MOSK, J.—I dissent. This case should not be decided on the pleadings; plaintiffs are entitled to a day in court in which to prove, if they can, the economic loss they allegedly suffered and continue to suffer as a result of the purported illegal acts of defendants. The court below, and now a majority of this court, impose upon plaintiffs a pleading strait jacket neither compelled by precedent nor consistent with the design of antitrust statutes.
After two demurrers were sustained, plaintiffs filed a third amended complaint in which they comprehensively described the conduct of the defendants asserted to be unlawful. The complaint in essence charged that all of the activities were part of a single combination designed to injure plaintiffs. The trial court again sustained a demurrer, on the special ground that several causes of action were not separately stated.
Attempting to comply with the trial court’s directions, plaintiffs divided their fourth amended complaint into 11 counts, and it is those counts which the trial court and the Court of Appeal dissected on general demurrer with the deft touch of a scalpel ordinarily reserved for a special demurrer or motion to strike. An order of dismissal was subsequently entered, and this appeal follows.
It is elementary that if a complaint can withstand a general demurrer, an order sustaining demurrers without leave to amend is erroneous even though special demurrers should be sustained and motions to strike granted, (Wennerholm v. [329]Stanford University School of Medicine (1942) 20 Cal.2d 713, 718-719 [128 P.2d 522, 141 A.L.R. 1358].) I am convinced the complaint here states a cause of action under the Cartwright Act and that regardless of infirmities in form revealed by the special demurrers, the general demurrer should not have been sustained without leave to amend. Even if all others failed, counts 1, 5, 10 and 11 effectively charge violations of the Cartwright Act when the complaint is viewed pursuant to the rules of liberal pleading permissible thereunder.
The Cartwright Act, generally proscribing combinations in restraint of trade, is patterned after the federal Sherman and Clayton Acts, and California decisions consistently rely on federal decisions in interpreting our act. (People v. Building Maintenance etc. Assn. (1953) 41 Cal.2d 719, 724 et seq. [264 P.2d 31] ; Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 43 et seq. [172 P.2d 867]; People v. Santa Clara Valley Bowling etc. Assn. (1965) 238 Cal.App.2d 225, 232 [47 Cal.Rptr. 570] ; People v. Inlaid Bid Depository (1965) 233 Cal.App.2d 851, 860-861 [44 Cal.Rptr. 206] ; Shasta Douglas Oil Co. v. Work (1963) 212 Cal.App.2d 618, 625 [28 Cal.Rptr. 190].) Although Cartwright is couched in terms of prohibited conduct with criminal sanctions and the Attorney General is charged with its public enforcement, private enforcement is also authorized, deemed in the public interest, and encouraged. (Radovich v. National Football League (1957) 352 U.S. 445, 453-454 [1 L.Ed.2d 456, 462-463, 77 S.Ct. 390]; Lawlor v. National Screen Service (1955) 349 U.S. 322, 329 [99 L.Ed. 1122, 1128, 75 S.Ct. 865] ; Mach-Tronics. Inc. v. Zirpoli (9th Cir. 1963) 316 F.2d 820, 828.) Thus in Bruce’s Juices v. American Can Co. (1947) 330 U.S. 743, 751-752 [91 L.Ed. 1219, 1225-1226, 67 S.Ct. 1015], Justice Jackson emphasized the desirability of private enforcement of antitrust laws: "Where the interests of individuals or private groups or those who bear a special relation to the prohibition of a statute are identical with the public interest in having a statute enforced, it is not uncommon to permit them to invoke sanctions. This stimulates one set of private interest to combat transgressions by another without resort to governmental enforcement agencies. Such remedies have the advantage of putting back of such statutes a strong and reliable motive for enforcement which relieves the Government of cost of enforcement. ... It is clear Congress intended to use private self-interest as a means of enforcement and to arm injured persons with pri[330]vate means to retribution when it gave to any injured party a private cause of action in which his damages are to be made good threefold, with costs of suit and reasonable attorney’s fees.” As in the federal acts, the California statute provides that a private party injured because of an antitrust violation may recover treble damages and attorney fees, as well as costs. (Bus. & Prof. Code, § 16750, subd. (a).)
Pleading poses no unique problems under the Cartwright Act. By its express provisions, violations under the act may.be pleaded in general terms: “In any indictment, information or complaint for any offense named in this chapter, it is sufficient to state the purpose or effects of the trust or combination, and that the accused is a member of, acted with, or in pursuance of it, or aided or assisted in carrying out its purposes, without giving its name or description, or how, when and where it was created.” (Italics added.) (Bus. & Prof. Code, § 16756.) In reviewing the sufficiency of an information in People v. Sacramento Butchers’ etc. Assn. (1910) 12 Cal.App. 471, 484-485 [107 P. 712], the court said: “While in no manner vitiating the information, there was, in our opinion, no real necessity for alleging the acts constituting the actual accomplishment of the object or purpose of the combination or conspiracy. They constitute mere probative facts, since the gist of the crime of conspiracy is in its formation for an unlawful purpose, . . . Therefore, the acts constituting the actual execution of the purpose of a criminal conspiracy are only evidence of the existence of such conspiracy, which is the ultimate fact to be. proved in order to establish the wrongful act against which the statute inveighs.” (See also United States v Patten (1913) 226 U.S. 525 [57 L.Ed. 333, 33 S.Ct. 141, 44 L.R.A. N.S. 325].)
Although the code section does not qualify the word “complaint” as civil or criminal, defendants urge that the provisions for general pleading relate only to criminal charges and that one seeking treble damages in a civil • action must allege with specificity the particular conduct constituting the claimed conspiracy in restraint of trade, the overt acts thereunder, and the precise nature of the. damages resulting therefrom. Thus, it is asserted, the instant complaint fails to allege a violation of the Cartwright Act because it avers only generally that the defendants conspired with the intent of unlawfully restraining trade and competition, without describing with particularity or clarity facts which are [331]descriptive of the claimed times, places, and other circumstances of the formation of the alleged illegal combinations, the role played therein by each defendant, or the specific overt acts committed hi furtherance thereof.
I find no justification to hold that a private plaintiff, in seeking to assert an antitrust violation, must plead his cause with greater particularity than the state in an enforcement action. Although some earlier federal decisions held to a contrary view (Beegle v. Thomson (7th Cir. 1943) 138 F.2d 875, 881; Leonard v. Socony-Vacuum Oil Co. (W.D. Wis. 1942) 42 F.Supp. 369, 370-371; Westor Theatres v. Warner Bros. Pictures (D.N.J. 1941) 41 F.Supp. 757, 762), the more recent and prevailing federal eases hold that a private plaintiff need state no more than ultimate facts which, if true, would entitle him to recovery. (Niagara of Buffalo, Inc. v. Niagara Mfg. & Distributing Corp. (2d Cir. 1958) 262 F.2d 106, 107; New Home Appliance Center, Inc. v. Thompson (10th Cir. 1957) 250 F.2d 881, 883-884.) The question was considered in detail in Nagler v. Admiral Corp. (2d Cir. 1957) 248 F.2d 319. In rejecting the contention that an antitrust complaint must set out a detailed factual exposition, the court stated (at p. 325) : “In testing whether this is a sufficient statement of claim upon which to base a lawsuit, we ought practically to consider the alternatives, both what can be expected and asked of antitrust plaintiffs and what can be accomplished by compulsive orders. Here seems to be the rock upon which attempts below to achieve more particularized pleading have definitely foundered; for the judges’ directions double the bulk without increasing enlightenment, while they delay the cause and exhaust the time of several judges. ...”
There is no basis for distinguishing between the nature of the prohibited conduct on the ground that the act is enforced in civil rather than criminal proceedings. The Sacramento Butchers ease (1910) supra, 12 Cal.App. 471, has been relied upon in support of the proposition in civil eases that “The gravamen of the offense against the Cartwright Act is the mere formation of the combination or conspiracy for the unlawful purpose of restraining trade. ...” (Italics in original.) (People v. Santa Clara Valley Bowling etc. Assn. (1965) supra, 238 Cal.App.2d 225, 238 ; cf. Alfred M. Lewis, Inc. v. Warehousemen etc. Local No. 542 (1958) 163 Cal.App.2d 771, 783-784 [330 P.2d 53].) It is clear that the precise nature of the combination or conspiracy need not be alleged [332]or ultimately proved with particularity. “It is not the form of the combination or the particular means used but the result to be achieved that the statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. ’ ’ (American Tobacco Co. v. United States (1946) 328 U.S. 781, 809 [90 L.Ed. 1575, 1594, 66 S.Ct. 1125] ; see also Eastern States Lbr. Assn. v. United States (1914) 234 U.S. 600, 614 [58 L.Ed. 1490, 1500, 34 S.Ct. 951, L.R.A. 1915A 788].) Federal decisions, like the state cases of Santa Clara Valley and Alfred M. Lewis, Inc., make it abundantly clear that the conspiracy alone constitutes the actionable conduct. (United States v. SoconyVacuum Oil Co. (1940) 310 U.S. 150, 225, fn. 59 [84 L.Ed. 1129, 1168-1170, 60 S.Ct. 811].)
Defendant’s contention that the complaint is insufficient because it fails to allege public injury resulting from the alleged restraints is not meritorious. “Congress [has] determined its own criteria of public harm and it [is] not for the courts to decide whether in an individual case injury [has] actually occurred. . . . Congress having thus prescribed the criteria of the prohibitions, the courts may not expand them. Therefore, to state a claim upon which relief can be granted . . . allegations adequate to show a violation and, in a private treble damage action, that plaintiff was damaged thereby are all the law requires.” (Radiant Burners v. Peoples Gas Co. (1961) 364 U.S. 656, 660 [5 L.Ed.2d 358, 361, 81 S.Ct. 365].) A contention similar to that of defendants here was rejected in Klor’s v. Broadway Hale Stores (1959) 359 U.S. 207, 213-214 [3 L.Ed.2d 741, 745-746, 79 S.Ct. 705], as follows: “Monopoly can as surely thrive by the elimination of such small businessmen, one at the time, as it can be driving them out in large groups. In recognition of this fact the Sherman Act has consistently been read to forbid all contracts and combinations which ‘tend to create a monopoly,’ whether ‘the tendency is a creeping one’ or ‘one that proceeds at full gallop.’ International Salt Co. v United States, 332 U.S. 392, 396 [92 L.Ed. 20, 26, 68 S.Ct. 12].” (See also People v. Santa Clara Valley Bowling etc. Assn. (1965) supra, 238 Cal.App.2d 225, 235; People v. Inland Bid Depository (1965) supra, 233 Cal.App.2d 851, 860.)
In requiring specificity of allegations, the majority are apparently adapting classic conspiracy and fraud concepts to the Cartwright Act, In so doing, they improvidently muddy [333]the antitrust waters. While section 1 of the Sherman Act outlaws every “contract, combination in the form of trust or otherwise, or conspiracy” in restraint of trade (15 U.S.C., § 1), the Cartwright Act makes no reference whatever to conspiracy. It outlaws, rather, every “trust” (Bus. & Prof. Code, §16726) ; and the term “trust” is defined as “a combination of capital, skill or acts by two or more persons” for a number of specified purposes deemed by the Legislature to be deterimental to the economy of the state (Bus & Prof. Code, §16720).
Unstudied use of the term “conspiracy” in numerous Cartwright Act pleadings (see, e.g., Willis v. Santa Ana etc. Hospital Assn. (1962) 58 Cal.2d 806, 808 [26 Cal.Rptr. 640, 376 P.2d 568] ; People v. Santa Clara Valley Bowling etc. Assn. (1965) supra, 238 Cal.App.2d 225, 227) may be the cause of misleading the defendants here and the courts below into insisting upon the pleading elements of an ordinary conspiracy charge in an antitrust complaint. Thus while such cases as Wise v. Southern Pac. Co. (1963) 223 Cal.App.2d 50, 65 [35 Cal.Rptr. 652], demand not merely a conspiracy but also a “civil wrong producing damage to the plaintiff,” the United States Supreme Court has made it abundantly clear that in reality no such requirement exists in the antitrust field: “It is not the form of the combination or the particular means used but the result to be achieved that the [antitrust] statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition. ...” (American Tobacco Co. v. United States (1946) 328 U.S. 781, 809 [90 L.Ed. 1575, 1594, 66 S.Ct. 1125].)
Such has always been the law of antitrust, in both public and private actions. Justice Day spoke for the Supreme Court to the same effect years ago in what is now the leading case on this question: “ ' An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy, and may be prohibited or punished if the result be hurtful to the public or to the individual against whom the concerted action is directed. ’
[334]“When the retailer goes beyond his personal right, and, conspiring and combining with others of like purpose, seeks to obstruct the free course of interstate trade and commerce ... he exceeds his lawful rights, and such action brings him and those acting with him within the condemnation of the act of Congress. . . ” (Eastern States Lbr. Assn. v. United States (1914) supra, 234 U.S. 600, 614 [58 L.Ed. 1490, 1500].)
Any act, be it legal or illegal, when done pursuant to an agreement or combination the purpose or effect of which is to restrain trade in violation of the statute, is an act upon which relief can be granted to a private plaintiff as well as to a public agency. (Simpson v. Union Oil Co. (1964) 377 U.S. 13 [12 L.Ed.2d 98, 84 S.Ct. 1051]; Lessig v. Tidewater Oil Co. (9th Cir. 1964) 327 F.2d 459, 466.)
The distinction which the courts below failed to grasp is that, regardless of any need to allege overt acts in stating a cause of action for conspiracy under other statutes (cf. Pen. Code, §§182, 184, 1104), there is no such requirement in alleging an actionable antitrust violation. Fully applicable to a combination violative of the Cartwright Act is this summary of significant characteristics of federal requirements: “And it is likewise well settled that conspiracies under the Sherman Act are not dependent upon an overt act other than the act of conspiring. [Citations.] It is the 'contract, combination ... or conspiracy in restraint of trade or commerce ’ which § 1 of the Act strikes down, whether the concerted action be wholly nascent or abortive on the one hand, or successful on the other. [Citations.] And the amount of interstate or foreign trade involved is not material [citation] since §1 of the Act brands as illegal the character of the restraint not the amount of commerce affected. [Citations.] In view of these considerations a conspiracy to fix prices violates § 1 of the Act though no overt act is shown, though it is not established that the conspirators had the means available for accomplishment of their objective, and though the conspiracy embraced but a part of the interstate or foreign commerce in the commodity.” (United States v. SoconyVacuum Oil Co. (1940) supra, 310 U.S. 150, fn. 59, at p. 225 [84L.Ed. at p. 1169].)
California practice unquestionably conforms to the foregoing rule, as indicated in Alfred M. Lewis, Inc. v. Warehousemen etc. Local No. 542 (1958) supra, 163 Cal.App.2d [335771], 783-784: ‘ ‘ Under the Cartwright Act and similar antitrust legislation, the combination for a particular purpose constitutes the unlawful act. [Citations.] The prohibited combination comes into being through an agreement of two or more persons for the purpose of restraining trade or preventing competition. Conduct used to effect such an agreement may result in actionable damages or be the subject of an injunction, even though such conduct if not used to effect the agreement would be lawful. ’ ’
In construing application of the federal Clayton Act, Justice Stone wrote in Arrow-Hart & Hegeman Co. v. Commissioners (1934) 291 U.S. 587, 607 [78 L.Ed. 1007, 1018, 54 S.Ct. 532] (dissenting opinion), “there must be a balance between the general and the particular. When the courts are faced with interpretation of the particular, administration breaks down and the manifest purpose of the legislature is defeated unless it is recognized that, surrounding granted powers, there must be a penumbra which will give scope for practical operation. In carrying such schemes into operation the fuction of courts is constructive, not destructive, to make them, wherever reasonably possible, effective agencies for law enforcement and not to destroy them. ’ ’
For the foregoing reasons, and in order to provide an effective means for implementing the state Cartwright Act, neither a private plaintiff nor the state need plead a cause of action thereunder with the particularity required in a conspiracy or fraud action. (People v. Sacramento Butchers’ etc. Assn. (1910) supra, 12 Cal.App. 471, 484-485.)
The instant complaint alleges in count 1, and incorporates into all the remaining counts, the following: “Defendants have jointly conspired to and in the execution of the goals of the conspiracy carried out the acts herein set forth with the intent and result of unlawfully restraining trade and competition by preventing [plaintiffs] from selling their title policies, with the intent and result of unlawfully injuring competitors and destroying competition and which constitute unfair methods of competition. ’ ’ While perhaps it could be phrased more artfully, this allegation, under settled rules of liberal construction (Speegle v. Board of Fire Underwriters (1946) supra, 29 Cal.2d 34, 42) sufficiently states the “purpose or effects of the trust or combination,” and avers that each defendant “is a member of, acted with, or in pursuance of” the combination. (Bus. & Prof. Code, [336]§ 16756.) Although the allegation may be conclusionary in nature, the inclusion of such conclusionary matters with ultimate facts is permissible in certain situations Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463, 473-474 [20 Cal.Rptr. 609, 370 P.2d 313]).
It thus appears that plaintiffs have stated a cause of action under the Cartwright Act, a cause which has been incorporated into each of the 11 counts. The complaint may be specially demurrable, but it states at least one cause of action beyond the reach of a general demurrer. The sustaining of the general demurrers without leave to amend was therefore error. (Wennerholm v. Stanford University School of Medicine (1942) supra, 20 Cal.2d 713, 718-719 ; Eustace v. Dechter (1938) 28 Cal.App.2d 706, 710-711 [83 P.2d 523].)
I would reverse the judgment with directions to the trial court to vacate the orders sustaining the demurrers and granting the motions to strike, to overrule the general demurrers, and to rule on the points presented by the special demurrers and the motions to strike.