Because an injunction may not issue to enforce penal laws, a taxpayer action cannot be brought to enjoin public expenditures that allegedly are illegal solely because they violate a penal statute. A prior appeal of the case raised only the question of whether the plaintiff’s claim was justiciable or improperly sought to have the court intrude into an area of legislative or executive discretion. This case holds that the decision of that issue did not implicitly also decide whether Civil Code section 3369 barred the plaintiff in a taxpayer action under CCP 526a from seeking an injunction enforcing a penal statute. The Civil Code section was not raised on the prior appeal and it was a distinct issue from the justiciability issue raised on that appeal, not merely a different approach to the same controlling authority. Civil Code section 3369 provides that an injunction may not issue to enforce a penalty or a penal law, except in the case of a nuisance. The mere fact that conduct is criminal does not immunize it from an injunction if the conduct also constitutes a civil wrong, but an injunction may not be granted just because the conduct violates a criminal statute. The reason is that the equitable injunction proceeding deprives the defendant of the jury trial to which he would be entitled in a criminal case, and pursuing the claim in a private civil suit circumvents the prosecutor’s discretionary control over which crimes to prosecute. Section 3369’s ban on injunctions enforcing penal laws applies to taxpayer actions under CCP 526a seeking an injunction against illegal expenditure of public funds. If what makes the expenditure illegal is only a penal statute, a taxpayer action may not be pursued to enjoin the expenditure. The 1977 amendment that separated the UCL out of section 3369 and added “or as otherwise provided by law” to that section did not reverse the rule just stated but instead was only intended to except the UCL from the ban on injunctions enforcing penal laws as had been the case before the amendment.
California Supreme Court (Corrigan, J.); May 25, 2017; 2017 WL 2276526