code unless otherwise indicated.





[61] *fn2 The complaint also alleged that Morse had made false and misleading statements to the public in violation of section 17500, and had engaged in unlawful or unfair business practices within the meaning of section 17200.





[62] *fn3 Morse takes the same position on appeal, stating: "The written materials [i] mailed . . . to the public did not comply with the disclosure and other requirements contained in [section] 17537.6, but the content of the materials was nondeceptive, accurate and truthful in every detail."





[63] *fn4 The court denied respondent's request for summary judgment as to the causes of action for making false and misleading statements to the public and engaging in unlawful or unfair business practices.





[64] *fn5 Thus, Morse is incorrect in stating that, "[s]ince the Trial Court decision related solely to technical violations of . . . [section] 17537.6 . . . and the Court did not find that any portion of the materials sent out by [him] to the public was deceptive or false, this issue is not before this Court." Additionally, Morse's statement mischaracterizes the record. At the summary judgment hearing, as to one of Morse's representations, the trial court stated: "I'm not sure it's untrue, but it certainly is somewhat misleading." However, because Morse conceded that his materials did not comply with section 17537.6, but did not concede that they were false and misleading, the trial court granted summary judgment only for noncompliance with the statute. It explained: "Okay. I'll tell you what I'll do because I don't think it makes any difference for purposes of your appeal. I am going to grant summary adjudication of the first cause of action in favor of the State and the County. That is the violation of Section 17537.6. Just to keep this clean I will deny the summary adjudication as to the second and third causes of action."





[65] *fn6 The article that contains these sections is entitled "Homestead Exemption."





[66] *fn7 The article that relates to homestead declarations (Code Civ. Proc., § 704.910-704.995) is entitled, "Declared Homesteads."





[67] *fn8 Examples of how Morse uses the terms interchangeably without explaining the differences are the following paragraphs: "Will My Homestead Declaration Prevent Me From Refinancing My Property? --No. Homestead Exemption does not apply to mortgages or deeds of trust placed on the property. You'll be free to refinance the property or obtain second and third deeds of trust." "Are There Disadvantages to Recording a Declaration of Homestead? --No. Homestead is a valuable right given to you by law. By recording a Declaration of Homestead, you are exercising your right to protect your home to the maximum extent allowed by law."





[68] *fn9 The following paragraph from Morse's materials provides a clear example of this confusion: "Who Is Eligible for the Homestead Exemption? --Every homeowner who resides in his/her home is entitled to this protection. The basic requirement is that the dwelling be your principal place of residence." It is unclear whether this paragraph refers only to a declared homestead or, because it speaks generally of "The Homestead Exemption," it also refers to the automatic exemption. However, because the materials refer interchangeably to "The Homestead Exemption" and "a Declaration of Homestead," and never explain that there is an automatic exemption, they create the impression that a homeowner can obtain a "Homestead Exemption" only by recording a "Declaration of Homestead." The paragraph furthers this misimpression by using the word "Eligible," which suggests that, although all homeowners may meet the requirements for obtaining a homestead exemption, they receive one only if they record a homestead declaration. (See Samuels v. Hite (1950) 35 Cal. 2d 115, 116 [216 P.2d 879] ["the word 'eligible' means 'capable of being chosen--the subject of selection or choice' "]; Black's Law Dict. (6th ed. 1990) p. 521, col. 1 [defining "[e]ligible" as "[f]it and proper to be chosen" or "[c]apable of being chosen"].)





[69] *fn10 Morse maintains that section 17537.6 "does not mandate that anyone . . . has an affirmative obligation to mention the automatic homestead exemption in its solicitations." However, the statute does prohibit anyone from representing that any of the benefits relating to the automatic exemption "are available only to persons who prepare or record a homestead declaration." (§ 17537.6, subd. (a)(3).)





[70] *fn11 Under Code of Civil Procedure section 704.970, subdivision (a), a creditor has the same right of levy pursuant to a writ of execution "[w]hether or not a homestead declaration has been recorded[.]" Subdivision (b) of that section directs that "[a]ny levy pursuant to a writ of execution . . . and the sale pursuant thereto shall be made in compliance with" the statutes governing the automatic homestead exemption (Code Civ. Proc., § 704.710-704.850), "and the judgment debtor and the judgment creditor shall have all the rights and benefits provided by" those statutes. Under Code of Civil Procedure section 704.800, subdivisions (a) and (b), even if the automatic homestead exemption applies, a creditor may force the sale of a homestead if, at a court-ordered sale, there is a bid that (1) "exceeds the amount of the homestead exemption plus any additional amount necessary to satisfy all liens and encumbrances on the property, including but not limited to any attachment or judgment lien" and (2) "is 90 percent or more of the fair market value . . .."





[71] *fn12 Morse asserts that the statement "cannot be misleading" because the wording of the statement "was derived from the Supreme Court of California and the California Court of Appeal . . .." However, regardless of the source of the language, the statement is deceptive absent an explanation that, even with a recorded homestead declaration, a creditor may be able to force a sale.





[72] *fn13 Although Morse's materials indicate that a declared homestead protects a homeowner's equity from lien attachment up to certain amounts, they do not explain that a creditor may, under certain circumstances, force the sale of the home despite the existence of the protection.





[73] *fn14 Code of Civil Procedure section 704.780's reference to a "homeowner's exemption" is not a reference to a recorded homestead declaration under Code of Civil Procedure section 704.930. Rather, the "homeowner's exemption" to which Code of Civil Procedure section 704.780 refers is the exemption under sections 218 and 253.5 of the Revenue and Taxation Code. (See Recommendation Relating to the Enforcement of Judgments Law (Sept. 1982) 16 Cal. Law Revision Com. Rep. (1982) p. 1095, fn. 301 and accompanying text.) This distinction is evident from the fact that homestead declarations are filed "in the office of the county recorder of the county where the dwelling is located" (Code Civ. Proc., § 704.920), not with "the county tax assessor . . .." (Code Civ. Proc., § 704.780, subd. (a)(1).)





[74] *fn15 Our Discussion of the ways in which Morse's materials are deceptive and misleading is not exhaustive. Our review of the record discloses other ways in which the materials are deceptive and misleading. For purposes of deciding this appeal, it is not necessary to discuss all of the deceptions.





[75] *fn16 A statute must also "provide standards for its application and adjudication in order to avoid the dangers of arbitrary and discriminatory enforcement. [Citation.]" (Williams v. Garcetti (1993) 5 Cal. 4th 561, 575 [20 Cal. Rptr. 2d 341, 853 P.2d 507].) Morse does not attack section 17537.6 on this ground, and we therefore do not address it.





[76] *fn17 We grant Morse's request that we take judicial notice of the legislative history of section 17537.6. We deny his request that we take judicial notice of a voluntary bankruptcy petition that he filed after the trial court entered judgment. (See In re Isaac J. (1992) 4 Cal. App. 4th 525, 535 [6 Cal. Rptr. 2d 65] [refusing to reevaluate trial court decision in light of postjudgment events]; In re Daniel C. H. (1990) 220 Cal. App. 3d 814, 830 [269 Cal. Rptr. 624] [appellate court normally will not consider matters occurring after judgment].)





[77] *fn18 Moreover, we note that Morse's solicitation materials belie his claim that he did not know he was operating a homestead filing service. In the cover letters he sent with his materials between April and December 1988, Morse stated: "To Assure Prompt Processing, Send in Your Homestead Service Application Within 15 Days!!" (Italics added.) Thus, notwithstanding his argument on appeal, Morse himself thought he was operating a homestead filing service. Morse changed the language of his cover letters by deleting the reference to a "Homestead Service Application" only after receiving a letter informing him that he was violating section 17537.6.





[78] *fn19 The statute at issue in Tot provided that possession of a firearm or ammunition by certain persons " '. . . shall be presumptive evidence that such firearm or ammunition was shipped or transported or received . . . in violation of this Act.' " (Tot v. United States, supra, 319 U.S. at p. 464 [87 L.Ed.2d at p. 1522].)





[79] *fn20 In the trial court, Morse candidly acknowledged that Tot "is not directly on point . . .."





[80] *fn21 In support of his argument, Morse cites section 17536, subdivision (b). However, that section directs the court to consider "the defendant's assets, liabilities, and net worth" only if these circumstances are "presented by any of the parties to the case . . .." (§ 17536, subd. (b).) At the summary judgment hearing, Morse's counsel stated that Morse was "entitled to a hearing on the damages or a hearing to determine factually how much he's made" from his homestead declaration business. There is a difference between the amount Morse made through his solicitations and his "assets, liabilities, and net worth." Thus, his invocation of an alleged right to a hearing regarding "how much he's made" was not a request generally for a hearing regarding his wealth and financial condition. Nor does it meet the statutory requirement that relevant circumstances be "presented by . . . the parties to the case" (§ 17536, subd. (b)), especially given Morse's position that respondent bore the burden of proof and his refusal to respond to the court's questions regarding his profits. Finally, Morse's citation to cases involving punitive damages does not establish that such proof is required in assessing statutory penalties. (See Beeman v. Burling (1990) 216 Cal. App. 3d 1586, 1601 [265 Cal. Rptr. 719] ["there is no authority for the proposition that statutory damages . . . must be supported by evidence of the defendant's wealth"].)





[81] *fn22 Given our Conclusion, we need not address Morse's argument that respondent bore "[t]he burden of proof concerning financial condition, wealth and profits . . .." We note, however, that in State of California v. City and County of San Francisco (1979) 94 Cal. App. 3d 522, 530-531, we held that, once the evidence establishes a statutory violation under Water Code section 13385, it becomes the defendant's burden to establish that the court should impose a penalty less than the statutory maximum.





[82] *fn23 Under Evidence Code section 641, "[a] letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."





[83] *fn24 The court in Olson twice emphasized that it was interpreting section 17536 "in the context of a newspaper advertisement. . . ." (People v. Superior Court (Olson), supra, 96 Cal. App. 3d at p. 198.)





[84] *fn25 The nature and presentation of the information Morse included in his solicitations, and his method for selecting recipients, rebut his characterization of his mailings as " 'junk mail' " that many people do not read. Nor does the record support his claim that the envelopes of his solicitations "clearly indicated that the contents were 'advertisement. ' " The record contains five sample cover letters that Morse sent with his solicitations. Only two of them indicate that they are a "Priority Advertisement." Even as to these two, the record does not establish that this information was visible from the outside of the envelope.





[85] *fn26 The two additional cases Morse cites in his reply brief do not suggest a different Conclusion. In both, courts looked to evidence of completed transactions to establish a minimum number of violations sufficient to affirm penalty awards. (People v. Toomey (1984) 157 Cal. App. 3d 1, 22 [203 Cal. Rptr. 642] [evidence of sales sufficient to support finding of "at least 150,000 violations"]; People v. Bestline Products, Inc. (1976) 61 Cal. App. 3d 879, 923 [132 Cal. Rptr. 767] [evidence that 3,000 people acted in response to solicitations supports finding "of at least 3,000 violations"].) Neither suggests that there were not additional violations in connection with solicitations that did not result in completed transactions. (See Bestline Products, Inc., supra, at p. 923 [evidence supports imposition of penalties "based upon false and misleading representations having been made to upward of 10,000 prospective distributors, 3,000 of whom in fact acted thereon to become direct or general distributors"].)





[86] *fn27 The court asked Morse, "Do you feel 20 cents a violation is excessive?" Morse's counsel replied: "I think it would be inappropriate for me to state my opinion because I don't believe that's my call."





[87] *fn28 Moreover, "[w]hen compared with the maximum possible fine of $2,500 per violation, the trial court's assessment [of 20 cents per violation] was reasonable, if not lenient." (People v. Toomey, supra, 157 Cal. App. 3d at p. 23; see also People ex rel. Van de Kamp v. Cappuccio, Inc., supra, 204 Cal. App. 3d at p. 765 [court's award of $124.20 per violation was "well within its discretion" under statute authorizing award of $2,500 per violation].)





[88] *fn29 In his reply brief, Morse contends that the restitution award is improper because those who responded to his solicitations received exactly what they believed they were receiving and for the price they believed they were to pay. However, given Morse's failure to raise this argument in his opening brief, we need not addres