Quelimane Co. v. Stewart Title Guaranty Co.
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QUELIMANE COMPANY, INC. et al., Plaintiffs and Appellants,
v.
STEWART TITLE GUARANTY COMPANY et al., Defendants and Respondents.
Supreme Court of California.
*712 Steve White, H. Peter Young, Judith A. Routledge, Rastegar & Matern, Los Angeles, and Dennis Wilson, for Plaintiffs and Appellants.
Levinson, Lieberman & Snyder, Levinson, Lieberman & Maas, Peter M. Hebert, Burton S. Levinson and Lawrence R. Lieberman, Beverly Hills, for Defendants and Respondents.
Horvitz & Levy, Lisa Perrochet, David M. Axelrad, Encino, Heller, Ehrman, White & McAuliffe, Paul Alexander, Vanessa Wells, Palo Alto, Greines, Martin, Stein & Richland, Robin Meadow and Feris M. Greenberger, Beverly Hills, as Amici Curiae on behalf of Defendants and Respondents.
BAXTER, Justice.
In this case we are again called upon to construe and apply the unfair competition law (UCL). (Bus. & Prof.Code, §§ 17200-17209.)[1] The principal question here is whether the Insurance Code displaces the UCL and provides the only remedies for plaintiffs who have been harmed by an alleged conspiracy among title insurers to refuse to sell title insurance on real property acquired at a tax sale.
We conclude that the Insurance Code does not displace the UCL except as to title company activities related to rate setting. We shall reverse the judgment of the Court of Appeal which reached a contrary conclusion.
I
BACKGROUND
Although plaintiffs' first amended complaint set out seven causes of action against several defendants, only those in which First American Title Insurance Co. (First American) is a defendant are in issue here. Defendants Stewart Title Guaranty Company (Stewart Title) and Placer Title Company (Placer Title) have been dismissed from the action, without prejudice, by stipulation.[2]
In the allegations[3] in support of the first and second, which incorporates the first, causes of action, the first amended complaint alleges the following:
*713 Plaintiffs Quelimane Company, Inc., Mannix Investments, Inc. (doing business as Western Land Bank Auctions), Western Land Capital Co., Port Kendall, Inc., and Western Land Bank, Inc., are engaged in the holding, ownership, and financing of real property. All have purchased properties at tax sales in El Dorado County.
Stewart Title, Placer Title, and First American are the only companies offering title insurance in El Dorado County.[4] All are subject to provisions of the Insurance Code and regulations of the California Department of Insurance.
On September 8, 1991, Western Land Bank sold at auction a parcel of El Dorado County real estate to Naina and Fathima Rahman. Title to the property was then in plaintiff Port Kendall, Inc., which had acquired it by tax deed more than one year before the auction sale at which the Rahmans purchased the property. The contract gave the purchasers the option of acquiring title insurance at their own expense. The purchasers were unable to secure title insurance from Placer Title and Stewart Title, which intentionally refused to issue a policy of title insurance. The Rahmans instituted mediation proceedings as provided in their contract of sale and sought rescission of the land sale contract.
Placer Title and Stewart Title knew, and prior to the purchase by the Rahmans, Placer Title had issued a preliminary title report to the Rahmans stating that the land was unencumbered by any trust deed or claim of ownership by any party other than the seller. Placer Title had also issued a written report declaring readiness to issue a title insurance policy on the parcel.
On September 20, 1992, Western Land Bank sold to SAR at auction two lots in El Dorado County that the seller had acquired at a tax sale. Placer Title and Stewart Title each informed SAR that the lots were uninsurable and therefore unmarketable. They refused to issue title insurance on the property. At the time they did this, these defendants knew there was no cloud on the seller's title, and that any possible clouds on title had been nullified by operation of law one year after the seller took title by tax sale.
On February 10, 1991, Robert Constant agreed to purchase at a Western Land Bank auction a parcel of Fresno County realty. Western Land Bank had acquired the property by tax deed. First American issued a commitment for title insurance on the property, but conditioned it on commencement of a quiet title action. Because First American refused to issue the policy without a quiet title action, Constant did not complete payment for the property.
The complaint also alleged that defendants engaged in a practice of interfering with land sale contracts by refusing to issue title insurance on parcels purchased by tax sale in which title was deeded free and clear by operation of law. Defendants were aware that ability to obtain title insurance is an important part of any real estate transaction in California and had individually and jointly undertaken marketing programs stressing the necessity of such insurance, attempting to convince members of the general public that the insurance is essential to protect purchasers. Defendants had represented to the public that they would insure any real estate that had good title.
Based on these allegations the complaint asserted interference by Stewart Title and Placer Title with contractual relations of plaintiffs with Rahman, SAR, and Constant; conspiracy among defendants to refuse to issue title insurance policies on real property obtained pursuant to a tax sale; and intentional, willful and deliberate interference by all defendants with contractual relations of members of the general public for the sale of land purchased through tax sales.
*714 The second cause of action restated some of the above allegations and also alleged that defendants had agreed among themselves to "redline" all property acquired by tax sale, had engaged in a scheme to deny title insurance to parcels of land purchased at a land auction when the seller of the parcels had acquired title at a tax sale, and had conspired together to deny title insurance to property obtained by tax sale. It also asserted that, by agreeing to refuse to issue title insurance to such property while making efforts to convince members of the public that title insurance was necessary, defendants had manipulated the market in the El Dorado County area in which they were the only title insurers. This cause of action asserted that in the three specific sales described in the first cause of action, defendants had engaged in unlawful, unfair and fraudulent business practices, conduct that constitutes an unfair business practice as the term is used in section 17200, and that the conduct described in the second cause of action also constituted an unfair business practice. Defendants allegedly engaged in this conduct without economic, actuarial, or other justification.
As a result of defendants' conduct the value of plaintiffs' land is greatly reduced in value and is difficult to market, and plaintiffs are unable to transfer title to some real estate they own.
The fifth cause of action, for negligence, alleges that defendants had a duty to members of the general public to issue title insurance to any parcel of land without discrimination, to report the legal status of the title of any parcel and to use known and accepted legal, actuarial, and statutory criteria to determine the legal status of land. It alleges they breached that duty by failing to insure title to any parcel purchased by tax sale regardless of the merits of the chain of title.
First American demurred to the first, second and fifth causes of action for the reason that each failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The demurrer was sustained as to all causes of action against First American without leave to amend and judgment was entered for First American.
Plaintiffs appealed, arguing that they had sufficiently pled causes of action for interference with contract, violation of section 17200, and breach of a duty to issue title insurance policies without discrimination, and that, if not, leave to amend should have been granted. The Court of Appeal disagreed and affirmed the judgment for defendant First American.
Relying in part on Delia Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, 45 Cal.Rptr.2d 436, 902 P.2d 740, the Court of Appeal held that the allegations did not state a cause of action for intentional interference with contractual relations because First American's refusal to issue title insurance was not wrongful for a reason other than the impact on the plaintiffs' contracts with the Rahmans and SAR. The court reasoned that no law or administrative regulation prohibits title insurers from denying a policy. The allegation of a conspiracy did not overcome the absence of any obligation to issue title insurance.
The court noted that Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 172 P.2d 867 held that concerted activities for an unlawful purpose such as activities in restraint of trade could form the basis of a cause of action for interference with contractual relations. However, believing that Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 267, 41 Cal.Rptr.2d 220, 895 P.2d 56 (Manufacturers Life) supported its conclusion, the court held that the Insurance Code, and in particular Insurance Code section 12414.26, now limits actions against insurers for unlawful business practices to the remedies provided in that code, displacing other existing rights and remedies for unlawful business practices in the insurance industry, including the Cartwright Act. Furthermore, that court held, no common law theory of restraint of trade was available because illegality at common law rendered an agreement void and unenforceable, but did not afford a damages remedy. (State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1167, 252 Cal.Rptr. 221, 762 P.2d 385.)
It followed, the Court of Appeal reasoned, that the second cause of action for violation *715 of section 17200 also failed to state a cause of action since the Legislature had not made section 17200 expressly applicable to insurers.
Finally, since there is no duty to issue a policy of title insurance, the allegations of the fifth cause of action failed to state a cause of action for negligence.
Plaintiffs contend that the Court of Appeal erred in concluding that title insurance companies are exempt from civil liability under laws prohibiting conduct in restraint of trade and unfair business practices notwithstanding concerted action to deny title insurance to an entire category of property. In the context of title insurance for property acquired at a tax sale, they argue, this result is contrary to a clear legislative policy that there be no extraordinary risks in acquiring such property that would affect its marketability.
First American counters that the lawsuit is an attempt to create as official public policy a mandate that a title insurer issue policies to properties with a tax sale deed in the chain of title even though they are unable through research to ascertain if the tax sale deed is valid. First American also argues, consistent with the reasoning of the Court of Appeal, that no private civil action may be brought on the basis of its refusal to issue title insurance on tax-defaulted property because Insurance Code section 12414.29 gives the Insurance Commissioner exclusive jurisdiction over the conduct of title insurers in title transactions. Further, defendant First American contends, relief must be denied here because, regardless of whether Insurance Code sections 12414.26 and 12414.29 preclude application of the Cartwright Act (§ 16700 et seq.) and the UCL (§ 17000 et seq.), it had valid reasons for conditioning the issuance of its policy and could justifiably condition the issuance on a quiet title action.
II
DISCUSSION
The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42, 172 P.2d 867.)" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. "[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have... long since departed from holding a plaintiff strictly to the `form of action' he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained." (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal. Rptr. 745, 496 P.2d 817, original italics; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 339, 60 Cal.Rptr.2d 539.)
If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal. Rptr. 718, 703 P.2d 58.)
In this court plaintiffs do not contend that defendant's requirement of a quiet title action by Robert Constant as a condition to issuance of a policy of title insurance is itself unlawful and a basis for recovery under the UCL. They argue instead that they have sufficiently alleged a conspiracy among First American, Stewart Title, and Placer Title to refuse to issue title insurance on any taxdeeded property, among which was the Constant parcel. That conduct, they contend, is concerted action in restraint of trade which violates the Cartwright Act (§ 16700 et seq.) and thus is a recognized basis for a civil *716 action for damages and other relief under the UCL.
A. Tax Deeds.
At the outset we put the dispute in context. To determine whether the complaint states a cause of action under a theory of conspiracy in restraint of trade, it is helpful to understand the type of titles which defendants allegedly refuse to insure. The tax deed at the genesis of the action is the means by which property which has defaulted to the state for failure to pay assessed taxes is transferred to a private buyer. Revenue and Taxation Code section 3691 authorizes a tax collector to sell tax-defaulted property five or more years after the default. The owner's right to redeem the property terminates at the close of business on the last business day before the sale is set. (Rev. & Tax.Code, § 3707.)
Any person may purchase at a tax sale. The Revenue and Taxation Code spells out the procedures under which the sale is made, for giving notice prior to the sale, and for sharing of proceeds by taxing entities. (Rev. & Tax.Code, § 3691 et seq.) On receipt of the full purchase price the tax collector executes a deed to the purchaser. (Rev. & Tax.Code, § 3708.) This is the "tax-sale deed" (i.e., tax deed) to which plaintiffs refer in the complaint.
Except as against fraud, a tax deed is conclusive evidence that the proceedings from the assessment to the execution of the deed were regularly performed. (Rev. & Tax.Code, § 3711.) With minor exceptions[5] the deed conveys title free of all encumbrances. (Rev. & Tax.Code, § 3712.)
A purchaser at a tax sale or other person in privity may bring a suit to quiet title to the property. (Rev. & Tax.Code, § 3727.)
While the validity of a tax deed may be challenged, "[a] proceeding based on alleged invalidity or irregularity of any proceedings instituted under [Revenue and Taxation Code section 3691 et seq.] can only be commenced within one year after the date of execution of the tax collector's deed." (Rev. & Tax.Code, § 3725.) Moreover, "[a] defense based on the alleged invalidity or irregularity of any proceeding instituted under [Revenue and Taxation Code section 3691] can be maintained only in a proceeding commenced within one year after the date of execution of the tax collector's deed." (Rev. & Tax.Code, § 3726.)
As the Court of Appeal explained in Van Petten v. County of San Diego (1995) 38 Cal.App.4th 43, 46, 44 Cal.Rptr.2d 816 (Van Petten): "`A tax sale proceeding is wholly a creature of statute.' (Craland, Inc. v. State of California [(1989)] 214 Cal.App.3d [1400,] 1403, 263 Cal.Rptr. 255.) After a declaration of default with respect to real property which has become subject to a tax lien, `the property becomes "tax-defaulted property." [Citations.] The five-year redemption period commences to run upon the declaration of default. [Citations.] [¶] The tax-defaulted property becomes subject to sale following the expiration of the redemption period, and a sale must be attempted within two years thereafter. [Citations.] The sale must first be approved by the county board of supervisors and the state controller. [Citation.]' (Craland, Inc. v. State of California, supra, 214 Cal.App.3d at p. 1404, 263 Cal.Rptr. 255.)[¶] Property sold by public auction ... goes to the highest bidder. [Citation.] The minimum purchase price is the `total amount necessary to redeem [the property],' which is defined as the sum of the defaulted taxes, delinquent penalties and costs, redemption penalties and a redemption fee." (Fns.omitted.)
In People v. Chambers (1951) 37 Cal.2d 552, 561, 233 P.2d 557, this court held that where a tax statute provides a remedy, that remedy is exclusive. Chambers was followed in Van Petten and in Craland, Inc. v. Instate of California (1989) 214 Cal.App.3d 1400, 263 Cal.Rptr. 255 (Craland), where the Court of Appeal concluded that a purchaser at a tax sale is limited to the remedies provided by *717 the Revenue and Taxation Code and has no right to common law remedies for defects in the tax sale proceeding. (Van Petten, supra, 38 Cal.App.4th at p. 51, 44 Cal.Rptr.2d 816; Craland, supra, 214 Cal.App.3d at p. 1405, 263 Cal.Rptr. 255; cf. Schultz v. County of Contra Costa (1984) 157 Cal.App.3d 242, 203 Cal.Rptr. 760.)
It is for this reason plaintiffs assert that defendants have no economic justification for refusing to issue title insurance to any purchaser of property which the seller acquired at a tax sale. As noted, defendant First American claims it is justified in refusing to issue title insurance or conditioning the issuance on prosecution of a quiet title action by the owner. Amicus curiae California Land Title Association (CLTA) also argues that such justification exists. It explains the reluctance to insure tax deed titles on the nature of title insurance which, it states, describes an interest in real property as of the date it is issued. Title insurance, as opposed to other types of insurance, does not insure against future events. It is not forward looking. It insures against losses resulting from differences between the actual title and the record title as of the date title is insured. The policy does not guarantee the state of the title. Instead, it agrees to indemnify the insured for losses incurred as a result of defects in or encumbrances on the title. (Karl v. Commonwealth Land Title Ins. Co. (1993) 20 Cal.App.4th 972, 978-980, 24 Cal.Rptr.2d 912.)
A title insurer issues title insurance on the basis of, and in reliance on, the quality of its own investigation into instruments which, when recorded, impart constructive notice. Generally those records are public records concerning the status of the title. Potential risks not disclosed in public records are generally excluded from coverage. (See Cal. Title Insurance Practice (Cont.Ed.Bar 2d ed. 1977) §§ 6.34-6.54, pp. 143-156.) The degree of risk is therefore largely within the control of the insurer. CLTA claims it has been the experience of the title insurance industry that tax deeds carry such a risk of unpredictable challenges by persons undisclosed by the title insurer's investigation that they have long been considered too speculative to insure. The risk exists because the statutory requirements governing tax sales require strict adherence to a complex series of procedures which, if not followed make the tax deed title vulnerable to attack. In the view of CLTA, "a judicial predilection" in favor of former owners of the property has led to invalidation of tax deeds on the basis of harmless procedural defects. CLTA therefore cautions its members in its manual that attacks on tax deeds are often successful. It advises its members that tax titles should never be insured simply because the insurer believes the title can be defended. The title should be insured only if no defense of the title will be required, since the cost of the defense will be considerably more than the premium received for insuring the title. By declining this risk title insurance is made readily available and inexpensive.
Whether or not title insurers generally or defendant First American can justify participation in a conspiracy to refuse to insure title to tax deeded property is not relevant at this stage of the proceedings, however. We do not foreclose the possibility that First American may be able to establish that legitimate business purposes support its refusal to insure titles derived from tax deeds and/or the alleged agreement among El Dorado County title insurance companies not to do so. Justification, however, is a defense to be raised at trial or on motion for summary judgment. In reviewing a dismissal following the sustaining of a demurrer, we address only the sufficiency of the complaint to state a cause of action.
After doing so, we conclude that the complaint does not state a cause of action for negligence, but the allegations are sufficient to state causes of action for unfair competition and intentional interference with contractual relations.
B. The UCL.
The UCL permits "any person acting for the interests of itself, its members or the general public" (§ 17204) to initiate an action for restitutionary and/or injunctive relief (§ 17203) against a person or business entity who has engaged in "any unlawful, unfair or fraudulent business act or practice [or] unfair, *718 deceptive, untrue or misleading advertising [or] any act prohibited by Chapter 1 (commencing with Section 17500 [false advertising])...." (§ 17200.)
Because plaintiffs may prosecute a UCL action on behalf of the general public and need not have personally suffered damages,[6] defendant's argument that the allegations of the complaint fail to establish that it had a duty to issue a policy of title insurance to Constant does not compel a conclusion that the complaint fails to state a cause of action. If insurers are subject to the UCL and the complaint states a Cartwright Act violation, the complaint is sufficient against defendant's demurrer. Moreover, fairly read,[7] the complaint alleges that the refusal to issue title insurance to Constant was a product of the alleged conspiracy in restraint of trade.
It is important to emphasize here that we agree with defendant First American, the Court of Appeal, and amici curiae CLTA and State Farm Insurance Companies on a major point. An insurer does not have a duty to do business with or issue a policy of insurance to any applicant for insurance. Whether an insurer should be required to offer a particular class of insurance or insure particular risks are matters of complex economic policy entrusted to the Legislature. (Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 53 Cal.Rptr.2d 878.)
The claim made here, however, is that defendant First American conspired with other title insurance companies to deny title insurance on titles derived from tax deeds. The UCL cause of action is based on a theory that this conspiracy was unlawful and that the conspiracy is a basis for a UCL action.
We turn therefore to First American's argument that title insurers are not subject to the UCL. That question might appear to have been answered in Manufacturers Life, supra, 10 Cal.4th 257, 41 Cal.Rptr.2d 220, 895 P.2d 56. The defendants in Manufacturers Life included insurance companies offering life insurance and insurance brokers, all of whom were subject to regulation under the Insurance Code by the Insurance Commissioner. There, too, the defendants argued that they were exempt from antitrust and unfair business practices legislation except to the extent that the Unfair Insurance Practices Act (UIPA) (Ins.Code, § 790.03) applied.
This court rejected that argument, holding that a UCL action against an insurer predicated on an alleged Cartwright Act violation could proceed even though the defendant's allegedly unlawful conduct was also a violation of the UIPA. Construing the UCL and UIPA, we expressly concluded that in adopting the UIPA the Legislature had not granted a general exemption from antitrust and unfair competition statutes. "Rather, the Legislature intended that rights and remedies available under those statutes were to be cumulative to the powers the Legislature granted to the Insurance Commissioner to enjoin future unlawful acts and impose sanctions in the form of license and certificate suspension or revocation when a member of the industry violates any applicable statute, rule, or regulation." (Manufacturers Life, supra, 10 Cal.4th at p. 263, 41 Cal.Rptr.2d 220, 895 P.2d 56; see also Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at p. 565, 71 Cal.Rptr.2d 731, 950 P.2d 1086.) We observed that no court had accepted the argument that the UIPA exempted insurance companies from other state antitrust laws or from civil liability for anticompetitive conduct, and that in Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d 34, 45-46, 172 P.2d 867, we had held that the industry is not exempt from Cartwright Act claims. (Manufacturers Life, supra, 10 Cal.4th at p. 279, 41 Cal.Rptr.2d 220, 895 P.2d 56.)
The Court of Appeal concluded nonetheless that provisions of the Insurance Code specifically applicable to title insurers did create such an exemption. While noting that *719 in Insurance Code section 12401 the Legislature had expressed its intent to "permit and encourage competition between persons or entities engaged in the business of title insurance," the court held that Insurance Code sections 12414.26 and 12414.29 precluded plaintiffs' action. We do not agree.
Insurance Code section 12414.26 provides: "No act done, action taken, or agreement made pursuant to the authority conferred by Article 5.5 (commencing with Section 12401) or Article 5.7 (commencing with section 12402) of this chapter shall constitute a violation of or grounds for prosecution or civil proceedings under any other law of this state heretofore or hereafter enacted which does not specifically refer to insurance." (Italics added.)
Insurance Code section 12414.29 provides: "The administration and enforcement of Article 5.5 (commencing with Section 12401) and Article 5.7 (commencing with Section 12402) of this chapter shall be governed solely by the provisions of this chapter. Except as provided in this chapter, no other law relating to insurance and no other provisions in this code heretofore or hereafter enacted shall apply to or be construed as supplementing or modifying the provisions of such articles unless such other law or other provision expressly so provides and specifically refers to the sections of such articles which it intends to supplement or modify. The provisions of this chapter and regulations adopted pursuant thereto shall constitute the exclusive regulation of the conduct of escrow and title transactions by entities engaged in the business of title insurance as defined in Section 12340.3, notwithstanding any local regulation or ordinance." (Italics added.)
The scope of these sections is expressly limited to articles 5.5 and 5.7 of division 2, part 6, of the Insurance Code. Chapter 1 of part 6, commencing with Insurance Code section 12340, governs title insurance. Article 5.5 applies only to rate regulation, article 5.7 only to advisory organizations which supply data related to ratemaking.[8] First American argues, however, that UCL actions against title insurers are precluded by the last sentence of section 12414.29, as the Legislature has provided there that the provisions of sections 12340 et seq. of the Insurance Code which govern title insurance are to be "the exclusive regulation of the conduct of escrow and title transactions by entities engaged in the business of title insurance...." We disagree. First American's argument ignores the remainder of that sentence "notwithstanding any local regulation or ordinance" which makes it clear that the legislative purpose was to preempt local regulation, not to exempt title insurers from other state laws governing unfair business practices.
If there were any doubt about the purpose of that sentence, which was added to Insurance Code section 12414.29 by amendment in 1981 (Stats.1981, ch. 479, § 5, p. 1820), the legislative history of the amendment dispels it. The Legislative Counsel's digest of the bill explained that the regulations in the chapter to which Insurance Code section 12414.29 refers (Ins.Code, div. 2, pt. 6, ch. 1) are exclusive to the exclusion of any local regulation or ordinance. (Legis. Counsel's Dig., Assem. Bill No. 691, 4 Stats. 1981 (Reg.Sess.) Summary Dig., p. 127.) The Assembly analysis is to the same effect, stating that the amendment was proposed by the Senate Insurance and Indemnity Committee to "make clear that the conduct of escrow and title transactions by title insurers is solely within the jurisdiction of state, not local regulation. The language contained in this bill preempting local regulation is similar to existing law regarding the licensing of production agencies." (Assem. analysis of *720 Assem. Bill No. 691 (1981-1982 Reg. Sess.), original italics.)[9] It is clear, therefore, that Insurance Code section 12414.29 is not a statute which "expressly provide[s]" (§ 17205) that the UCL is inapplicable to the conduct of title insurers that is not related to ratemaking. Plaintiffs are not limited to the remedies set forth in the Insurance Code for the conduct alleged in this complaint.
The Court of Appeal did not consider the restriction to ratemaking-related activities in Insurance Code sections 12414.26 and 12414.29. It inadvertently relied instead on a statement in Manufacturers Life, supra, 10 Cal.4th at page 267, 41 Cal.Rptr.2d 220, 895 P.2d 56, which described the opinion of the appellate court in that case and was not a holding of this court that section 12414.26 exempted title insurers from other laws unrelated to ratemaking. Neither title insurance nor the applicability of the UCL and Cartwright Act to title insurance was before this court in Manufacturers Life.
Indeed, in this court First American does not place principal reliance on the reasoning of the Court of Appeal. Instead, it first contends that the scope of the Cartwright Act and the UCL is not broad enough to encompass a claim like that made by plaintiffs. Were the court to conclude otherwise, it argues, we would usurp the power of the Legislature and create an untoward public policy mandating that title insurance companies issue policies even when they have determined that the risk is substantial. First American concedes that plaintiffs allege a conspiracy to deny title insurance when there is a tax deed in the chain of title and that other companies refused to issue title insurance policies, but claims that these allegations are inconsistent with allegations that First American agreed to issue a policy if a quiet title action was completed.
In a related argument, amicus curiae State Farm Insurance Companies argues that, because the potential scope of UCL liability is very broad, particularized fact-pleading should be required in UCL claims. Pleading specific facts rather than conclusory allegations is necessary, amicus curiae claims, both to give defendants notice of the theory on which plaintiff would hold them liable and to permit early disposition of factually unsupported actions. The potential for misuse of the UCL has not gone unnoticed. (See Stop Youth Addiction v. Lucky Stores, Inc., supra, 17 Cal.4th 553, 71 Cal.Rptr.2d 731, 950 P.2d 1086.) However, contrary to the suggestion by amicus curiae that the court may require fact-specific pleading, the well-settled rule is otherwise except in pleading fraud.
In Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, 197 Cal.Rptr. 783, Additional Information