Bill Text: CA AB2365 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Contracts: unlawful contracts.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2014-09-09 - Chaptered by Secretary of State - Chapter 308, Statutes of 2014. [AB2365 Detail]

Download: California-2013-AB2365-Amended.html

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BILL NUMBER: AB 2365	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 12, 2014
	AMENDED IN ASSEMBLY  APRIL 24, 2014

INTRODUCED BY   Assembly Member John A. Pérez

                        FEBRUARY 21, 2014

   An act to add Section 1670.8 to the Civil Code, relating to
contracts.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2365, as amended, John A. Pérez. Contracts: unlawful contracts.

   Existing law generally regulates formation and enforcement of
contracts, including what constitutes an unlawful contract. Under
existing law a contract is unlawful if it is contrary to an express
provision of law, contrary to the policy of express law, though not
expressly prohibited, or otherwise contrary to good morals.
   This bill would declare a contract or proposed contract for the
sale or lease of consumer goods or services unlawful if it contains a
provision requiring the consumer to waive his or her right to make
any statement regarding the consumer's experience with a seller or
lessor or its employees or agents, unless the waiver was knowing,
voluntary, and intelligent, as specified. The bill would make it
unlawful to threaten or  to  seek to enforce, a provision
made unlawful under the bill, or to otherwise penalize a consumer for
making any statement regarding the consumer's experience with a
seller or lessor, or its employees or agent, absent the consumer's
knowing, voluntary, and intelligent waiver of his or her right to do
so. The bill would impose civil penalties upon any person who
violates the provisions of the bill, of $2,500 for the initial
violation and $5,000 for each subsequent violation, as well as an
additional penalty of $10,000 if the violation was willful,
intentional, or reckless. The bill would authorize the consumer, the
Attorney General, or a district attorney or city attorney to bring a
civil action for a violation of the provisions of the bill. The bill
would provide that the penalty set forth in the bill is not an
exclusive remedy, and does not affect any other relief or remedy
provided by law.  The bill would not limit any  
authority otherwise provided by law of a person or business to remove
an online consumer statement that is libelous, harassing, obscene,
vulgar, or sexually explicit, contains the personal information or
likeness of a person other than the consume   r, or violates
a person's civil right to be treated equal to all others no matter
what their sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status,
or sexual orientation. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1670.8 is added to the Civil Code, to read:
   1670.8.  (a) (1) A contract or proposed contract for the sale or
lease of consumer goods or services is unlawful if it includes a
provision requiring the consumer to waive his or her right to make
any statement regarding the consumer's experience with the seller or
lessor or its employees or agents, unless the waiver of this right
was knowing, voluntary, and intelligent.
   (2) It shall be unlawful to threaten or  to  seek to
enforce a provision made unlawful under this section, or to otherwise
penalize a consumer for making any statement regarding the consumer'
s experience with a seller or lessor, or its employees or agent,
unless the consumer has knowingly, voluntarily, and intelligently
waived his or her right to do so.
   (b) The party that drafted the waiver provision has the burden of
proving that the waiver was knowing, voluntary, and intelligent.
   (c) Any waiver of the provisions of this section is contrary to
public policy, and is void and unenforceable.
   (d) Any person who violates this section shall be subject to a
civil penalty not to exceed two thousand five hundred dollars
($2,500) for the first violation, and five thousand dollars ($5,000)
for the second and for each subsequent violation, to be assessed and
collected in a civil action brought by the consumer, by the Attorney
General, or by the district attorney or city attorney of the county
or city in which the violation occurred. When collected, the civil
penalty shall be payable, as appropriate, to the consumer or to the
general fund of whichever governmental entity brought the action to
assess the civil penalty.
   (e) In addition, for a willful, intentional, or reckless violation
of this section, a consumer or public prosecutor may recover a civil
penalty not to exceed ten thousand dollars ($10,000).
   (f) The penalty provided by this section is not an exclusive
remedy, and does not affect any other relief or remedy provided by
law.  This section shall not be construed to limit any authority
otherwise provided by law of a person or business to remove an online
consumer statement that is libelous, harassing, obscene, vulgar, or
sexually explicit, contains the personal information or likeness of a
person other than the consumer, or violates Section 51.