BILL NUMBER: AB 1262 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Audra Strickland
FEBRUARY 27, 2009
An act relating to taxation to amend
Section 425.16 of the Code of Civil Procedure, relating to ethics
.
LEGISLATIVE COUNSEL'S DIGEST
AB 1262, as amended, Audra Strickland. Sales and use
taxes: exemptions: charitable organizations. Ethics in
government.
Existing law provides that a cause of action against a person
arising from any act of that person in furtherance of the person's
right of petition or free speech under the United States or
California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.
The Political Reform Act of 1974, including provisions known as
the Ethics in Government Act of 1990, imposes ethical standards on
elected officials and candidates for elective or judicial office,
including provisions governing the acceptance of gifts, honoraria,
and campaign contributions. Existing law authorizes a person to sue
for injunctive relief to enjoin violations of, or to compel
compliance with, these provisions.
This bill would provide that the special motion to strike
described above shall not apply to a cause of action brought by a
private citizen pursuant to the provision authorizing a person to sue
for injunctive relief to enjoin violations of, or to compel
compliance with, the provisions imposing ethical standards on elected
officials and candidates for elective or judicial office.
The Sales and Use Tax Law imposes a tax on a retailer measured by
the gross receipts from the sale of tangible personal property sold
at retail in this state, or on the storage, use, or other consumption
in this state of tangible personal property purchased from a
retailer for storage, use, or other consumption in this state.
Existing law provides certain exemptions from sales and use taxes.
This bill would declare the intent of the Legislature to enact
legislation that would provide exemptions from the Sales and Use Tax
Law for sales and uses of tangible personal property by nonprofit
organizations that raise money for charitable causes.
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 425.16 of the Code
of Civil Procedure is amended to read:
425.16. (a) The Legislature finds and declares that there has
been a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. The Legislature finds and
declares that it is in the public interest to encourage continued
participation in matters of public significance, and that this
participation should not be chilled through abuse of the judicial
process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of
that person in furtherance of the person's right of petition or free
speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.
(2) In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible
in evidence at any later stage of the case, or in any subsequent
action, and no burden of proof or degree of proof otherwise
applicable shall be affected by that determination in any later stage
of the case or in any subsequent proceeding.
(c) In any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to recover
his or her attorney's fees and costs. If the court finds that a
special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable
attorney's fees to a plaintiff prevailing on the motion, pursuant to
Section 128.5.
(d) This section shall not apply to any
either of the following:
(1) Any enforcement action
brought in the name of the people of the State of California by the
Attorney General, district attorney, or city attorney, acting as a
public prosecutor.
(2) A cause of action brought by a private citizen pursuant to
subdivision (a) of Section 91003 of the Government Code.
(e) As used in this section, "act in furtherance of a person's
right of petition or free speech under the United States or
California Constitution in connection with a public issue" includes:
(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or
writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law; (3) any written or oral
statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest; (4) or
any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public
interest.
(f) The special motion may be filed within 60 days of the service
of the complaint or, in the court's discretion, at any later time
upon terms it deems proper. The motion shall be scheduled by the
clerk of the court for a hearing not more than 30 days after the
service of the motion unless the docket conditions of the court
require a later hearing.
(g) All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The
stay of discovery shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion and for
good cause shown, may order that specified discovery be conducted
notwithstanding this subdivision.
(h) For purposes of this section, "complaint" includes
"cross-complaint" and "petition," "plaintiff" includes
"cross-complainant" and "petitioner," and "defendant" includes
"cross-defendant" and "respondent."
(i) An order granting or denying a special motion to strike shall
be appealable under Section 904.1.
(j) (1) Any party who files a special motion to strike pursuant to
this section, and any party who files an opposition to a special
motion to strike, shall, promptly upon so filing, transmit to the
Judicial Council, by e-mail or facsimile, a copy of the endorsed,
filed caption page of the motion or opposition, a copy of any related
notice of appeal or petition for a writ, and a conformed copy of any
order issued pursuant to this section, including any order granting
or denying a special motion to strike, discovery, or fees.
(2) The Judicial Council shall maintain a public record of
information transmitted pursuant to this subdivision for at least
three years, and may store the information on microfilm or other
appropriate electronic media.
SECTION 1. It is the intent of the Legislature
to enact legislation that would provide exemptions from the Sales and
Use Tax Law for certain sales of, and the storage, use, or other
consumption of, tangible personal property sold or used by nonprofit
organizations that raise money for charitable causes.