Bill Text: CA AB2368 | 2013-2014 | Regular Session | Amended
Bill Title: Civil law: libel: damages.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-04-28 - Re-referred to Com. on RLS. pursuant to Assembly Rule 96. From committee: Be re-referred to Com. on JUD. Re-referred. (Ayes 9. Noes 0.) (April 28). Re-referred to Com. on JUD. [AB2368 Detail]
Download: California-2013-AB2368-Amended.html
BILL NUMBER: AB 2368 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Wagner
FEBRUARY 21, 2014
An act to amend Section 1739.7 of the Civil Code,
relating to autographed sports memorabilia. An act to
amend Section 48a of the Civil Code, relating t o libel.
LEGISLATIVE COUNSEL'S DIGEST
AB 2368, as amended, Wagner. Civil law: obligations:
sports memorabilia. libel: damages.
Under existing law, in any action for damages for the publication
of a libel in a newspaper or of a slander by a radio broadcast, the
plaintiff is required to recover no more than special damages unless
a correction is demanded and the correction is not published or
broadcast. If a correction is demanded and the correction is not
published or broadcast in a specified manner in the newspaper or on
the broadcasting station, existing law authorizes the plaintiff to
recover general, special, and exemplary damages provided certain
requirements are met.
The bill would expand these provisions to additionally include
libel in a periodical or other medium, either in print or electronic
form.
Existing law regulates the sale or offer to sell by a dealer to a
consumer of a collectible in or from this state, as specified.
Existing law defines the term "collectible" to mean an autographed
sports item, as specified, sold or offered for sale in or from this
state by a dealer to a consumer for $5 or more.
This bill would revise the definition of "collectible" by
increasing the price of the sports item sold or offered for sale to
$15 or more. The bill also would make various technical,
nonsubstantive changes to these provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 48a of the Civil
Code is amended to read:
48a. 1. In any action for damages for the publication of a libel
in a newspaper , periodical, or other medium, either in print or
electronic form , or of a slander by radio broadcast,
plaintiff shall recover no more than special damages unless a
correction be demanded and be not published or broadcast, as
hereinafter provided. Plaintiff shall serve upon the publisher, at
the place of publication or broadcaster at the place of broadcast, a
written notice specifying the statements claimed to be libelous and
demanding that the same be corrected. Said notice and demand must be
served within 20 days after knowledge of the publication or broadcast
of the statements claimed to be libelous.
2. If a correction be demanded within said period and be not
published or broadcast in substantially as conspicuous a manner in
said newspaper , periodical, or other medium, either in print or
electronic form, or on said broadcasting station as were the
statements claimed to be libelous, in a regular issue thereof
published or broadcast within three weeks after such service,
plaintiff, if he pleads and proves such notice, demand and failure to
correct, and if his cause of action be maintained, may recover
general, special and exemplary damages; provided that no exemplary
damages may be recovered unless the plaintiff shall prove that
defendant made the publication or broadcast with actual malice and
then only in the discretion of the court or jury, and actual malice
shall not be inferred or presumed from the publication or broadcast.
3. A correction published or broadcast in substantially as
conspicuous a manner in said newspaper , periodical, or other
medium, either in print or electronic form, or on said
broadcasting station as the statements claimed in the complaint to be
libelous, prior to receipt of a demand therefor, shall be of the
same force and effect as though such correction had been published or
broadcast within three weeks after a demand therefor.
4. As used herein, the terms "general damages," "special damages,"
"exemplary damages" and "actual malice," are defined as follows:
(a) "General damages" are damages for loss of reputation, shame,
mortification and hurt feelings; feelings.
(b) "Special damages" are all damages which plaintiff alleges and
proves that he has suffered in respect to his property, business,
trade, profession or occupation, including such amounts of money as
the plaintiff alleges and proves he has expended as a result of the
alleged libel, and no other; other.
(c) "Exemplary damages" are damages which may in the discretion of
the court or jury be recovered in addition to general and special
damages for the sake of example and by way of punishing a defendant
who has made the publication or broadcast with actual
malice; malice.
(d) "Actual malice" is that state of mind arising from hatred or
ill will toward the plaintiff; provided, however, that such a state
of mind occasioned by a good faith belief on the part of the
defendant in the truth of the libelous publication or broadcast at
the time it is published or broadcast shall not constitute actual
malice.
SECTION 1. Section 1739.7 of the Civil Code is
amended to read:
1739.7. (a) As used in this section:
(1) "Autographed" means bearing the actual signature of a
personality signed by that individual's own hand.
(2) "Collectible" means an autographed sports item, including, but
not limited to, a photograph, book, ticket, plaque, sports program,
trading card, item of sports equipment or clothing, or other sports
memorabilia sold or offered for sale in or from this state by a
dealer to a consumer for fifteen dollars ($15) or more.
(3) "Consumer" means any natural person who purchases a
collectible from a dealer for personal, family, or household
purposes. "Consumer" also includes a prospective purchaser meeting
these criteria.
(4) "Dealer" means a person who is in the business of selling or
offering for sale collectibles in or from this state, exclusively or
nonexclusively, or a person who by his or her occupation holds
himself or herself out as having knowledge or skill peculiar to
collectibles, or to whom that knowledge or skill may be attributed by
his or her employment of an agent or other intermediary that by his
or her occupation holds himself or herself out as having that
knowledge or skill. "Dealer" includes an auctioneer who sells
collectibles at a public auction, and also includes persons who are
consignors or representatives or agents of auctioneers. "Dealer"
includes a person engaged in a mail order, telephone order, or cable
television business for the sale of collectibles.
(5) "Description" means any of the following:
(A) Any representation in writing, including, but not limited to,
a representation in an advertisement, brochure, catalog, flyer,
invoice, sign, or other commercial or promotional material.
(B) Any oral representation.
(C) Any representation included in a radio or television broadcast
to the public in or from this state.
(6) "Limited edition" means any collectible that meets all of the
following requirements:
(A) A company has produced a specific quantity of a collectible
and placed it on the open market.
(B) The producer of the collectible has posted a notice, at its
primary place of business, that it will provide any consumer, upon
request, with a copy of a notice that states the exact number of a
collectible produced in that series of limited editions.
(C) The producer makes available, upon request of a consumer,
evidence that the electronic encoding, films, molds, or plates used
to create the collectible have been destroyed after the specified
number of collectibles have been produced.
(D) The sequence number of the collectible and the number of the
total quantity produced in the limited edition are printed on the
collectible.
(7) "Mint condition" means any collectible sold on the open market
or through a private transaction that meets all of the following
requirements:
(A) The item has never been circulated, used, or worn.
(B) The item exhibits little or no sign of aging or degradation
caused by oxidation or exposure to sunlight as a result of its
display.
(C) The item is otherwise free from creases, blemishes, or marks.
(8) "Promoter" means a person who arranges, holds, organizes, or
presents a trade show featuring collectibles, autograph signings, or
both.
(9) "Person" means any natural person, partnership, corporation,
limited liability company, company, trust, association, or other
entity, however organized.
(b) Whenever a dealer, in selling or offering to sell to a
consumer a collectible in or from this state, provides a description
of that collectible as being autographed, the dealer shall furnish a
certificate of authenticity to the consumer at the time of sale. The
certificate of authenticity shall be in writing, shall be signed by
the dealer or his or her authorized agent, and shall specify the date
of sale. The certificate of authenticity shall be in at least
10-point boldface type and shall contain the dealer's true legal name
and street address. The dealer shall retain a copy of the
certificate of authenticity for not less than seven years. Each
certificate of authenticity shall do all of the following:
(1) Describe the collectible and specify the name of the sports
personality who autographed it.
(2) Either specify the purchase price and date of sale or be
accompanied by a separate invoice setting forth that information.
(3) Contain an express warranty, which shall be conclusively
presumed to be part of the bargain, of the authenticity of the
collectible. This warranty shall not be negated or limited by reason
of the lack of words such as "warranty" or "guarantee" or because the
dealer does not have a specific intent or authorization to make the
warranty or because any statement relevant to the collectible is or
purports to be, or is capable of being, merely the dealer's opinion.
(4) Specify whether the collectible is offered as one of a limited
edition and, if so, specify (A) how the collectible and edition are
numbered and (B) the size of the edition and the size of any prior or
anticipated future edition, if known. If the size of the edition and
the size of any prior or anticipated future edition is not known,
the certificate shall contain an explicit statement to that effect.
(5) Indicate whether the dealer is surety bonded or is otherwise
insured to protect the consumer against errors and omissions of the
dealer and, if bonded or insured, provide proof thereof.
(6) Indicate the last four digits of the dealer's resale
certificate number from the State Board of Equalization.
(7) Indicate whether the item was autographed in the presence of
the dealer and specify the date and location of, and the name of a
witness to, the autograph signing.
(8) Indicate whether the item was obtained or purchased from a
third party. If so, indicate the name and address of this third
party.
(9) Include an identifying serial number that corresponds to an
identifying number printed on the collectible item, if any. The
serial number shall also be printed on the sales receipt. If the
sales receipt is printed electronically, the dealer may manually
write the serial number on the receipt.
(c) No dealer shall represent an item as a collectible if it was
not autographed by the sports personality in his or her own hand.
(d) No dealer shall display or offer for sale a collectible in
this state unless, at the location where the collectible is offered
for sale and in close proximity to the collectible merchandise, there
is a conspicuous sign that reads as follows:
"SALE OF AUTOGRAPHED SPORTS MEMORABILIA: AS REQUIRED BY LAW, A
DEALER WHO SELLS TO A CONSUMER ANY SPORTS MEMORABILIA DESCRIBED AS
BEING AUTOGRAPHED MUST PROVIDE A WRITTEN CERTIFICATE OF AUTHENTICITY
AT THE TIME OF SALE. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE
INSURED TO ENSURE THE AUTHENTICITY OF ANY COLLECTIBLE SOLD BY THIS
DEALER."
(e) Any dealer engaged in a mail-order or telephone-order business
for the sale of collectibles in or from this state:
(1) Shall include the disclosure specified in subdivision (d), in
type of conspicuous size, in any written advertisement relating to a
collectible.
(2) Shall include in each television advertisement relating to a
collectible the following written onscreen message, which shall be
prominently displayed, easily readable, and clearly visible for no
less than five seconds, and which shall be repeated for five seconds
once during each four-minute segment of the advertisement following
the initial four minutes:
"A written certificate of authenticity is provided with each
autographed collectible, as required by law. This dealer may be
surety bonded or otherwise insured to ensure the authenticity of any
collectible sold by this dealer."
(3) Shall include as part of the oral message of each radio
advertisement for a collectible the disclosure specified in
subdivision (d).
(f) No dealer shall display or offer for sale a collectible in
this state at any trade show or similar event primarily featuring
sales of collectibles or other sports memorabilia that offers onsite
admission ticket sales unless, at each onsite location where
admission tickets are sold, there is prominently displayed a specimen
example of a certificate of authenticity.
(g) Any consumer injured by the failure of a dealer to provide a
certificate of authenticity containing the information required by
this section, or by a dealer's furnishing of a certificate of
authenticity that is false, shall be entitled to recover, in addition
to actual damages, a civil penalty in an amount equal to 10 times
actual damages, plus court costs, reasonable attorney's fees,
interest, and expert witness fees, if applicable, incurred by the
consumer in the action. The court, in its discretion, may award
additional damages based on the egregiousness of the dealer's
conduct. The remedy specified in this section is in addition to, and
not in lieu of, any other remedy that may be provided by law.
(h) No person shall represent himself or herself as a dealer in
this state unless he or she possesses a valid resale certificate
number from the State Board of Equalization.
(i) A dealer may be surety bonded or otherwise insured for
purposes of indemnification against errors and omissions arising from
the authentication, sale, or resale of collectibles.
(j) Whenever a promoter arranges or organizes a trade show
featuring collectibles and autograph signings, the promoter shall
notify any dealer who has agreed to purchase or rent space in this
trade show, in writing, of what the promoter will do if any laws of
this state are violated, including the fact that law enforcement
officials will be contacted when those laws are violated. This notice
shall be delivered to the dealer, at his or her registered place of
business, at the time the agreement to purchase space in the trade
show is made. The following language shall be included in each
notice:
"As a vendor at this collectibles trade show, you are a
professional representative of this hobby. As a result, you will be
required to follow the laws of this state, including laws regarding
the sale and display of collectibles, as defined in Section 1739.7 of
the Civil Code, forged and counterfeit collectibles and autographs,
and mint and limited edition collectibles. If you do not obey the
laws, you may be evicted from this trade show, be reported to law
enforcement, and be held liable for a civil penalty of 10 times the
amount of damages."
