BILL NUMBER: AB 1670 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 6, 2007
PASSED THE ASSEMBLY SEPTEMBER 11, 2007
AMENDED IN SENATE JULY 3, 2007
AMENDED IN SENATE JUNE 26, 2007
AMENDED IN ASSEMBLY MAY 14, 2007
AMENDED IN ASSEMBLY APRIL 16, 2007
INTRODUCED BY Assembly Member Mendoza
FEBRUARY 23, 2007
An act to amend Sections 17900, 17903, 17910, 17911, 17913, 17914,
17915, 17917, 17922, 17923, 17926, 17927, and 17929 of the Business
and Professions Code, relating to business.
LEGISLATIVE COUNSEL'S DIGEST
AB 1670, Mendoza. Fictitious business name statements.
Existing law requires every person who regularly transacts
business in California for profit under a fictitious business name to
file and maintain a current fictitious business name statement.
Existing law requires a fictitious business name statement to contain
specified information, to be published in a newspaper of general
circulation in the county in which the principal place of business of
the registrant is located, except as specified, and to be signed as
specified with the county clerk where the business is located.
Existing law also requires a statement of abandonment of a fictitious
name to include certain information. Existing law authorizes a
county clerk to charge specified fees for filing a fictitious
business name, supplying a certified copy of the statement to a
registrant, or filing a statement of withdrawal, and authorizes a
county clerk to destroy a fictitious business name statement 4 years
after its expiration. Under existing law, a person who knowingly
executes, files, or publishes a false statement under the provisions
regulating fictitious business names is guilty of a crime.
This bill would revise the conditions under which a new fictitious
business name must be filed, and would revise the content of a
fictitious business form statement. The bill would revise the
signature requirements for a registrant, including specifying
signature requirements for a husband and wife or for domestic
partners, and would allow a person to also file a fictitious business
name statement in a county other than where the registrant's
principal place of business is located, as specified. The bill would
instead require the publication of a statement in a newspaper of
general circulation in the county where the fictitious business name
was filed or, under certain conditions, in an adjoining county to
where the fictitious business name statement was filed. The bill
would also require a statement of abandonment to include the file
number of the fictitious business name statement, and would revise
the information required on a statement of abandonment.
This bill would make technical, clarifying changes with respect to
the fees that the county clerk may charge for a certified copy of a
statement, the filing of a fictitious business name, the filing of a
statement of abandonment of use, or the filing of a statement of
withdrawal and would allow the destruction of proof of publication of
a statement and other references related to the fictitious business
name at the same time as the clerk may destroy the statement of a
fictitious business name. Because the bill would expand the crime of
filing a false statement by revising the requirements for a
statement, 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17900 of the Business and Professions Code is
amended to read:
17900. (a) (1) The purpose of this section is to protect those
dealing with individuals or partnerships doing business under
fictitious names, and it is not intended to confer any right or
advantage on individuals or firms that fail to comply with the law.
The filing of a fictitious business name certificate is designed to
make available to the public the identities of persons doing business
under the fictitious name.
(2) Nothing in this section shall be construed to impair or impede
the rebuttable presumption described in Section 14411.
(b) As used in this chapter, "fictitious business name" means:
(1) In the case of an individual, a name that does not include the
surname of the individual or a name that suggests the existence of
additional owners, as described in subdivision (c).
(2) In the case of a partnership or other association of persons,
other than a limited partnership that has filed a certificate of
limited partnership with the California Secretary of State pursuant
to Section 15621 or 15902.01 of the Corporations Code, a foreign
limited partnership that has filed an application for registration
with the California Secretary of State pursuant to Section 15692 or
15909.02 of the Corporations Code, a registered limited liability
partnership that has filed a registration pursuant to Section 15049
or 16953 of the Corporations Code, or a foreign limited liability
partnership that has filed an application for registration pursuant
to Section 15055 or 16959 of the Corporations Code, a name that does
not include the surname of each general partner or a name that
suggests the existence of additional owners, as described in
subdivision (c) and in Section 17901.
(3) In the case of a domestic or foreign corporation, any name
other than the corporate name stated in its articles of incorporation
filed with the California Secretary of State, in accordance with
subdivision (a) of Section 17910.5.
(4) In the case of a limited partnership that has filed a
certificate of limited partnership with the California Secretary of
State pursuant to Section 15621 or 15902.01 of the Corporations Code
and in the case of a foreign limited partnership that has filed an
application for registration with the California Secretary of State
pursuant to Section 15692 or 15902.02 of the Corporations Code, any
name other than the name of the limited partnership as on file with
the California Secretary of State.
(5) In the case of a limited liability company, any name other
than the name stated in its articles of organization and in the case
of a foreign limited liability company that has filed an application
for registration with the California Secretary of State pursuant to
Section 17451 of the Corporations Code, any name other than the name
of the limited liability company as on file with the California
Secretary of State, in accordance with subdivision (b) of Section
17910.5.
(c) A name that suggests the existence of additional owners within
the meaning of subdivision (b) is one that includes such words as
"Company," "& Company," "& Son," "& Sons," "& Associates," "Brothers,"
and the like, but not words that merely describe the business being
conducted.
SEC. 2. Section 17903 of the Business and Professions Code is
amended to read:
17903. As used in this chapter, "registrant" means a person or
entity who is filing or has filed a fictitious business name
statement, and who is the legal owner of the business.
SEC. 3. Section 17910 of the Business and Professions Code is
amended to read:
17910. Every person who regularly transacts business in this
state for profit under a fictitious business name shall do all of the
following:
(a) File a fictitious business name statement in accordance with
this chapter not later than 40 days from the time the registrant
commences to transact such business.
(b) File a new statement after any change in the facts, in
accordance with subdivision (b) of Section 17920.
(c) File a new statement when refiling a fictitious business name
statement.
SEC. 4. Section 17911 of the Business and Professions Code is
amended to read:
17911. This chapter does not apply to a nonprofit corporation or
association, including, but not limited to, organizations such as
churches, labor unions, fraternal and charitable organizations,
foundations, and similar organizations.
SEC. 5. Section 17913 of the Business and Professions Code is
amended to read:
17913. (a) The fictitious business name statement shall contain
all of the information required by this subdivision and shall be
substantially in the following form:
FICTITIOUS BUSINESS NAME STATEMENT
The following person (persons) is (are) doing
business as
*_______________________________________________
at ** _________________________________________:
*** ____________________________________________
______________________________________________
______________________________________________
______________________________________________
This business is conducted by **** ____________
The registrant commenced to transact
business under the fictitious busi-
ness name or names listed above on
***** ______________________________________
I declare that all information in this
statement is true and correct. (A reg-
istrant who declares as true information which
he or she knows to be false is
guilty of a crime.)
Signed__________________________________
Statement filed with the County Clerk of ___
County on_______________________________________
NOTICE--IN ACCORDANCE WITH SUBDIVISION (a) OF SECTION 17920, A
FICTITIOUS NAME STATEMENT GENERALLY EXPIRES AT THE END OF FIVE YEARS
FROM THE DATE ON WHICH IT WAS FILED IN THE OFFICE OF THE COUNTY
CLERK, EXCEPT, AS PROVIDED IN SUBDIVISION (b) OF SECTION 17920, WHERE
IT EXPIRES 40 DAYS AFTER ANY CHANGE IN THE FACTS SET FORTH IN THE
STATEMENT PURSUANT TO SECTION 17913 OTHER THAN A CHANGE IN THE
RESIDENCE ADDRESS OF A REGISTERED OWNER. A NEW FICTITIOUS BUSINESS
NAME STATEMENT MUST BE FILED BEFORE THE EXPIRATION.
THE FILING OF THIS STATEMENT DOES NOT OF ITSELF AUTHORIZE THE USE IN
THIS STATE OF A FICTITIOUS BUSINESS NAME IN VIOLATION OF THE RIGHTS
OF ANOTHER UNDER FEDERAL, STATE, OR COMMON LAW (SEE SECTION 14411 ET
SEQ., BUSINESS AND PROFESSIONS CODE).
(b) The statement shall contain the following information set
forth in the manner indicated in the form provided by subdivision
(a):
(1) Where the asterisk (*) appears in the form, insert the
fictitious business name or names. Only those businesses operated at
the same address and under the same ownership may be listed on one
statement.
(2) Where the two asterisks (**) appear in the form: If the
registrant has a place of business in this state, insert the street
address, and county, of his or her principal place of business in
this state. If the registrant has no place of business in this state,
insert the street address, and county, of his or her principal place
of business outside this state.
(3) Where the three asterisks (***) appear in the form: If the
registrant is an individual, insert his or her full name and
residence address. If the registrants are husband and wife, insert
the full name and residence address of both the husband and the wife.
If the registrant is a general partnership, copartnership, joint
venture, limited liability partnership, or unincorporated association
other than a partnership, insert the full name and residence address
of each general partner. If the registrant is a limited partnership,
insert the full name and residence address of each general partner.
If the registrant is a limited liability company, insert the name and
address of the limited liability company, as set out in its articles
of organization on file with the California Secretary of State, and
the state of organization. If the registrant is a trust, insert the
full name and residence address of each trustee. If the registrant is
a corporation, insert the name and address of the corporation, as
set out in its articles of incorporation on file with the California
Secretary of State, and the state of incorporation. If the
registrants are state or local registered domestic partners, insert
the full name and residence address of each domestic partner.
(4) Where the four asterisks (****) appear in the form, insert
whichever of the following best describes the nature of the business:
(i) "an individual," (ii) "a general partnership," (iii) "a limited
partnership," (iv) "a limited liability company," (v) "an
unincorporated association other than a partnership," (vi) "a
corporation," (vii) "a trust," (viii) "copartners," (ix) "husband and
wife," (x) "joint venture," (xi) "state or local registered domestic
partners," or (xii) "a limited liability partnership."
(5) Where the five asterisks (*****) appear in the form, insert
the date on which the registrant first commenced to transact business
under the fictitious business name or names listed, if already
transacting business under that name or names. If the registrant has
not yet commenced to transact business under the fictitious business
name or names listed, insert the statement, "Not applicable."
(c) The registrant shall declare that all of the information in
the statement is true and correct. A registrant who declares as true
any material matter pursuant to this section that he or she knows to
be false is guilty of a misdemeanor.
SEC. 6. Section 17914 of the Business and Professions Code is
amended to read:
17914. The statement shall be signed as follows:
(a) If the registrant is an individual, by the individual.
(b) If the registrants are husband and wife, by the husband or
wife.
(c) If the registrant is a general partnership, limited
partnership, limited liability partnership, copartnership, joint
venture, or unincorporated association other than a partnership, by a
general partner.
(d) If the registrant is a limited liability company, by a manager
or officer.
(e) If the registrant is a trust, by a trustee.
(f) If the registrant is a corporation, by an officer.
(g) If the registrant is a state or local registered domestic
partnership, by one of the domestic partners.
SEC. 7. Section 17915 of the Business and Professions Code is
amended to read:
17915. The fictitious business name statement shall be filed with
the clerk of the county in which the registrant has his or her
principal place of business in this state or, if the registrant has
no place of business in this state, with the Clerk of Sacramento
County. Nothing in this chapter shall preclude a person from filing a
fictitious business name statement in a county other than that where
the principal place of business is located, as long as the
requirements of this subdivision are also met.
SEC. 8. Section 17917 of the Business and Professions Code is
amended to read:
17917. (a) Within 30 days after a fictitious business name
statement has been filed pursuant to this chapter, the registrant
shall cause a statement in the form prescribed by subdivision (a) of
Section 17913 to be published pursuant to Section 6064 of the
Government Code in a newspaper of general circulation in the county
where the fictitious business name statement was filed or, if there
is no such newspaper in that county, in a newspaper of general
circulation in an adjoining county. If the registrant does not have a
place of business in this state, the notice shall be published in a
newspaper of general circulation in Sacramento County.
(b) Subject to the requirements of subdivision (a), the newspaper
selected for the publication of the statement should be one that
circulates in the area where the business is to be conducted.
(c) If a refiling is required because the prior statement has
expired, the refiling need not be published unless there has been a
change in the information required in the expired statement, provided
the refiling is filed within 40 days of the date the statement
expired.
(d) An affidavit showing the publication of the statement shall be
filed with the county clerk where the fictitious business name
statement was filed within 30 days after the completion of the
publication.
SEC. 9. Section 17922 of the Business and Professions Code is
amended to read:
17922. (a) Upon ceasing to transact business in this state under
a fictitious business name that was filed in the previous five years,
a person who has filed a fictitious business name statement shall
file a statement of abandonment of use of fictitious business name.
The statement shall be executed in the same manner as a fictitious
business name statement and shall be filed with the county clerk of
the county in which the person has filed his or her fictitious
business name statement. The statement shall be published in the same
manner as a fictitious business name statement and an affidavit
showing its publication shall be filed with the county clerk after
the completion of publication.
(b) The statement shall include:
(1) The name being abandoned and the street address of the
principal place of business.
(2) The date on which the fictitious business name statement
relating to the fictitious business name being abandoned was filed,
the file number, and the county where filed.
(3) In the case of an individual, the full name and residence
address of the individual.
(4) In the case of a husband and wife, the full name and residence
address of both the husband and the wife.
(5) In the case of a general partnership, a limited partnership,
copartners, a limited liability partnership, a joint venture, or an
unincorporated association other than a partnership, the full names
and residence addresses of all of the general partners.
(6) In the case of a corporation, the name and address of the
corporation as set forth in its articles of incorporation on file
with the California Secretary of State.
(7) In the case of a trust, the full name and residence address of
each of the trustees.
(8) In the case of a limited liability company, the name and
address of the limited liability company as set forth in its articles
of organization on file with the California Secretary of State.
(9) In the case of state or local registered domestic partners,
the full name and residence address of each domestic partner.
SEC. 10. Section 17923 of the Business and Professions Code is
amended to read:
17923. (a) Any person who is a general partner in a partnership
that is or has been regularly transacting business under a fictitious
business name may, upon withdrawing as a general partner, file a
statement of withdrawal from the partnership operating under a
fictitious business name. The statement shall be executed by the
person filing the statement in the same manner as a fictitious
business name statement and shall be filed with the county clerk of
the county where the partnership filed its fictitious business name
statement.
(b) The statement shall include:
(1) The fictitious business name of the partnership.
(2) The date on which the fictitious business name statement for
the partnership was filed, the file number, and the county where
filed.
(3) The street address of its principal place of business in this
state or, if it has no place of business in this state, the street
address of its principal place of business outside this state, if
any.
(4) The full names and residence addresses of the person or
persons withdrawing as partners.
(c) The statement of withdrawal from the partnership operating
under a fictitious business name shall be published in the same
manner as the fictitious business name statement and an affidavit
showing the publication of the statement shall be filed with the
county clerk after the completion of the publication.
(d) The withdrawal of a general partner does not cause a
fictitious business name statement to expire if the withdrawing
partner files a statement of withdrawal meeting the requirements of
this section.
SEC. 11. Section 17926 of the Business and Professions Code is
amended to read:
17926. (a) As used in this section, "statement" means a
fictitious business name statement, a statement of abandonment of use
of fictitious business name, or a statement of withdrawal from
partnership operating under fictitious business name.
(b) For a fee of two dollars ($2), the county clerk shall provide
any person who so requests a certified copy of any statement on file
in his or her office.
(c) A copy of a statement, when certified as provided in
subdivision (b), establishes a rebuttable presumption of all of the
following:
(1) The existence of the original statement.
(2) The execution of the statement by the person by whom it
purports to have been executed.
(3) The truth of the information required by Sections 17913,
17922, or 17923 that is contained in the statement.
(d) The presumptions established by subdivision (c) are
presumptions affecting the burden of producing evidence.
(e) All of the provisions of this section are subject to Section
54985 of the Government Code.
SEC. 12. Section 17927 of the Business and Professions Code is
amended to read:
17927. (a) The county clerk shall mark each fictitious business
name statement with a file number and the date of filing and shall
retain the original statement for his or her file. He or she may
destroy or otherwise dispose of the statement, including proof of
publication and any other references related to the fictitious
business name statement, four years after the statement expires.
(b) The county clerk shall mark each statement of abandonment of
use of fictitious business name or statement of withdrawal from
partnership operating under fictitious business name with a file
number and the date of filing. He or she may destroy or otherwise
dispose of the statement at the same time the fictitious business
name statement to which it relates is destroyed pursuant to
subdivision (a).
(c) In lieu of retaining the original statement on file, the
county clerk may retain a copy of the statement in accordance with
Section 26205.1 of the Government Code.
SEC. 13. Section 17929 of the Business and Professions Code is
amended to read:
17929. (a) The fee for filing a fictitious business name
statement is ten dollars ($10) for the first fictitious business name
and owner and two dollars ($2) for each additional fictitious
business name or owner filed on the same statement and doing business
at the same location. This fee covers the cost of filing and
indexing the statement (and any affidavit of publication), furnishing
one certified copy of the statement to the person filing the
statement, and the cost for notifying registrants of the pending
expiration of their fictitious business name statement.
(b) The fee for filing a statement of abandonment of use of a
fictitious business name is five dollars ($5). This fee covers the
cost of filing and indexing the statement, any affidavit of
publication, and furnishing one certified copy of the statement to
the person filing the statement.
(c) The fee for filing a statement of withdrawal from partnership
operating under fictitious business name is five dollars ($5). This
fee covers the cost of filing and indexing the statement, any
affidavit of publication, and furnishing one certified copy of the
statement to the person filing the statement.
(d) All of the provisions of this section are subject to Section
54985 of the Government Code.
SEC. 14. 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.