Bill Text: CA AB1680 | 2009-2010 | Regular Session | Enrolled
Bill Title: Civil rights: waiver of rights.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Vetoed) 2010-09-30 - Vetoed by Governor. [AB1680 Detail]
Download: California-2009-AB1680-Enrolled.html
BILL NUMBER: AB 1680 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 24, 2010
PASSED THE ASSEMBLY AUGUST 25, 2010
AMENDED IN SENATE AUGUST 19, 2010
AMENDED IN SENATE AUGUST 2, 2010
AMENDED IN ASSEMBLY APRIL 22, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Saldana
(Coauthors: Assembly Members Ammiano, Blumenfield, Brownley,
Jones, Lieu, Nava, John A. Perez, Skinner, and Torrico)
(Coauthors: Senators Hancock, Leno, and Pavley)
JANUARY 25, 2010
An act to amend Sections 51.7, 52, and 52.1 of the Civil Code,
relating to civil rights.
LEGISLATIVE COUNSEL'S DIGEST
AB 1680, Saldana. Civil rights: waiver of rights.
Existing civil rights provisions provide that all persons within
the jurisdiction of this state have the right to be free from any
violence, or intimidation by threat of violence, committed against
their persons or property because of political affiliation, or on
account of position in a labor dispute, or sex, race, color,
religion, ancestry, national origin, disability, or medical
condition, or because another person perceives them to have one or
more of those characteristics. Those civil rights provisions provide
civil remedies for violations of their provisions.
This bill would prohibit a person from requiring a waiver of the
protections afforded under those provisions as a condition of
entering into a contract for the provision of goods or services,
including the right to file and pursue a civil action or complaint
with, or otherwise notify, the Attorney General or any other public
prosecutor, or law enforcement agency, the Department of Fair
Employment and Housing, or any court or other governmental entity.
This bill would require any waiver of the protections afforded under
those provisions to be knowing and voluntary, and in writing, and
expressly not made as a condition of entering into the contract or as
a condition of providing or receiving goods or services. This bill
would provide that any person seeking the enforcement of a waiver of
the protections afforded under those civil rights provisions shall
have the burden of proving that the waiver was knowing and voluntary
and not made as a condition of the contract or of providing or
receiving the goods or services. The bill's provisions would apply to
contracts entered into, removed, altered, modified, or extended on
and after January 1, 2011. This bill would provide that its
provisions shall not be construed to negate other specified
provisions.
This bill would include legislative findings and declarations with
respect to the public policy underlying its provisions.
This bill would incorporate additional changes to Section 51.7 of
the Civil Code as proposed by AB 2706, to be operative only if AB
2706 and this bill are both enacted and become effective on or before
January 1, 2011, both bills amend those sections, and this bill is
enacted after AB 2706 is enacted.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares that it is the
policy of the State of California to ensure that all persons have the
full benefit of the rights, penalties, remedies, forums, and
procedures established by the Ralph Civil Rights Act and the Bane
Civil Rights Act, and that individuals shall not be deprived of those
rights, penalties, remedies, forums, or procedures through the use
of involuntary or coerced waivers.
(b) It is the purpose of this act to ensure that a contract to
waive any of the rights, penalties, remedies, forums, or procedures
under the Ralph Civil Rights Act or the Bane Civil Rights Act,
including any provision that has the effect of limiting the full
application or enforcement of any right, remedy, forum, or procedure
available under the Ralph Civil Rights Act or the Bane Civil Rights
Act, is a matter of voluntary consent, not coercion.
SEC. 2. Section 51.7 of the Civil Code is amended to read:
51.7. (a) All persons within the jurisdiction of this state have
the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of
political affiliation, or on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, or position in a
labor dispute, or because another person perceives them to have one
or more of those characteristics. The identification in this
subdivision of particular bases of discrimination is illustrative
rather than restrictive.
(b) (1) No person shall require another person to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
section, as a condition of entering into a contract for goods or
services, including the right to file and pursue a civil action or
complaint with, or otherwise notify, the Attorney General or any
other public prosecutor, or law enforcement agency, the Department of
Fair Employment and Housing, or any court or other governmental
entity.
(2) No person shall refuse to enter into a contract with, or
refuse to provide goods or services to, another person on the basis
that the other person refuses to waive any legal right, penalty,
remedy, forum, or procedure for a violation of this section,
including the right to file and pursue a civil action or complaint
with, or otherwise notify, the Attorney General or any other public
prosecutor, or law enforcement agency, the Department of Fair
Employment and Housing, or any other governmental entity.
(3) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section, including the right to
file and pursue a civil action or complaint with, or otherwise
notify, the Attorney General or any other public prosecutor, or law
enforcement agency, the Department of Fair Employment and Housing, or
any other governmental entity shall be knowing and voluntary, and in
writing, and expressly not made as a condition of entering into a
contract for goods or services or as a condition of providing or
receiving goods and services.
(4) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section that is required as a
condition of entering into a contract for goods or services shall be
deemed involuntary, unconscionable, against public policy, and
unenforceable. Nothing in this subdivision shall affect the
enforceability or validity of any other provision of the contract.
(5) Any person who seeks to enforce a waiver of any legal right,
penalty, remedy, forum, or procedure for a violation of this section
shall have the burden of proving that the waiver was knowing and
voluntary and not made as a condition of the contract or of providing
or receiving the goods or services.
(6) The exercise of a person's right to refuse to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
section, including a rejection of a contract requiring a waiver,
shall not affect any otherwise legal terms of a contract or an
agreement.
(7) This subdivision shall not apply to any agreement to waive any
legal rights, penalties, remedies, forums, or procedures for a
violation of this section after a legal claim has arisen.
(8) This subdivision shall apply to any agreement to waive any
legal right, penalty, remedy, forum, or procedure for a violation of
this section, including an agreement to accept private arbitration,
entered into, altered, modified, renewed, or extended on or after
January 1, 2011.
(c) This section does not apply to statements concerning positions
in a labor dispute that are made during otherwise lawful labor
picketing.
(d) Nothing in this section shall be construed to negate or
otherwise abrogate the provisions of Sections 1668 and 3513.
SEC. 2.5. Section 51.7 of the Civil Code is amended to read:
51.7. (a) All persons within the jurisdiction of this state have
the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of
political affiliation, or on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, or position in a
labor dispute, or because another person perceives them to have one
or more of those characteristics. The identification in this
subdivision of particular bases of discrimination is illustrative
rather than restrictive.
(b) (1) This section includes any violence, or intimidation by
threat of violence, committed against the person or property of a
homeless person because the person is, or is perceived to be, a
homeless person.
(2) For purposes of this section, "homeless person" means:
(A) A person who does not have a fixed, regular, and adequate
nighttime residence.
(B) A person that has a nighttime residence that constitutes any
of the following:
(i) A supervised, publicly or privately operated shelter
designated to provide temporary living accommodations, including, but
not limited to, welfare hotels, congregate shelters, and
transitional housing.
(ii) An institution that provides a temporary residence for
individuals intended to be institutionalized.
(iii) A public or private building or designated area that is not
ordinarily designed for, or ordinarily used for, sleeping
accommodations for persons.
(3) This subdivision shall not be construed to enlarge or diminish
an existing legal duty, if any, by an owner of residential rental or
commercial property to protect a homeless person from violence, or
intimidation by threats of violence, because the homeless person is
physically present on the owner's property or other property
controlled by the owner incidental to ownership of the rental
property.
(c) (1) No person shall require another person to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
section, as a condition of entering into a contract for goods or
services, including the right to file and pursue a civil action or
complaint with, or otherwise notify, the Attorney General or any
other public prosecutor, or law enforcement agency, the Department of
Fair Employment and Housing, or any court or other governmental
entity.
(2) No person shall refuse to enter into a contract with, or
refuse to provide goods or services to, another person on the basis
that the other person refuses to waive any legal right, penalty,
remedy, forum, or procedure for a violation of this section,
including the right to file and pursue a civil action or complaint
with, or otherwise notify, the Attorney General or any other public
prosecutor, or law enforcement agency, the Department of Fair
Employment and Housing, or any other governmental entity.
(3) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section, including the right to
file and pursue a civil action or complaint with, or otherwise
notify, the Attorney General or any other public prosecutor, or law
enforcement agency, the Department of Fair Employment and Housing, or
any other governmental entity shall be knowing and voluntary, and in
writing, and expressly not made as a condition of entering into a
contract for goods or services or as a condition of providing or
receiving goods and services.
(4) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section that is required as a
condition of entering into a contract for goods or services shall be
deemed involuntary, unconscionable, against public policy, and
unenforceable. Nothing in this subdivision shall affect the
enforceability or validity of any other provision of the contract.
(5) Any person who seeks to enforce a waiver of any legal right,
penalty, remedy, forum, or procedure for a violation of this section
shall have the burden of proving that the waiver was knowing and
voluntary and not made as a condition of the contract or of providing
or receiving the goods or services.
(6) The exercise of a person's right to refuse to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
section, including a rejection of a contract requiring a waiver,
shall not affect any otherwise legal terms of a contract or an
agreement.
(7) This subdivision shall not apply to any agreement to waive any
legal rights, penalties, remedies, forums, or procedures for a
violation of this section after a legal claim has arisen.
(8) This subdivision shall apply to any agreement to waive any
legal right, penalty, remedy, forum, or procedure for a violation of
this section, including an agreement to accept private arbitration,
entered into, altered, modified, renewed, or extended on or after
January 1, 2011.
(9) Nothing in this subdivision shall be construed to negate or
otherwise abrogate the provisions of Sections 1668 and 3513.
(d) This section does not apply to statements concerning positions
in a labor dispute which are made during otherwise lawful labor
picketing.
SEC. 3. Section 52 of the Civil Code is amended to read:
52. (a) Whoever denies, aids or incites a denial, or makes any
discrimination or distinction contrary to Section 51, 51.5, or 51.6,
is liable for each and every offense for the actual damages, and any
amount that may be determined by a jury, or a court sitting without a
jury, up to a maximum of three times the amount of actual damage but
in no case less than four thousand dollars ($4,000), and any
attorney's fees that may be determined by the court in addition
thereto, suffered by any person denied the rights provided in Section
51, 51.5, or 51.6.
(b) Whoever denies the right provided by Section 51.7 or 51.9, or
aids, incites, or conspires in that denial, is liable for each and
every offense for the actual damages suffered by any person denied
that right and, in addition, the following:
(1) An amount to be determined by a jury, or a court sitting
without a jury, for exemplary damages.
(2) A civil penalty of twenty-five thousand dollars ($25,000) to
be awarded to the person denied the right provided by Section 51.7 in
any action brought by the person denied the right, or by the
Attorney General, a district attorney, or a city attorney. An action
for that penalty brought pursuant to Section 51.7 shall be commenced
within three years of the alleged practice.
(3) Attorney's fees as may be determined by the court.
(c) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in conduct of resistance to the full
enjoyment of any of the rights described in this section, and that
conduct is of that nature and is intended to deny the full exercise
of those rights, the Attorney General, any district attorney or city
attorney, or any person aggrieved by the conduct may bring a civil
action in the appropriate court by filing with it a complaint. The
complaint shall contain the following:
(1) The signature of the officer, or, in his or her absence, the
individual acting on behalf of the officer, or the signature of the
person aggrieved.
(2) The facts pertaining to the conduct.
(3) A request for preventive relief, including an application for
a permanent or temporary injunction, restraining order, or other
order against the person or persons responsible for the conduct, as
the complainant deems necessary to ensure the full enjoyment of the
rights described in this section.
(d) Whenever an action has been commenced in any court seeking
relief from the denial of equal protection of the laws under the
Fourteenth Amendment to the Constitution of the United States on
account of race, color, religion, sex, national origin, or
disability, the Attorney General or any district attorney or city
attorney for or in the name of the people of the State of California
may intervene in the action upon timely application if the Attorney
General or any district attorney or city attorney certifies that the
case is of general public importance. In that action, the people of
the State of California shall be entitled to the same relief as if it
had instituted the action.
(e) Actions brought pursuant to this section are independent of
any other actions, remedies, or procedures that may be available to
an aggrieved party pursuant to any other law.
(f) Any person claiming to be aggrieved by an alleged unlawful
practice in violation of Section 51 or 51.7 may also file a verified
complaint with the Department of Fair Employment and Housing pursuant
to Section 12948 of the Government Code.
(g) This section does not require any construction, alteration,
repair, structural or otherwise, or modification of any sort
whatsoever, beyond that construction, alteration, repair, or
modification that is otherwise required by other provisions of law,
to any new or existing establishment, facility, building,
improvement, or any other structure, nor does this section augment,
restrict, or alter in any way the authority of the State Architect to
require construction, alteration, repair, or modifications that the
State Architect otherwise possesses pursuant to other laws.
(h) For the purposes of this section, "actual damages" means
special and general damages. This subdivision is declaratory of
existing law.
(i) Subdivisions (b) to (f), inclusive, shall not be waived by
contract except as provided in Section 51.7.
SEC. 4. Section 52.1 of the Civil Code is amended to read:
52.1. (a) If a person or persons, whether or not acting under
color of law, interferes by threat, intimidation, or coercion, or
attempts to interfere by threats, intimidation, or coercion, with the
exercise or enjoyment by any individual or individuals of rights
secured by the Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this state, the
Attorney General, or any district attorney or city attorney may bring
a civil action for injunctive and other appropriate equitable relief
in the name of the people of the State of California, in order to
protect the peaceable exercise or enjoyment of the right or rights
secured. An action brought by the Attorney General, any district
attorney, or any city attorney may also seek a civil penalty of
twenty-five thousand dollars ($25,000). If this civil penalty is
requested, it shall be assessed individually against each person who
is determined to have violated this section and the penalty shall be
awarded to each individual whose rights under this section are
determined to have been violated.
(b) Any individual whose exercise or enjoyment of rights secured
by the Constitution or laws of the United States, or of rights
secured by the Constitution or laws of this state, has been
interfered with, or attempted to be interfered with, as described in
subdivision (a), may institute and prosecute in his or her own name
and on his or her own behalf a civil action for damages, including,
but not limited to, damages under Section 52, injunctive relief, and
other appropriate equitable relief to protect the peaceable exercise
or enjoyment of the right or rights secured.
(c) An action brought pursuant to subdivision (a) or (b) may be
filed either in the superior court for the county in which the
conduct complained of occurred or in the superior court for the
county in which a person whose conduct complained of resides or has
his or her place of business. An action brought by the Attorney
General pursuant to subdivision (a) also may be filed in the superior
court for any county wherein the Attorney General has an office, and
in that case, the jurisdiction of the court shall extend throughout
the state.
(d) If a court issues a temporary restraining order or a
preliminary or permanent injunction in an action brought pursuant to
subdivision (a) or (b), ordering a defendant to refrain from conduct
or activities, the order issued shall include the following
statement: VIOLATION OF THIS ORDER IS A CRIME PUNISHABLE UNDER
SECTION 422.77 OF THE PENAL CODE.
(e) The court shall order the plaintiff or the attorney for the
plaintiff to deliver, or the clerk of the court to mail, two copies
of any order, extension, modification, or termination thereof granted
pursuant to this section, by the close of the business day on which
the order, extension, modification, or termination was granted, to
each local law enforcement agency having jurisdiction over the
residence of the plaintiff and any other locations where the court
determines that acts of violence against the plaintiff are likely to
occur. Those local law enforcement agencies shall be designated by
the plaintiff or the attorney for the plaintiff. Each appropriate law
enforcement agency receiving any order, extension, or modification
of any order issued pursuant to this section shall serve forthwith
one copy thereof upon the defendant. Each appropriate law enforcement
agency shall provide to any law enforcement officer responding to
the scene of reported violence, information as to the existence of,
terms, and current status of, any order issued pursuant to this
section.
(f) A court shall not have jurisdiction to issue an order or
injunction under this section, if that order or injunction would be
prohibited under Section 527.3 of the Code of Civil Procedure.
(g) An action brought pursuant to this section is independent of
any other action, remedy, or procedure that may be available to an
aggrieved individual under any other provision of law, including, but
not limited to, an action, remedy, or procedure brought pursuant to
Section 51.7.
(h) In addition to any damages, injunction, or other equitable
relief awarded in an action brought pursuant to subdivision (b), the
court may award the petitioner or plaintiff reasonable attorney's
fees.
(i) A violation of an order described in subdivision (d) may be
punished either by prosecution under Section 422.77 of the Penal
Code, or by a proceeding for contempt brought pursuant to Title 5
(commencing with Section 1209) of Part 3 of the Code of Civil
Procedure. However, in any proceeding pursuant to the Code of Civil
Procedure, if it is determined that the person proceeded against is
guilty of the contempt charged, in addition to any other relief, a
fine may be imposed not exceeding one thousand dollars ($1,000), or
the person may be ordered imprisoned in a county jail not exceeding
six months, or the court may order both the imprisonment and fine.
(j) Speech alone is not sufficient to support an action brought
pursuant to subdivision (a) or (b), except upon a showing that the
speech itself threatens violence against a specific person or group
of persons; and the person or group of persons against whom the
threat is directed reasonably fears that, because of the speech,
violence will be committed against them or their property and that
the person threatening violence had the apparent ability to carry out
the threat.
(k) No order issued in any proceeding brought pursuant to
subdivision (a) or (b) shall restrict the content of any person's
speech. An order restricting the time, place, or manner of any person'
s speech shall do so only to the extent reasonably necessary to
protect the peaceable exercise or enjoyment of constitutional or
statutory rights, consistent with the constitutional rights of the
person sought to be enjoined.
(l) The rights, penalties, remedies, forums, and procedures of
this section shall not be waived by contract except as provided in
Section 51.7.
SEC. 5. Section 2.5 of this bill incorporates amendments to
Section 51.7 of the Civil Code proposed by both this bill and AB
2706. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2011, (2) each bill
amends Section 51.7 of the Civil Code, and (3) this bill is enacted
after AB 2706, in which case Section 2 of this bill shall not become
operative.
