SECTIONS 29540-29546 - California Statutes

CORPORATIONS CODE

SECTION 29540-29546

29540. (a) Whenever it appears to the commissioner that any person
has engaged, or is about to engage, in any act or practice
constituting a violation of any provision of this law or any rule or
order under this law, the commissioner may in his or her discretion
bring an action in the name of the people of the State of California
in the superior court to enjoin the acts or practices or to enforce
compliance with this law or any rule or order under this law. Upon a
proper showing, a permanent or preliminary injunction, restraining
order, or writ of mandate shall be granted and a monitor, receiver,
conservator, or other designated fiduciary or officer of the court
may be appointed for the defendant or the defendant's assets, or
other ancillary relief may be granted as appropriate.
A receiver, monitor, conservator, or other designated fiduciary or
officer of the court appointed by the superior court pursuant to
this section may, with the approval of the court, exercise all of the
powers of the defendant's officers, directors, partners, trustees,
or persons who exercise similar powers and perform similar duties,
including the filing of a petition for bankruptcy. No action at law
or in equity may be maintained by any party against the commissioner,
or a receiver, monitor, conservator, or other designated fiduciary
or officer of the court by reason of their exercising these powers or
performing these duties pursuant to the order of, or with the
approval of, the superior court.
(b) If the commissioner determines it is in the public interest,
the commissioner may include in any action authorized by subdivision
(a) a claim for ancillary relief, including, but not limited to, a
claim for restitution, disgorgement, or damages on behalf of the
person injured by the act or practice constituting the subject matter
of the action, and the court shall have jurisdiction to award
additional relief.

29541. (a) The commissioner in his or her discretion (1) may make
public or private investigations within or outside of this state that
the commissioner deems necessary to determine whether any person has
violated or is about to violate any provision of this law or any
rule or order hereunder, or to aid the enforcement of this law or in
the prescribing of rules and forms under this law, and (2) may
publish information concerning any violation of this law or a rule or
order hereunder.
(b) For the purpose of any investigation or proceeding under this
law, the commissioner or any officer designated by the commissioner
may administer oaths and affirmations, subpoena witnesses, compel
their attendance, take evidence, and require the production of any
books, papers, correspondence, memoranda, agreements, or other
documents or records which the commissioner deems relevant or
material to the inquiry.
(c) In case of contumacy by, or refusal to obey a subpoena issued
to, any person, the superior court, upon application by the
commissioner, may issue to the person an order requiring him or her
to appear before the commissioner or the officer designated by the
commissioner, to produce documentary evidence, if so ordered, or to
give evidence touching the matter under investigation or in question.
Failure to obey the order of the court may be punished by the court
as a contempt.
(d) No person is excused from attending and testifying or from
producing any document or record before the commissioner, or in
obedience to the subpoena of the commissioner or any officer
designated by the commissioner or in any proceeding instituted by the
commissioner, on the ground that the testimony or evidence
(documentary or otherwise) required of him or her may tend to
incriminate him or her or subject him or her to a penalty or
forfeiture. However, no individual may be prosecuted or subjected to
any penalty or forfeiture for or on account of any transaction,
matter, or thing concerning which he or she is compelled, after
validly claiming his or her privilege against self-incrimination, to
testify or produce evidence (documentary or otherwise), except that
the individual testifying is not exempt from prosecution and
punishment for perjury or contempt committed in testifying.

29542. (a) If, in the opinion of the commissioner, any person is
engaging in any activity in violation of any provision of this law,
or rule or order under this law, the commissioner may order the
person to desist and refrain from the activity unless and until the
activity will not be in violation of any provision of this law or any
rule or order under this law.
(b) If after an order has been made under subdivision (a), a
request for hearing is filed in writing within one year of the date
of service of the order by the person to whom the order was directed,
a hearing shall be held in accordance with the Administrative
Procedure Act (Chapter 5, (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code), and the
commissioner shall have all of the powers granted under the
Administrative Procedure Act. Unless the hearing is commenced within
15 business days after the request is filed (or the person affected
consents to a later date), the order is rescinded.
If that person fails to file a written request for a hearing
within one year from the date of service of the order, the order
shall be deemed a final order of the commissioner and shall not be
subject to review by any court or agency, notwithstanding Section
29563.

29543. The commissioner may refer the evidence that is available
concerning any violation of this law, or of any rule or order under
this law, to the Attorney General or the district attorney of the
county in which the violation occurred, who may, with or without such
a reference, institute appropriate criminal proceedings under this
law. The commissioner and the commissioner's counsel, deputies, or
assistants may, upon request of the Attorney General or the district
attorney, assist the prosecutor in presenting the law or facts at the
trial.

29544. (a) Any person who willfully violates any provision of this
law, or who willfully violates any rule or order under this law,
shall be liable for a civil penalty not to exceed twenty-five
thousand dollars ($25,000) for each violation, which shall be
assessed and recovered in a civil action brought in the name of the
people of the State of California by the commissioner in any court of
competent jurisdiction.
The penalty collected shall be paid to the State Corporations Fund
to be used for the support of this division.
(b) As applied to the penalties for acts in violation of this
division, the remedies provided by this section and by other sections
of this division are not exclusive, and may be sought and employed
in any combination to enforce this division.
(c) No action shall be maintained to enforce any liability created
under subdivision (a) unless brought before the expiration of four
years after the act or transaction constituting the violation.

29545. (a) The commissioner may take actions that are authorized by
Section 9a of Title 7 of the United States Code (Section 6d of the
federal Commodity Exchange Act) as amended before or after the
effective date of this section.
(b) Nothing in this section shall be construed as a limitation on
the powers of the commissioner under this act or any other law
administered by the commissioner.

29546. The commissioner in his or her discretion may honor requests
from interested parties for interpretive opinions.