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SACRAMENTO � Is San Francisco shrinking? That’s what a few defendants hammered by the city’s prolific unfair competition lawsuits think. In a handful of recent cases, they’ve argued that San Francisco doesn’t have the standing � or more specifically, the population � to bring an action under California’s Business & Professions Code �17200. State law allows cities with 750,000 residents or more to file unfair competition suits. The cities of San Diego and San Jose certainly qualify. But does San Francisco? Some defendants say San Francisco’s population dipped below the line during the dot-com bust of the early 2000s. No court has upheld that argument yet. But City Attorney Dennis Herrera isn’t waiting for that to happen. The city attorney’s office is sponsoring legislation that would specifically empower San Francisco, regardless of its population, to continue filing 17200 actions. On a party-line vote, the Assembly last week adopted AB 759 by Assemblywoman Sally Lieber, D-Mountain View. The bill now heads to the more liberal Senate, which is typically friendlier to unfair competition legislation than the lower house. “There’s been no definitive answer from the courts, so we’d like to get one from the Legislature,” said Owen Clements, chief of special litigation in the city attorney’s office. The unfair competition statute has formed the cornerstone in many of San Francisco’s legal battles, from code enforcement actions to challenges against gun manufacturers and big tobacco companies. “17200 is an enormously broad statute, and it’s been interpreted very liberally,” said Robert Van Nest, a business litigation specialist at Keker & Van Nest. “It’s a very powerful tool for plaintiffs.” But in 2003, San Francisco solo practitioner J. Brian McCauley thought he had found a foil to 17200 while defending a Hyde Street property owner in a code enforcement case filed by the city. McCauley argued that San Francisco’s population had dipped below 750,000 and the city had no standing to go after his client. “When you’re arguing a land use case, you really have to look to see what you have to oppose it,” McCauley said. “It was an argument that appeared to me to be a good one so I raised it.” The 2000 U.S. Census pegged San Francisco’s population at 776,733. But federal demographers later estimated that number would fall to 744,230 by 2004. City attorneys, however, cited California’s Department of Finance projections, which never recorded any population dip in San Francisco between 2000 and 2004. In fact, the state put San Francisco’s population at more than 795,000 in 2004. In May 2004, a San Francisco Superior Court judge ruled in favor of McCauley’s client, although the three-page judgment didn’t mention the population issue. Just last month, the First District Court of Appeal largely affirmed the lower court’s ruling in an unpublished opinion. The court, however, called the population question “irrelevant” to the appeal and declined to consider it. But on Thursday the First District ordered San Francisco v. Ballard, 06 C.D.O.S. 1054, to be published. Other defendants have tried the San Francisco-is-too-small argument, but the courts have yet to address it directly, Clements said. If AB 759 succeeds, it wouldn’t mark the first time the Legislature has granted 17200 powers to a specific city. In 1988, lawmakers authorized San Jose to file unfair competition actions even though fewer than 750,000 residents called it home at the time. “There’s no reason San Francisco should lose its ability to bring these actions,” Clements said. But McCauley said the bill raises issues of fairness in other cities that haven’t reached the 750,000 threshold. “Who’s to say there’s no other governmental entity that would be affected?”

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