Notrica v. State Compensation Insurance Fund (70 Cal. App. 4th 911, 1999)

Opinion

HASTINGS, J.

Introduction

Joe Notrica, doing business as Notrica’s 32nd Street Market (Notrica), sued his workers’ compensation insurer, State Compensation Insurance Fund (SCIF, sometimes State Fund or Fund), to recover in tort and for unfair business practices, based on allegations relating to SCIF’s case reserve and claims handling policies and practices. In a bifurcated proceeding, the jury awarded Notrica $478,606 in compensatory damages and $20 million in punitive damages; the trial court enjoined SCIF from various business practices and awarded $333,319.65 in attorney fees. SCIF appeals from the judgment. We conclude that the punitive damages award must be reduced to $5 million and otherwise affirm.

Procedural Background

In its complaint against SCIF, Notrica asserted two causes of action here pertinent: tortious breach of the implied covenant of good faith and fair dealing, to be determined by the jury; and unfair, unlawful, or fraudulent business practices (Bus. & Prof. Code, § 17200), to be determined by the trial court.

The implied covenant cause of action alleged the following pertinent facts.

SCIF is the state’s largest workers’ compensation carrier, created in 1914 as a public enterprise fund and subject to the jurisdiction and control of the state Insurance Commissioner. SCIF has issued policies to more than 250,000 California employers and has held itself out to the public as the most experienced carrier in California. SCIF, required by Insurance Code section 11775 to be neither more nor less than self-supporting, owns or controls assets exceeding $2.5 billion and “enjoyed a net investment gain on investment income of over $370 Million for the year ending December 31, 1989. Premiums earned for that year exceed[ed] $1.8 Billion.” SCIF conducts its business in the same manner as a private carrier, can and does compete with private carriers, and is subject to the same standard of liability. SCIF may be sued in all actions arising out of any act or omission in connection with its business affairs, whether in tort or contract, pursuant to Insurance Code section 11783.

SCIF issued a workers’ compensation policy (Policy) to Notrica for the period June 1988 through June 1989, which obligated it to investigate, defend, and settle claims reasonably and to estimate reasonable claim reserve levels. SCIF failed to meet these obligations, resulting in its breach of the implied duty of good faith and fair dealing. SCIF breached this duty for the purposes of either receiving higher premiums or paying less dividends, and increasing its revenues and surpluses while impairing Notrica’s financial interests. As a proximate result, Notrica paid higher premiums to workers’ compensation carriers, failed to receive sufficient dividends, and was forced to hire professionals to assist it in reviewing SCIF’s conduct and to prosecute this action.

SCIF’s conduct had been intentional and constituted fraud, oppression, or malice, justifying imposition of punitive damages under Civil Code section 3294.

Under the unfair competition cause of action (Bus. & Prof. Code § 17200 et seq.), which requested restitution, punitive damages, and injunctive relief, Notrica included the following additional allegations. SCIF failed to disclose certain internal policies in order to induce Notrica to enter into the Policy agreement. Notrica reasonably relied upon the inducements and incurred damages as a result. SCIF intentionally, wrongfully and with fraud, oppression, or malice, refused to deal directly with Commercial Benefits, Notrica’s authorized representative for workers’ compensation insurance concerns, thereby interfering with the contractual relationship between Notrica and Commercial Benefits. SCIF represented that denials of reviews of claims files was to protect the privacy interests of individuals; however, its motives were to perpetrate a fraud upon Notrica and other insureds, to destroy the third party risk manager industry, to compete unfairly with private insurers, to inhibit or prevent discovery of SCIF’s fraudulent and negligent conduct, to gain and maintain an unfair advantage over its insureds and the industry, to enable it to collect exorbitant premium payments, all of which acts constitute dishonest, deceptive, oppressive, fraudulent, unfair, and destructive conduct. SCIF’s interference resulted in Notrica’s overpaying premiums.

The jury rendered several findings by special verdict. It found by a preponderance of the evidence that SCIF had breached the duty of good faith and fair dealing and that such breach had resulted in Notrica’s suffering damages totaling $478,606. The jury found by clear and convincing evidence that SCIF had acted with fraud, awarding $20 million in punitive damages.

The trial court, sitting in equity, found SCIF had engaged in unfair business practices (Bus. & Prof. Code, § 17200). It issued an injunction requiring SCIF to delete the term “maximum probable potential” from its claims estimating manual and to return to a previous standard. It further enjoined SCIF from denying insureds access to claims files as relevant to the employer’s premium, from refusing to communicate with an insured’s authorized representative, and from refusing to allow such representative to conduct an appropriate claim file review (Lab. Code, § 3762).

The trial court found that Notrica was the prevailing party on its cause of action for breach of the implied covenant of good faith and fair dealing, and on that ground it awarded costs and reserved jurisdiction to determine entitlement to reasonable attorney fees. At a postjudgment hearing, the trial court awarded some $300,000 in attorney fees.

SCIF asserts the following contentions on appeal:

I. An insured employer should be prohibited from recovering tort damages where the only damage claimed is the impact on future premiums.

II. The bad faith judgment must be reversed because it is not supported by SCIF’s reserving practices, claims handling, or claims review policies, including those governing its relationship to the insured’s agents.

III. The compensatory damage award must be reversed for new trial.

IV. The injunction is not supported by the law or the facts.

V. The punitive damages award must be reversed and any new trial on this issue requires retrial of all issues.

VI. The award of attorney fees should be reversed or at least limited.

Discussion

I. Basis for Tort Damages

The “particular risk presented by the insured’s experience or insurance history” is one of the factors that an insurer is permitted to consider in setting premiums for its insureds. (P. W. Stephens, Inc. v. State Compensation Ins. Fund (1994) 21 Cal.App.4th 1833, 1836 [27 Cal.Rptr.2d 107].) In the instant case, SCIF employed what it termed the “maximum probable potential” standard to workers’ compensation claims against Notrica when setting aside amounts as reserves for Notrica cases. “The ‘maximum probable potential’ standard means that the adjuster reserves for the absolute most SCIF may have to pay without any exercise of discretion or judgment as to the realistic value of each claim. . . . [T]he greater the claim reserves, the greater the insured’s loss history, which in large part determines the insured’s experience modification factor — which in turn is used by SCIF to calculate the insured’s premium. Claim reserves also impact whether an insured receives a dividend or not.” (MacGregor Yacht Corp. v. State Comp. Ins. Fund (1998) 63 Cal.App.4th 448, 457 [74 Cal.Rptr.2d 473], review den. July 29, 1998.) By implication, the jury in the instant case found SCIF had failed to estimate reasonable claim reserve levels, resulting in Notrica’s paying higher premiums and receiving lower dividends.

SCIF first contends that an impact on future premiums is not a sufficient basis in and of itself to support the tort damage award for breach of the implied covenant of good faith and fair dealing. SCIF notes that the goal of the state workers’ compensation system is to maintain sufficient reserves to compensate injured workers under its policy of liberal construction to provide maximum benefits to the injured employee, and that insurers must set reserves in the amount for which, in the language of Insurance Code section 923.5, the insurer “may be liable.”

We first address SCIF’s argument that permitting tort recovery based solely on the fact that its practices impacted Notrica’s future premiums is

error. SCIF claims that such policy creates an irreconcilable conflict of interest for the carrier vis-a-vis its insured employer and the claimant employee. SCIF describes this “conflict” as the employer’s desire for lower reserves, which SCIF insists would result in pressure on the insurer to look for ways to deny claims and to pay as little as possible to injured employees, as compared to the duty of the insurer to maintain sufficient reserves to pay workers’ legitimate claims. Security Officers Service, Inc. v. State Compensation Ins. Fund (1993) 17 Cal.App.4th 887 [21 Cal.Rptr.2d 653], expressly rejected SCIF’s “conflict” argument: “SCIF ásserts that to measure its practices under a good faith standard would improperly conflict with the workers’ compensation rights of claimants, to whom SCIF is directly liable, but who are limited to compensation remedies for insurers’ delay [citation], because SCIF would be forced to attune its efforts toward minimizing plaintiff’s premiums, as opposed to proper claims determination and payment. The conflict is a false one. A good faith standard does not pit plaintiff’s interests against its claimants’. From the standpoint of diligence and proper reserve-setting, the interests of tioth are identical. Indeed, competent performance at reasonable cost is the combined goal and standard for all professions and businesses, including insurance.” (Security Officers Service, Inc. v. State Compensation Ins. Fund, supra, 17 Cal.App.4th at p. 898.) Furthermore, the amount of reserve set for a particular claim has no impact whatsoever on the amount ultimately paid an injured worker. (See Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1613 [56 Cal.Rptr.2d 341].)

SCIF argues further that the implied covenant does not impose a duty on it to protect the insured’s interest in lower premiums. SCIF acknowledges that Security Officers Service, Inc. v. State Compensation Ins. Fund, supra, 17 Cal.App.4th 887, reached a different conclusion but argues at great length that Security Officers, as well as several other cases it finds troublesome, were wrongly decided.

In Security Officers the trial court sustained without leave to amend SCIF’s demurrer to the insured’s complaint for breach of contract and breach of the implied covenant of good faith and fair dealing, alleging that the insured had been damaged by SCIF’s systematic failure to process claims diligently and by SCIF’s unreasonable inflation of claim reserves — complaints made herein by Notrica. The appellate court reversed, holding that “under an insurance regime in which the insured’s annual claims experience inexorably influences its premiums, the insurer may be liable if it processes claims and sets reserves without good faith regard for their impact on the insured’s premiums and potential dividends.” (17 Cal.App.4th at p. 890.) Security Officers noted that “ ‘[t]he covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another.’ [Citation.]” (Id. at p. 894, quoting Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 372 [6 Cal.Rptr.2d 467, 826 P.2d 710].) “Thus, ‘the insurer, when determining whether to settle a claim, must give at least as much consideration to the welfare of its insured as it gives to its own interests.’ [Citation.]” (17 Cal.App.4th at p. 894, quoting Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818 [169 Cal.Rptr. 691, 620 P.2d 141] [disability policy].) Security Officers concluded that the more traditional failure-to-settle cases “confirm that the insurer’s discretion in handling claims is restricted when its exercise may impair the insured’s interests under the policy.” (17 Cal.App.4th at p. 896.) The court reasoned that because the insured is “bound to pay SCIF — or, allegedly, any successive insurer — a policy premium that SCIF’s claims and reserves handling will directly influence,” it is logical that “. . . the covenant of good faith and fair dealing indeed requires SCIF to conduct its claims resolution and reserve allocation processes with good faith regard for [plaintiff insured’s] interests.” (Id. at p. 896.)

Tricor California, Inc. v. State Compensation Ins. Fund (1994) 30 Cal.App.4th 230 [35 Cal.Rptr.2d 550], subscribed to the reasoning of Security Officers in its reversal of the trial court’s dismissal of a cause of action for breach of the implied covenant. (Id. at pp. 238-240.)

The case of MacGregor Yacht Corp. v. State Comp. Ins. Fund, supra, 63 Cal.App.4th 448, also supports Security Officers. In MacGregor, the employer brought an action against SCIF to recover damages in tort and for breach of express and implied contract. The trial court concluded that the tort cause of action was barred by the statute of limitations. In the nonjury trial, the court found, inter alia, that SCIF had breached the implied covenant of good faith and fair dealing by “refusing to permit the insured access to claim files or other relevant claims data, refusing or failing to settle claims reasonably, setting unreasonably high reserves, modifying and concealing its reserving practices which maximized receipts at the expense of its insureds, and setting reserves at a ‘maximum probable potential’ exposure rather than at the most probable result of the case.” (Id. at p. 452.)

On appeal in the MacGregor case, SCIF contended, as in the instant case, that its reserving and claims handling practices, as well as its restriction of employer access to claims files, did not violate the implied covenant. The MacGregor court. disagreed, referencing Tricor’s invocation of language from Security Officers: “ ‘ “Because the powers so confided in SCIF’s discretion will impact the degree of plaintiff’s primary burden under the policy, it appears logical that the covenant of good faith and fair dealing indeed requires SCIF to conduct its claims resolution and reserve allocation processes with good faith regard for plaintiff’s interests. [Citation.]””’ (MacGregor Yacht Corp. v. State Comp. Ins. Fund, supra, 63 Cal.App.4th at p. 456.) MacGregor also referenced Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 201-202 [51 Cal.Rptr.2d 622]: “ ‘[T]he alleged mishandling of claims by an insurer occasioned by the hiring of inadequate legal and medical advisers and insufficient defense investigation and resolution of pending claims implicates the insurance policy’s implied covenant of good faith and fair dealing, which “imposes limits on the insurer’s latitude in discharging its contractual right or duty to defend, investigate and settle claims. [Citation.]” ’ ” (MacGregor Yacht Corp. v. State Comp. Ins. Fund, supra, 63 Cal.App.4th at p. 456.)

With respect to SCIF’s argument that the implied covenant does not impose a duty on the carrier to protect its insured’s interest in lower premiums, MacGregor states: “[D]espite the alleged liberal nature of the local WCAB, for an insurer to fulfill its obligation not to impair the right of the insured to receive the benefits of the [policy] agreement, the insurer ‘is obligated to give the interests of the insured at least as much consideration as it gives to its own interests.’ [Citation.]” (63 Cal.App.4th at p. 457.)

Finally, SCIF argues that even if Notrica can state an implied covenant claim, recovery should be limited to contract rather than tort remedies. SCIF again acknowledges that Security Officers is to the contrary (Security Officers Service, Inc. v. State Compensation Ins. Fund, supra, 17 Cal.App.4th at p. 899 [plaintiff allowed to elect between suing in contract or in tort]). SCIF’s position has also been rejected by Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1509, 1511-1519 [11 Cal.Rptr.2d 161], followed by Maxon Industries, Inc. v. State Compensation Ins. Fund (1993) 16 Cal.App.4th 1387, 1390-1394 [20 Cal.Rptr.2d 730]. We have reviewed in detail the lengthy criticisms authored by SCIF and related amici curiae of Courtesy Ambulance Service, Security Officers, Tricor, and Lance Camper, the arguments are not persuasive. We agree with the holdings of the above cases on this issue. (See also Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 684-685 [254 Cal.Rptr. 211, 765 P.2d 373]; Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 218-222 [62 Cal.Rptr.2d 640]; cf. Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at pp. 34-35.)

II. The Bad Faith Judgment

SCIF contends that its reserving practices cannot support the bad faith judgment. SCIF first asserts that judicial input threatens its solvency, entails “microeconomic managing,” and that the matter should be left to the Legislature and administrative bodies. In support of this position, SCIF cites two business judgment rule cases. Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554 [53 Cal.Rptr.2d 878], approved the decision of the trial court to sustain demurrers without leave to amend in a complaint which alleged that the refusal of insurers to continue to sell homeowner-earthquake insurance policies after the devastating Northridge earthquake was an unfair business practice. SCIF attempts to analogize Wolfe to the instant case by claiming SCIF established at trial it had changed its reserving language solely to encourage adjusters to set adequate reserves at an earlier date in the claims process because its past reserves had been too low. SCIF also cites Lee v. Interinsurance Exchange (1996) 50 Cal.App.4th 694 [57 Cal.Rptr.2d 798], a case in which former subscribers were unsuccessful in their action to compel the defendant reciprocal insurer to deposit into the subscribers’ savings accounts all surplus funds that exceeded legally required amounts. SCIF does not cite, nor have we found, any case employing the business judgment rule in the context of the instant case, but in any event the rule cannot be held to supplant the implied covenant of good faith and fair dealing. (See also Tricor California, Inc. v. State Compensation Ins. Fund, supra, 30 Cal.App.4th at p. 242; Lance Camper Manufacturing Corp. v. Republic Indemnity Co., supra, 44 Cal.App.4th at p. 203; Salimi v. State Comp. Ins. Fund, supra, 54 Cal.App.4th at p. 222.)

SCIF next asserts that its reserving practices did not constitute bad faith. It mounts several arguments.

First, that since adequate reserves are essential to an insurer’s successful operation (Ins. Code, § 923.5, fn. 4, ante), SCIF must have wide latitude in setting reserving policy. Here, SCIF characterizes differences in reserve policies as merely philosophical, and it revisits its business judgment rule argument. We have rejected the business judgment rule argument.

SCIF next asserts that its disapproved reserving policy actually is reasonable as a matter of law on the ground that the policy is consistent with the goal that the reserve “ ‘reflect, as accurately as possible, the insured’s potential liability.’ ” (Lipton v. Superior Court, supra, 48 Cal.App.4th at p. 1613.) In support of this position, SCIF cites two documents under seal. The first is a one-page document titled “Case Estimates,” dated December 1, 1986, that includes the following statement under “Policy”: “Individual case estimates must be sufficient to allow the State Fund to assess and eventually discharge its liability. All estimates shall be accurate and adequate, reflecting the current information in the claims file. The basis for estimates will be documented in the claims file.” The second is an eight-page document titled “Case Estimates,” dated July 1, 1989. It sets forth the “maximum probable potential cost” standard and states that accurate estimates are vital to the fiscal solvency of SCIF and that reserves have a direct impact on policyholders’ dividends, experience modifications, and premium rates as developed by the Workers’ Compensation Insurance Rating Bureau.

SCIF also points to evidence it presented at trial that its claim reserve standard always was that the claim reserves be adequate. The description realistic and reasonably anticipated final costs is characterized as an early guideline that helped adjusters to reach the reserve standard; maximum probable potential cost was adopted in July 1989 after the National Association of Insurance Commissioners reported that SCIF fell below its recommended range for claim reserves, three of eleven “tests.” SCIF notes that Norm Hansen, a SCIF executive vice-president, testified he had understood that the new guideline had been adopted to encourage claims adjusters to take “a more considered approach in putting a reserve on a claim.” Geri Madden, SCIF’s governmental relations officer, testified that consideration of the policyholder was always present since a healthy SCIF was in the best interests of everyone.

Finally, SCIF claims in support of its position on the issue of reasonableness that its “maximum probable potential cost” reserve guideline is supported by statute. It notes the language of Insurance Code section 923.5 (fn. 4, ante): “all losses and claims for which the insurer may be liable.” (Italics added.) SCIF argues that the statute requires the insurer to reserve for its potential liability and therefore its reserving practices are reasonable by definition. SCIF also asserts that its language “virtually mirrors” the self-insurer standards of the Department of Insurance.

Although the referenced testimony and SCIF’s reserve policy statements can be understood as evidence of its good faith, SCIF’s actions constitute substantial evidence in support of the contrary findings of fact. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [38 Cal.Rptr.2d 139, 888 P.2d 1268].) SCIF admitted at trial that it was not in any financial danger when it adopted the new guideline, and, in fact, had a $712 million surplus. Madden, who first suggested the new guideline, testified that “maximum probable potential cost” meant that it was to be assumed that the worker would prevail in court and thus all contrary evidence was to be disregarded. SCIF did not inform its insureds, including Notrica, of the change in its reserve policy guideline. SCIF developed a training memorandum to assist its sales staff in persuading insureds and potential customers that an “actual, realistic value” would be assigned to all claims. The change to maximum probable potential cost resulted in Notrica’s claims being over-reserved by $1,149,424 (with a margin of error of 0.1 to 2.5 percent), and Notrica paying a total of $598,257 in additional premiums from 1990 through 1993. This is substantial evidence which supports the finding of bad faith in SCIF’s implementation of Insurance Code section 923.5.

SCIF next states the truism that the implied covenant “does not require SCIF to engage in risky or unlawful reserving practices.” SCIF asserts that to adopt Notrica’s approach to claim reserves would result in under-reserved claims and would violate Insurance Code section 923.5. However, the parties had first operated under the previous reserve guideline of “realistic and reasonably anticipated final cost,” with which Notrica was apparently satisfied since it again contracted with SCIF for coverage while ignorant of the guideline change. Notrica filed this action in response to the problems generated under the new reserve guideline of “maximum probable potential cost.” As will be seen later in this opinion, the evidence supports the conclusion that SCIF’s solvency was never at risk.

SCIF next contends that its claims handling protocol cannot support the bad faith judgment, asserting that it was not required to conduct “investigatory fishing expeditions” — a proposition with which all would agree — and that Notrica failed to prove it had suffered any damages as a result of improper claims handling. SCIF further asserts that Notrica should have been required to try in this action each workers’ compensation claim at issue, and SCIF selects several of the Notrica claims to argue there was mere speculation that if SCIF had done something different Notrica would have benefited.

SCIF strays from the issue. The trial court qualified Lucille Van der Heyden as Notrica’s expert witness on claims handling; SCIF raised no objection. Van der Heyden testified that, based on her opinion of what constitutes good faith claims handling, 31 of the cases filed against Notrica called for investigative measures greater than those employed by SCIF. Several of these claims cases were examined in detail at trial. The finders of fact credited Van der Heyden. As previously noted, the amount reserved on such cases directly impacted Notrica’s premiums.

With respect to the “trial within a trial” demand, the trial court listened to extensive argument in response to SCIF’s bid to put one of the allegedly injured employees on the stand. The trial court denied the request, based upon Evidence Code section 352. This was proper.

SCIF asserts that its policy against employer and employer-representative hands-on review of claims files was reasonable as a matter of law in that it protected the employee’s constitutional right to privacy and is supported by statute. As previously stated, the judgment enjoins SCIF from denying insureds access to claims files as relevant to the employer’s premium, from refusing to communicate with an insured’s authorized representative, and from refusing to allow such representative to conduct an appropriate claim file review, in accordance with Labor Code section 3762. Although Labor Code section 3762 was not in effect during the period Notrica was insured by SCIF, the reference in the judgment reflects the concern of the trial court that the rights of both the employee and the employer be protected. There is no ground for concluding that this portion of the judgment is incorrect, as will be discussed in greater detail later in this opinion.

III. The Compensatory Damages Award.

SCIF first argues that the trial court imposed an erroneous strict liability standard for bad faith when it instructed the jury as follows:

“In considering whether the defendant workers’ compensation insurance company acted in good faith or in bad faith in administering the workers’ compensation claims filed against the insured, you should consider all the evidence which tends to establish either good faith or bad faith, including, but not limited to, evidence on the following factors:

“Whether the workers’ compensation insurance company did or did not properly investigate the claim;

“Whether the workers’ compensation insurance company did or did not properly defend the insured in a particular workers’ compensation claim or claims;

“Whether the workers’ compensation insurance company did or did not, when setting the reserves, consider the impact that those reserves had on its insured’s ability to receive dividends;

“Whether the workers’ compensation insurance company did or did not, when setting the reserves, consider the impact that those reserves would have on the insured’s future workers’ compensation premiums;

“Whether the workers’ compensation insurance company did or did not reject the advice of its own attorneys or agents;

“Whether the workers’ compensation insurance company did or did not communicate with the insured concerning the administration or settlement of a workers’ compensation claim or claims;

“Whether the workers’ compensation insurance company did or did not set a reasonable reserve on the workers’ compensation claim file or claim files that it was handling on behalf of its insured;

“Whether the workers’ compensation insurance company did or did not delay in resolving the workers’ compensation claim or claims that were filed against its insured.”

SCIF objected to the instruction because it was based on Security Officers. The trial court overruled the objection, concluding that the instruction “basically is what [Security Officers] has said.” We agree with the trial court that the instruction is consistent with case law. (Security Officers Service, Inc. v. State Compensation Ins. Fund, supra, 17 Cal.App.4th at pp. 897-898 [implied covenant relates to SCIF’s “functions of defending, investigating, reserving, and settling claims with good faith regard for their effect upon plaintiff’s premiums, as determined under the policy and governing regulations” and a plaintiff’s contingent entitlement to dividends, reserve-setting, and unreasonable delays in settling and paying claims]; see also Walbrook Ins. Co. v. Liberty Mutual Ins. Co. (1992) 5 Cal.App.4th 1445, 1455-1456 [7 Cal.Rptr.2d 513].) The instruction does not set out a standard of strict liability. (See also BAJI No. 12.98, factors to consider in determining whether defendant insurance company acted in good faith in rejecting an offer of settlement.)

SCIF complains that the trial court rejected proposed special instructions that would have informed the jury “that mere negligence does not constitute bad faith.” We note the trial court did give SCIF’s proposed special instruction No. 55, which does illustrate this concept. Of course, the evidence supports a conclusion that there was more than “mere negligence” in this case. More to the point, Tricor holds that “evidence of negligent mishandling of such claims to [plaintiff’s] detriment, if shown as a pattern, clearly would be strong circumstantial evidence that SCIF indeed engaged in the complained of conduct.” (Tricor California, Inc. v. State Compensation Ins. Fund, supra, 30 Cal.App.4th at p. 238.) The trial court properly rejected the other proposed instructions since they misstate the law.

In its discussion of the compensatory damage award, SCIF mounts several evidentiary arguments which we now address.

SCIF argues that the trial court erred in allowing Notrica expert witness Sam Smith to rely upon a publication titled the Weekly Insider and to read excerpts to the jury. We disagree.

Smith testified that in his opinion representations by SCIF sales personnel to prospective insureds that SCIF adjusters were trained and expected to place a “probable value” on a worker’s case were inconsistent with the “maximum probable” guideline set out in SCIF’s reserving manual. Smith further testified he had relied upon two documents in forming an opinion as to why SCIF had changed its reserving guideline to “maximum probable.”

The first document, Smith testified, was a June 6, 1989, SCIF memorandum to its district offices, which reads in part: “At the recent claims managers’ conference, State Fund president Jack Webb gave a clear and straightforward message. With the possibility of Workers’ Compensation reform looming, we must face the future in a strong financial condition.” SCIF raised no objection.

With respect to the second document, Smith testified he had received the October 3, 1988, issue of the Weekly Insider, a publication of the Independent Insurance Agents and Brokers of California, which referred to SCIF’s Webb as follows: “Jack Webb, [SCIF] president, said he is increasing retention[s] because he believes the State Fund will need stronger reserves in the future. ‘The minimum rate law, the backbone of the successful Workers’ Compensation business in California, is at great risk,’ said Webb. ‘Indeed, it may be abolished. I want to have the cash in — ’ ” At this point, SCIF objected on the grounds of hearsay and lack of foundation. The trial court overruled the objections, expressly referring to an earlier, in-chambers ruling that hearsay based upon documents such as SCIF’s reserving manual were proper. Smith continued to read to the jury: “ T want to have the cash in the bank to administer the State Fund under an open rating system.’ ” Smith then stated his opinion that “they revised the reserve standards to maximum probable potential in anticipation of California open rating, so they would have more cash in the bank.” Smith explained to the jury that “open rating” meant that the rating market was being opened to more competition, a description with which James Neary, an SCIF vice-president and actuary, agreed. The publication itself was not admitted into evidence.

SCIF asserts that the court erred in permitting Smith to rely upon the Weeky Insider, citing Luque v. McLean (1972) 8 Cal.3d 136, 148 [104 Cal.Rptr. 443, 501 P.2d 1163]. Luque is distinguishable. In Luque, a personal injury case stemming from the use of a defective lawnmower, the trial court was held to have properly refused to admit into evidence articles from Reader’s Digest, Today’s Health, and Consumer Bulletin “because none of those periodicals constitute^] the type of professional technical literature ‘that reasonably may be relied upon by an expert in forming an opinion’ (Evid. Code, § 801, subd. (b)).” {Id. at p. 148, fn. omitted.)

In the instant case, the Weekly Insider, for which SCIF has requested judicial notice, is a technical trade publication addressing matters of interest to the workers’ compensation insurance industry. The subject issue of the periodical includes an interview with Webb as SCIF’s president. Therein Webb explains that SCIF was changing its retention policy to increase its reserve levels in anticipation of an open rating system. Smith brought the article to the attention of the jury as part of his explanation of the basis for his opinion why SCIF had changed its reserve policy to increase its reserve levels as open rating loomed. Experts may rely upon hearsay in forming an opinion and may state the basis for the opinion. (Evid. Code, §§801, subd. (b), 802; Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860 [236 Cal.Rptr. 778].)

With regard to SCIF’s complaint that Smith read excerpts of the article to the jury, we note that when context is needed to understand what has transpired, the expert may read excerpts of the material relied upon to the jury. (See West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 861 [220 Cal.Rptr. 437, 59 A.L.R.4th 1].) Given a lay jury, additional material would be expected to be helpful.

Finally, the statements the Weekly Insider attributed to Webb were no different in tenor than those the SCIF internal memorandum attributed to Webb, and the latter were read into the record without objection. There was no error.

SCIF next assigns error to the decision of the trial court to grant a motion in limine brought by Notrica to bar SCIF from referring to itself as a “nonprofit” entity in what Notrica believed would be a bid for sympathy. SCIF argues that “Notrica’s theory was that SCIF had a financial motive to overreserve and mishandle claims” and therefore SCIF was entitled to produce evidence of its nonprofit status to persuade the jury it had no economic motive. We review the record.

In reaching its decision to grant the motion in limine, the trial court made the following comments: “I don’t think it’s really material to [Notrica’s] claim that you’ve mishandled claims that you’re nonprofit. I don’t see that [that] has anything to do with it. . . . What the jury is interested in is what were the acts of your people — I don’t know who they are — adjusters or whoever they are. Did they do acts that were consistent or inconsistent with good faith dealing with their insureds? That’s what’s before the jury. fl[] It’s not before the jury that the statute [Ins. Code, § 11775] says we’re nonprofit, ergo, we have no incentive to do anything. I don’t think that’s before the jury. . . . The issue before the jury is: What were the acts upon which the plaintiffs are saying they’re entitled to damages? You can meet those acts by showing what your people did, what the reserves were. . . . I’ve read in here that State Comp has put huge reserves on cases. fl[] Whether that’s proper or improper, I don’t know that. But I think the experts are the people who are going to tell the jury whether or not there was any misconduct because of those actions. Whether or not the statute says it’s nonprofit has anything to do with it, I don’t think it does.”

The trial court next indicated it had no problem with SCIF’s calling witnesses to explain why SCIF has reserves and their uses, but the witnesses were to do so without saying “We do it because we’re nonprofit.”

SCIF’s defense case included the following testimony.

SCIF executive vice-president Norm Hansen testified that all SCIF employees are civil servants, and that a sales representative incentive pay program had been tied to volume of sales but not to SCIF’s financial performance. Hansen further testified how SCIF differed from private insurers in the state: “[F]irst of all, most private insurance companies are either . . . publicly traded stock companies or are closed stock companies. The State Fund, as I mentioned earlier, is an agency, a public enterprise fund created by the legislature. We’re statutorily required to be no more nor less than self-supporting. And any excess monies that we have after expenses and provision for reasonable catastrophe reserve, and enough surplus to pay off our claims, has to be returned to our policyholders. fl[] That’s not necessarily the case with private insurers, whose first and foremost obligation would be to their stockholders.”

SCIF government relations officer Madden testified she did not know of any SCIF employee who received any kind of additional compensation because claim reserves were increased, nor did she know of anyone at SCIF who would benefit from any increase in reserves. SCIF expert witness Katherine Linnemann, a workers’ compensation claims consultant, testified she could not think of any reason why an insurer would want to have more cash on reserve than was necessary.

Finally, vice-president and actuary James Neary testified that for each policy year, an assessment of the total amount of premium received and the total losses incurred is calculated, and then SCIF devises a plan for returning the “excess profit” to the policyholders. Neary explained further: “State Fund is required by law to be neither more nor less than self-supporting. So we keep what we need for adequate reserves on losses and for what we need to carry as surplus and any excess beyond that is returned to the policyholders.” Neary also testified that SCIF employees are salaried and do not share in the profits of the organization.

As the above review demonstrates, the defense that SCIF actually mounted indicated that no SCIF employee had a personal economic motive to increase SCIF reserves. Use of the term “nonprofit” was not necessary to that defense. SCIF’s nonprofit status was also irrelevant vis-a-vis Webb’s personal vision of and goals for SCIF as its president, his leadership being the stimulus for the change in the reserve guidelines. Furthermore, SCIF counsel again reviewed the history and function of SCIF in argument to the jury, stressing that SCIF had no financial incentive to mistreat its insureds but did have an obligation to injured workers. The trial court did not abuse its discretion in limiting the evidence relating to SCIF’s status as a so-called nonprofit entity.

SCIF also asserts the trial court erroneously instructed the jury that SCIF’s “purpose and everyday function is indistinguishable from a private corporation.” The language is a correct statement of the law. (Courtesy Ambulance Service v. Superior Court, supra, 8 Cal.App.4th at p. 1516.)

SCIF next asserts that the trial court allowed “rank speculation” that SCIF overreserved the claims of all its insureds by a total of $788 million. SCIF points to testimony by its expert, Michael McMurray, criticizing statistical methods employed by Oakley Van Slyke, Notrica’s expert. On cross-examination McMurray testified Van Slyke’s reserve estimate for 1987 was $1 billion, 71 million, and that SCIF’s actual reserve was published as $1 billion, 57 million, 1.3 percent less than the estimate. McMurray further testified that Van Slyke’s estimate for 1988 was off by 2.2 percent; his estimate for 1989, 0.7 percent; his estimate for 1990, 0.1 percent; and for 1991, 2.5 percent. It was the responsibility of the jury to determine what weight to give Van Slyke’s testimony and McMurray’s criticisms. (People v. Henderson (1980) 107 Cal.App.3d 475, 486 [166 Cal.Rptr. 20]; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 275 [129 Cal.Rptr. 146].)

Finally on the subject of evidence, SCIF asserts that the trial court wrongly allowed Notrica to place evidence of SCIF’s financial condition before the jury during the bifurcated liability phase of the trial. We review the record.

Neary testified that SCIF as well as other insurance companies underwent a series of eleven “tests” at the end of 1988, three of those tests “directly addressed the adequacy of reserves,” and SCIF had “failed” those three tests. SCIF counsel displayed exhibit No. 390 to the jury using an overhead projector. The exhibit was titled “NAIC [National Association of Insurance Commissioners] Financial Ratio Results 1988” and indicated a document distribution date to SCIF management of May 18, 1989. Neary testified the document had been prepared by SCIF’s internal audit department based on NAIC’s report of SCIF’s test results.

At a sidebar conference, counsel for Notrica stated that if counsel for SCIF continued to display and take testimony regarding exhibit No. 390 data indicating SCIF had failed NAIC reserve tests, SCIF would be opening the door for Notrica’s examination of the issue of SCIF’s overall surplus. The trial court noted the exhibit indicated that seven of the remaining eight tests dealt with the surplus. Counsel for SCIF argued that the document merely reflected certain ratios and that his only intent was to explore “the one narrow relevant area” of the adequacy of claim reserves as indicated by the three selected ratios.

Counsel for Notrica responded: “[T]he obvious inference that [SCIF] want[s] this jury to draw from this line of questioning is that, ‘Hey, we had to do something. NAIC told us that we were not in very good shape, and we really needed to do it, so we’re just trying to comply with regulations.’ fl[] And I want to be able to then introduce, ‘If that’s the case, why do they have X-billion dollars or whatever of surplus?’ ”

Counsel for SCIF argued: “This is just a tabulation of certain ratio results. And we’re not trying to open up the financials of State Fund. These are just reported ratios that have to do, as Mr. Neary has testified, with the adequacy of State Fund’s reserves. It has nothing to do with the total amount of surplus or what State Fund does with its money.” Counsel noted that the “actual amounts upon which the ratios are based are not set forth.”

The trial court ruled that if SCIF continued to bring the unfavorable ratio information to the attention of the jury, Notrica would be permitted to cross-examine on the subject of surpluses.

SCIF elicited from Neary the following testimony. The role of the state Insurance Commissioner is to monitor the solvency of insurance companies for the protection of the insureds and injured workers. The NAIC tests listed in exhibit No. 390 were employed to evaluate every workers’ compensation insurance company in the United States. Three of the eleven tests specifically addressed injured worker claim reserve adequacy, and those were the tests Neary had previously testified SCIF had failed.

In its cross-examination of Neary, Notrica referred to exhibit Nos. 12 and 17 over the objections of SCIF that the financial information there displayed had been the subject of motions in limine and the bifurcation motion and went beyond the scope of direct, and that there was no evidence the reserve ratios it had presented were inaccurate or that the two exhibits were relevant. Notrica argued SCIF had waived any such grounds for exclusion. The trial court overruled SCIF’s objections.

Neary testified generally that to his knowledge exhibit No. 12 was accurate. Over further SCIF objections of relevance, lack of foundation, prejudice, and hearsay the trial court allowed exhibit No. 12 into evidence, finding it to be more probative than prejudicial.

With regard to exhibit No. 17, Neary testified he had no reason to believe that the statements contained therein were incorrect. The trial court overruled SCIF’s objections and admitted the exhibit into evidence.

Notrica also referred to exhibit No. 298, an SCIF 1990 annual financial statement. SCIF objected, referring to its motion in limine and asserting that the exhibit was irrelevant and beyond the scope of direct examination of SCIF’s Edgar DeSouza, the data processing manager of its home office, who had testified regarding the amount SCIF had paid on the Notrica claims files. Counsel for SCIF stated that DeSouza “never testified about payments versus premium.” Counsel for SCIF also objected that the exhibit was hearsay.

Counsel for Notrica stated that exhibit No. 298 was being offered to communicate to the jury that, although SCIF had paid more on its claims files than it had received in premiums, Notrica was no different than SCIF’s “normal aggregate situation” and that SCIF made its profits — some $420 million — from investment income. Counsel also argued that the exhibit was admissible without foundation as an official record certified by the State of California.

The trial court indicated it had previously overruled the motion in limine. It overruled the balance of the objections, stating it did not think the subject was beyond the scope of direct examination.

DeSouza then testified he was familiar with SCIF-generated financial information. The witness agreed the subject document stated that premiums in 1989 totaled some $1,807 million, but he indicated he could not attest that the number was accurate. DeSouza agreed further that while the document stated SCIF in 1989 had a net underwriting loss of some $20,573,000, it also stated SCIF had received investment income of some $370 million that year. For 1990, the document stated SCIF had a net underwriting loss of some $38 million and a net investment gain of some $420 million for the year. The trial court admitted the portion of the exhibit containing these figures into evidence over the repeated objections of SCIF.

SCIF asserts on appeal that evidence of its net income, surplus, investment earnings, underwriting profit, and dividends was irrelevant and violated Civil Code section 3295, subdivision (d). The argument is not persuasive.

The purpose behind Civil Code section 3295, which allows bifurcation and preclusion of evidence of a defendant’s wealth and profits during the liability phase of trial, is to minimize prejudice prior to the jury’s determination of a prima facie case of liability for punitive damages. (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777-778 [63 Cal.Rptr.2d 859, 937 P.2d 290].) However, such evidence is not to be excluded on the basis of prejudice when the information is relevant to liability. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 91-92 [227 Cal.Rptr. 806].) Here, SCIF presented the jury with data and testimony indicating that the NAIC had determined it was in financial difficulty prior to the time SCIF changed its reserving guideline to maximum probable potential cost. This evidence raised the specter of unpaid claims endangering the recovery of injured workers and threatening the peace of mind of insureds. The trial court properly allowed Notrica to bring before the jury evidence of SGF’s overall financial condition to place SCDF’s evidence in perspective. (Cf. King v. Karpe (1959) 170 Cal.App.2d 344, 350 [338 P.2d 979].)

IV. The Injunction

SCIF contends that the injunction cannot be supported legally or factually. It mounts several arguments.

SCEF reasons that since it is a “public entity,” citing Maxon Industries, Inc. v. State Compensation Ins. Fund, supra, 16 Cal.App.4th at page 1392, it is not a “person” within the meaning of the Unfair Competition Law and therefore Business and Professions Code section 17200 is not applicable. SCIF’s position is not well taken.

In Maxon, a pleading case, this court reversed the judgment of dismissal and held that the immunity from tort liability provided under the California Tort Claims Act (Gov. Code, § 810 et seq.) was not applicable to SCIF. In reaching this result, Maxon followed Courtesy Ambulance (8 Cal.App.4th at p. 1514), which had concluded that Insurance Code section 11873 excludes SCIF from Tort Claims Act immunities. (Maxon Industries, Inc. v. State Compensation Ins. Fund, supra, 16 Cal.App.4th at p. 1391.) Maxon commented:

“The Fund’s position about its liability in tort has not been consistent. In 1979, when the Fund sponsored the legislation which enacted Insurance Code section 11873, it advised the Legislature that the statute would exempt the Fund from the California Tort Claims Act. [Citation.] As the court in Courtesy Ambulance observed: ‘[N]othing in the materials before us suggests that [the Fund] took the paradoxical position that it nevertheless desired to confirm that it was covered by the substantive provisions of the law.’ [Citation.] It is apparent that the Fund sought to cast itself as a private enterprise rather than a public entity when it sponsored the 1979 legislation. It should be treated that way, receiving both the benefits and the disadvantages of that status.

“. . . applying Insurance Code section 11873 according to its terms does not lead to an ‘absurd’ result. To the contrary, it places the Fund in the same position as other insurers, a position the Fund itself was at pains to urge upon the Legislature and others, and which finds support from the very beginning of the workers’ compensation system in this state. [Citation.]

6C

“The Fund certainly is a ‘public entity.’ [Citation.][] The problem is that the entire act [Insurance Code section 11873] is made up of ‘provisions of the Government Code made applicable to state agencies generally or collectively.’ As such, under Insurance Code section 11873, it has no application to the Fund absent a specific provision naming the Fund. There is no such provision.” (16 Cal.App.4th at pp. 1391-1392.)

In other words, although SCIF is a “public entity,” SCIF is to be treated as a private enterprise pursuant to Insurance Code section 11873, legislation that SCIF sponsored.

Public entities have been held to be “persons” in other contexts as well. (City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 276-277 [123 Cal.Rptr. 1, 537 P.2d 1250] [defendant public entities are “persons” under adverse possession statute when water rights of another public entity are at issue and defendants’ sovereign governmental powers are not infringed]; Regents of University of California v. Superior Court (1976) 17 Cal.3d 533, 536-537 [131 Cal.Rptr. 228, 551 P.2d 844] [university was “person” under usury law with respect to its lending and investment policies, and no sovereign powers involved]; Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 210 [56 Cal.Rptr.2d 732] [how public hospital operates is simply the means by which it implements its sovereign power to guard the public health].)

SCIF, however, claims that Santa Monica Rent Control Bd. v. Bluvshtein (1991) 230 Cal.App.3d 308 [281 Cal.Rptr. 298] (Bluvshtein) supports its position. Bluvshtein is difficult to apply. In that case, the rent control board, created by city charter to administer and enforce the city’s rent control law, sought injunctive relief under the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) against owners of a residential building who had ceased operating the property as a residential rental property, evicted the tenants, and occupied the units themselves pursuant to an oral agreement. The trial court sustained the defendants’ demurrer to the three causes of action without leave to amend and dismissed the case. Of interest here is the reviewing court’s treatment of the third cause of action.

The third cause of action alleged unfair business practices in the form of violations of several laws. Plaintiff rent control board sought an injunction to compel compliance. Apparently, the board had relied upon Business and Professions Code section 17000 et seq., the Unfair Practices Act, as a basis for its action but had brought the case as a “person” under Business and Professions Code section 17204 (230 Cal.App.3d at pp. 311, 312-313), a part of what has come to be known as the Unfair Competition Law, Business and Professions Code section 17200 et seq., a separate and independent legislative scheme focusing on the redress of unlawful, unfair, or fraudulent business acts or practices (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 570 [71 Cal.Rptr.2d 731, 950 P.2d 1086]). The trial court ruled with respect to the third cause of action that “[n]o cause of action was or could be stated.” (230 Cal.App.3d at p. 313.)

In its affirmance, the Bluvshtein court also refers to the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.), although analyzing sections of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.).

The Bluvshtein court first quotes Business and Professions Code section 17204 of the Unfair Competition Law, which provided at that time: “Actions for injunction pursuant to this chapter [5] may be prosecuted by the Attorney General or any district attorney or any city attorney of a city having a population in . excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city or city and county having a full-time city prosecutor in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members, or the general public.” (Added by Stats. 1977, ch. 299, § 1, p. 1202; 230 Cal.App.3d at p. 318.)

The Bluvshtein court next references the definition of “person” as set forth in Business and Professions Code section 17201 of the Unfair Competition Law: “As used in this chapter [5], the term person shall mean and include natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.” (Added by Stats. 1977, ch. 299, § 1, p. 1202.)

The Bluvshtein court states without further discussion: “[Board] is a government agency; it is none of the things included in the definition of person. Therefore, it has no standing to bring an action for an injunction pursuant to the Unfair Practices Act [(Bus. & Prof. Code § 17000 et seq.)], and the demurer to the third cause of action was properly sustained.” (230 Cal.App.3d at p. 318.) No case has followed Bluvshtein.

Aside from the problematical holding of Bluvshtein, however, there is a fundamental factual distinction between that case and the one at bar: in Bluvshtein, the board sought to prosecute the case under Business and Professions Code section 17204; here, Notrica is prosecuting the case. SCIF does not argue that Notrica does not have standing under Business and Professions Codes sections 17201 and 17204. Given that SCIF “may transact workers’ compensation insurance required or authorized by law of this state to the same extent as any other insurer” (Ins. Code, § 11778), that it may “[s]ue and be sued in all actions arising out of any act or omission in connection with its business or affairs” (Ins. Code, § 11783, subd. (a)), the expansive scope of the Unfair Competition Law (Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at pp. 570-571), and the breadth of the definition of person provided by Business and Professions Code section 17201 (“natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons”), we conclude that SCIF cannot avoid the judgment of injunction on the ground that it does not qualify as a “person” within the meaning of the applicable legislation.

SCIF next argues that Business and Professions Code section 17200 does not apply because it did not engage in “unfair” business practices. SCIF does not refer to a statement of decision.

The judgment states the trial court found SCIF “has engaged in unfair business practices in violation of the statute.” Substantial evidence of SCIF’s activities, reviewed above, amply supports the finding.

SCIF next argues the injunction is “overreaching, unnecessary, and unworkable.” We disagree.

In the first part of the three-part injunction, the trial court ordered SCIF to delete the phrase “maximum probable potential” from its claims manuals, cease training its claims personnel to effect that guideline, and return to the immediately preceding practice. SCIF revisits its micromanagement argument. None of SCIF’s criticisms are applicable.

Second, SCIF is enjoined from denying all of its insureds access to workers’ compensation claims files in SCIF’s possession, pursuant to Labor Code section 3762 (fn. 11, ante). The reviews are to take place whether the insured is present or not present. The reviews are to take place at the appropriate SCIF district office upon the insured’s request, or at other mutually agreed-upon locations. SCIF is not required to produce any document that it is prohibited from disclosing to the employer under any applicable privilege or statutory prohibition, expressly referencing the attorney-client privilege and Insurance Code section 1877.4. SCIF asserts that Labor Code section 3762 is sufficient and that the injunctive relief is unnecessary. To the contrary, the injunction assures that SCIF will afford appropriate access to those of its insureds in existence before the effective date of the Labor Code section.

Third, the trial court enjoins SCIF from refusing to communicate directly with an insured’s authorized representative. In response, SCIF claims that “enforcement would require an inordinate amount of trial court supervision” and asks: “Is SCIF to be hauled into court every time an adjuster fails to promptly return a phone call or forgets to respond to a letter?” Posing what amounts to a “parade of horrors” is not a compelling argument. On its face, there is nothing irrational about allowing insureds to be represented by agents. (See, e.g., Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy (1992) 4 Cal.App.4th 963, 972-973 [6 Cal.Rptr.2d 193] [breadth of injunctive powers].) If SCIF comes to believe that the application of the injunction is too onerous, it may move for modification.

Finally in this section, SCIF references the finding of the trial court that SCIF had “engaged in unfair business practices in violation of the statute.” SCIF argues that Business and Professions Code section 17200 is unconstitutionally vague as applied to SCIF because the term unfair has been variously defined in section 17200 cases over the last several decades. The argument is not persuasive.

Business and Professions Code section 17200 presently reads: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and [deceptive advertising at section 17500 et seq.].” (Italics added.) Except for the addition of the italicized words, which were added under the 1992 amendment (Stats.