Bill Text: CA AB524 | 2009-2010 | Regular Session | Amended

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

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Bill Title: Privacy.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 449, Statutes of 2009. [AB524 Detail]

Download: California-2009-AB524-Amended.html

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BILL NUMBER: AB 524	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 29, 2009

INTRODUCED BY   Assembly Member  Davis   Bass

    (   Principal coauthor:   Assembly Member
  Davis   ) 

                        FEBRUARY 25, 2009

    An act to amend Sections 1812.50, 1812.51, 1812.52,
1812.53, 1812.54, 1812.55, 1812.56, 1812.57, 1812.59, 1812.60,
1812.63, 1812.64, 1812.65, and 1812.67 of, and to amend the heading
of Title 2.4 (commencing with Section 1812.50) of Part 4 of Division
3 of, the Civil Code, relating to contracts.   An act to
amend Section 1708.8 of the Civil Code, relating to privacy. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 524, as amended,  Davis   Bass  .
 Contracts: acting schools.   Privacy. 

   Existing law provides that a person is liable for constructive
invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, or knowingly
trespasses or commits assault with the intent to capture, as
specified, any type of visual image, sound recording, or other
physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, as specified. The person who commits the
act is liable for up to 3 times the amount of general and special
damages, and may be liable for punitive damages. However, the sale,
transmission, publication, broadcast, or use of any image or
recording of the type, or under the circumstances, described does not
itself constitute a violation of that provision.  
   This bill would create an exception to the latter provision
regarding the sale, transmission, publication, broadcast, or use of
an image or recording if the person sold, transmitted, published,
broadcast, or used any image or recording of the type described in
the provision described above with actual knowledge the images or
recordings were obtained illegally. The bill would also make
technical changes.  
   Existing law regulates contracts for dance studios and other
services, defined to include ballroom or other types of dancing, and
lessons and other services, whether given to students individually or
in groups, as provided.  
   Existing law also provides that every contract for dance studio
lessons shall be in writing and shall not require payments or
financing by the buyer over a period in excess of one year. Existing
law allows for the cancellation of dance studio contracts, as
provided.  
   Existing law provides that any person who violates the provisions
relating to dance studio contracts is guilty of a misdemeanor.
 
   Existing law requires a dance studio to maintain a bond issued by
a surety company and filed with the Secretary of State. 

   This bill would add acting schools to these provisions. 

   Because this bill would impose additional requirements on acting
schools, the willful violation of which would be a crime, it would
impose a state-mandated local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


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

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) Individuals and their families have been harassed and
endangered by being persistently followed or chased in a manner that
puts them in reasonable fear of bodily injury, and in danger of
serious bodily injury or even death, by photographers, videographers,
and audio recorders attempting to capture images or other
reproductions of their private lives for commercial purposes. 

   (b) The legitimate privacy interests of individuals and their
families have been violated by photographers, videographers, and
audio recorders who physically trespass in order to capture images or
other reproductions of their private lives for commercial purposes,
or who do so constructively through intrusive modern visual or
auditory enhancement devices, such as powerful telephoto lenses and
hyperbolic microphones that enable invasion of private areas that
would otherwise be impossible without trespassing.  
   (c) Such harassment and trespass threaten not only professional
public persons and their families, but also private persons and
families for whom personal tragedies or circumstances beyond their
control create media interest.  
   (d) There is no right, under the United States Constitution or the
California Constitution, to persistently follow or chase another in
a manner that creates a reasonable fear of bodily injury, to
trespass, or to constructively trespass through the use of intrusive
visual or auditory enhancement devices.  
   (e) The right to privacy and respect for private lives of
individuals and their families must be balanced against the right of
the media to gather and report the news. The right of a free press to
report details of an individual's private life must be weighed
against the rights of the individual to enjoy liberty and privacy.

   SEC. 2.    Section 1708.8 of the   Civil
Code   is amended to read: 
   1708.8.  (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
   (b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
   (c) An assault committed with the intent to capture any type of
visual image, sound recording, or other physical impression of the
plaintiff is subject to subdivisions (d), (e), and (h).
   (d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section.
   (e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, instigates, induces, or
otherwise causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294.
   (f) Sale, transmission, publication, broadcast, or use of any
image or recording of the type, or under the circumstances, described
in this section shall not itself constitute a violation of this
section,  nor shall this section   unless the
person sold, transmitted, published, broadcast, or used any image or
recording of the type described in this section with actual knowledge
the images or recordings were obtained illegally. This section shall
not  be construed to limit all other rights or remedies of
plaintiff in law or equity, including, but not limited to, the
publication of private facts.
   (g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity, the suspected
violation of any administrative rule or regulation, a suspected
fraudulent insurance claim, or any other suspected fraudulent conduct
or activity involving a violation of law or pattern of business
practices adversely affecting the public health or safety.
   (h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a) 
,   or  (b)  , or (c)  .
   (i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
   (j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
   (k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
   (l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of plaintiff's private
affairs or concerns. Personal and familial activity does not include
illegal or otherwise criminal activity as delineated in subdivision
(f). However, "personal and familial activity" shall include the
activities of victims of crime in circumstances  where either
subdivision (a) or (b), or both,   under which
subdivision (a), (b), or (c)  would apply.
   (m) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application. 
  SECTION 1.    The heading of Title 2.4 (commencing
with Section 1812.50) of Part 4 of Division 3 of the Civil Code is
amended to read:

      TITLE 2.4.  CONTRACTS FOR DANCE STUDIO AND ACTING SCHOOL
LESSONS AND OTHER SERVICES

 
  SEC. 2.    Section 1812.50 of the Civil Code is
amended to read:
   1812.50.  (a) The Legislature finds that there exists in
connection with a substantial number of contracts for dance studio or
acting school lessons and other services, sales practices, and
business and financing methods which have worked a fraud, deceit,
imposition, and financial hardship upon the people of this state;
that existing legal remedies are inadequate to correct these abuses;
that the dance studio and acting school industry has a significant
impact upon the economy and well-being of this state and its local
communities; and that the provisions of this title relating to these
contracts are necessary for the public welfare.
   (b) The Legislature declares that the purpose of this title is to
safeguard the public against fraud, deceit, imposition, and financial
hardship, and to foster and encourage competition, fair dealing, and
prosperity in the field of dance studio and acting school lessons
and other services by prohibiting or restricting false or misleading
advertising, onerous contract terms, harmful financial practices, and
other unfair, dishonest, deceptive, destructive, unscrupulous,
fraudulent, and discriminatory practices by which the public has been
injured in connection with contracts for dance studio or acting
school lessons and other services.  
  SEC. 3.    Section 1812.51 of the Civil Code is
amended to read:
   1812.51.  As used in this title, "contract for dance studio or
acting school lessons and other services" means a contract for
instruction in ballroom or other types of dancing, and includes
acting school lessons, and lessons and other services, whether given
to students individually or in groups. This title does not include
contracts for professional services rendered or furnished by a person
licensed under Division 2 (commencing with Section 500) of the
Business and Professions Code, or contracts for instruction at
schools operating pursuant to the Education Code.  
  SEC. 4.    Section 1812.52 of the Civil Code is
amended to read:
   1812.52.  Every contract for dance studio or acting school lessons
and other services shall be in writing and shall be subject to this
title. A copy of the written contract shall be given to the customer
at the time he or she signs the contract.  
  SEC. 5.    Section 1812.53 of the Civil Code is
amended to read:
   1812.53.  (a) No contract for dance studio or acting school
lessons and other services shall require payments or financing by the
buyer over a period in excess of one year from the date the contract
is entered into, nor shall the term of any contract be measured by
the life of the buyer. However, the lessons and other services to be
rendered to the buyer under the contract may extend over a period not
to exceed seven years from the date the contract is entered into.
   (b) All contracts for dance studio or acting school lessons and
other services that may be in effect between the same seller and the
same buyer, the terms of which overlap for any period, shall be
considered as one contract for the purposes of this title. 

  SEC. 6.    Section 1812.54 of the Civil Code is
amended to read:
   1812.54.  (a) Every contract for dance studio or acting school
lessons and other services shall provide that performance of the
agreed-upon lessons will begin within six months from the date the
contract is entered into.
   (b) A contract for dance studio or acting school lessons and other
services may be canceled by the student at any time provided he or
she gives written notice to the dance studio or acting school at the
address specified in the contract. When a contract for dance studio
or acting school lessons and other services is canceled the dance
studio or acting school shall calculate the refund on the contract,
if any, on a pro rata basis. The dance studio or acting school shall
refund any moneys owed to the student within 10 days of receiving the
cancellation notice, unless the student owes the dance studio or
acting school money for studio lessons or other services received
prior to the cancellation, in which case any moneys owed the dance
studio or acting school shall be deducted by the dance studio from
the refund owed to the student and the balance, if any, shall be
refunded as specified above. A dance studio or acting school shall
not charge a cancellation fee, or other fee, for cancellation of the
contract by the student.
   (c) Every contract for dance studio or acting school lessons and
other services shall contain a written statement of the hourly rate
charged for each type of lesson for which the student has contracted.
If the contract includes dance studio or acting school lessons that
are sold at different per-hour rates, the contract shall contain
separate hourly rates for each different type of lesson sold. All
other services for which the student has contracted that are not
capable of a per-hour charge shall be set forth in writing in
specific terms. The statement shall be contained in the dance studio
or acting school contract before the contract is signed by the buyer.

   (d) Every dance studio or acting school subject to Sections
1812.64 and 1812.65 shall include in every contract for dance studio
or acting school lessons or other services a statement that the
studio is bonded and that information concerning the bond may be
obtained by writing to the office of the Secretary of State.
 
  SEC. 7.    Section 1812.55 of the Civil Code is
amended to read:
   1812.55.  No contract for dance studio or acting school lessons
and other services shall require or entail the execution of any note
or series of notes by the buyer which, when separately negotiated,
will cut off as to third parties any right of action or defense which
the buyer may have against the seller.  
  SEC. 8.    Section 1812.56 of the Civil Code is
amended to read:
   1812.56.  No right of action or defense arising out of a contract
for dance studio or acting school lessons and other services which
the buyer has against the seller, and which would be cut off by
assignment, shall be cut off by assignment of the contract to any
third party whether or not he or she acquires the contract in good
faith and for value unless the assignee gives notice of the
assignment to the buyer as provided in this section and, within 30
days of the mailing of notice, receives no written notice of the
facts giving rise to the claim or defense of the buyer. A notice of
assignment shall be in writing addressed to the buyer at the address
shown on the contract and shall identify the contract and inform the
buyer that he or she shall, within 30 days of the date of mailing of
the notice, notify the assignee in writing of any facts giving rise
to a claim or defense which he or she may have. The notice of
assignment shall state the name of the seller and buyer, a
description of the lessons and other services, the contract balance,
and the number and amount of the installments.  
  SEC. 9.    Section 1812.57 of the Civil Code is
amended to read:
   1812.57.  (a) Every contract for dance studio or acting school
lessons and other services shall contain a clause providing that if,
by reason of death or disability, the person agreeing to receive
lessons and other services is unable to receive all lessons and other
services for which he or she has contracted, the person and his or
her estate shall be relieved from the obligation of making payment
for lessons and other services other than those received prior to
death or the onset of disability, and that if the buyer has prepaid
any sum for lessons and other services so much of that sum as is
allocable to lessons and other services he or she has not taken shall
be promptly refunded to the buyer or his or her representative.
   (b) Notwithstanding the provisions of any contract to the
contrary, whenever the contract price is payable in installments and
the buyer is relieved from making further payments or entitled to a
refund under this section, the buyer shall be entitled to receive a
refund or refund credit of so much of the cash price as is allocable
to the lessons or other services not actually received by the buyer.
The refund of the finance charge shall be computed according to the
"sum of the balances method," also known as the "Rule of 78."
 
  SEC. 10.    Section 1812.59 of the Civil Code is
amended to read:
   1812.59.  Any contract for dance studio or acting school lessons
and other services which does not comply with the applicable
provisions of this title shall be void and unenforceable as contrary
to public policy.  
  SEC. 11.    Section 1812.60 of the Civil Code is
amended to read:
   1812.60.  Any contract for dance studio or acting school lessons
and other services entered into in reliance upon any willful and
false, fraudulent, or misleading information, representation, notice,
or advertisement of the seller shall be void and unenforceable.
 
  SEC. 12.    Section 1812.63 of the Civil Code is
amended to read:
   1812.63.  Any person who violates any provision of this title
relating to dance studio or acting school contracts is guilty of a
misdemeanor. Any superior court of this state has jurisdiction in
equity to restrain and enjoin the violation of any of the provisions
of this title relating to dance studio or acting school contracts.
   The duty to institute actions for violation of those provisions of
this title, including equity proceedings to restrain and enjoin
violations, is hereby vested in the Attorney General, district
attorneys, and city attorneys. The Attorney General, any district
attorney, or any city attorney may prosecute misdemeanor actions or
institute equity proceedings, or both.
   This section shall not be deemed to prohibit the enforcement by
any person of any right provided by this or any other law. 

  SEC. 13.    Section 1812.64 of the Civil Code is
amended to read:
   1812.64.  Every dance studio or acting school shall maintain a
bond issued by a surety company admitted to do business in this
state. The principal sum of the bond shall be 25 percent of the dance
studio's or acting school's gross income from the studio business in
this state during the studio's last fiscal year, except that the
principal sum of the bond shall not be less than twenty-five thousand
dollars ($25,000) in the first or any subsequent year of operation.
   A copy of the bond shall be filed with the Secretary of State,
together with a declaration under penalty of perjury signed by the
owner of the studio stating the dance studio's or acting school's
gross income from the dance studio or acting school business in this
state during the last fiscal year. The information contained in the
declaration shall not be subject to public inspection. If the person
in whose name the bond is issued severs his or her relationship with
the bonded dance studio or acting school, the new owner shall, as a
condition of doing business, notify the Secretary of State of the
change of ownership and of proof of compliance with Sections 1812.64
and 1812.65.  
  SEC. 14.    Section 1812.65 of the Civil Code is
amended to read:
   1812.65.  The bond required by Section 1812.64 shall be in favor
of the State of California for the benefit of any person who, after
entering into a contract for dance studio or acting school lessons
and other services with the dance studio or acting school, is damaged
by fraud or dishonesty or failure to provide the services of the
studio in performance of the contract.  
  SEC. 15.    Section 1812.67 of the Civil Code is
amended to read:
   1812.67.  (a) Sections 1812.64 and 1812.65 do not apply to any
dance studio or acting school which requires or receives less than
fifty dollars ($50) in advance payments from or on behalf of each
student for dance studio or acting school lessons or other services
which are to be rendered by the studio in the future and such advance
payments are not required or received by the studio from each
student more frequently than once every 30 days.
   (b) Sections 1812.53, 1812.54, 1812.64, and 1812.65 do not apply
to a dance studio which only offers instruction in ballet, modern,
jazz, tap dance, or any combination thereof, to persons under 21
years of age pursuant to a contract for dance studio lessons that
provides all of the following: (1) a total payment of less than five
hundred dollars ($500), (2) that all agreed-upon lessons will be
offered within four months from the date the contract is entered, and
(3) that the contract may be canceled and all money paid for
instruction not yet received will be refunded within 10 days of
cancellation, if the dance student cancels within three days after
receiving the first lesson, or if the dance student cancels at any
time after moving his or her residence to a location more than 15
miles from the location of the dance studio.
   (c) Sections 1812.53, 1812.54, 1812.64, and 1812.65 do not apply
to any organization that has qualified for a tax exemption under
Section 501(c)(3) of the Internal Revenue Code and which receives a
direct grant of funds from the California Arts Council. 

  SEC. 16.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.