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  AUGUST 11, 2014
	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   prohibit  a
contract or proposed contract for the sale or lease of consumer goods
or services  unlawful if it contains   from
including  a provision  requiring the consumer to waive
his or her   waiving the consumer's  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. 
seller or lessor or its employees or agents, or concerning the goods
or services.  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.  
protected under the bill.  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  prohibit or 
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 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.  
that hosts online consumer reviews or comments from removing a
statement that is otherwise lawful to remove. 
   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   may not include  a provision 
requiring the consumer to waive his or her   waiving the
consumer's  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.   agents, or
concerning the goods or services. 
   (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.   protected under this
section.  
   (b) The party that drafted the waiver provision has the burden of
proving that the waiver was knowing, voluntary, and intelligent.
 
   (c) 
    (b)  Any waiver of the provisions of this section is
contrary to public policy, and is void and unenforceable. 
   (d) 
    (c)  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) 
    (d)  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) 
    (e)  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  prohibit
or  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.   that
hosts online consumer reviews or comments from removing a statement
that is otherwise lawful to remove.