BILL NUMBER: AB 2479 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Bass
FEBRUARY 19, 2010
An act to amend Sections 1708.7 and 1708.8 of the Civil Code,
relating to stalking.
LEGISLATIVE COUNSEL'S DIGEST
AB 2479, as introduced, Bass. Stalking: surveillance.
Existing law provides that a person is liable for the tort of
stalking when the defendant engaged in a pattern of conduct intended
to follow, alarm, or harass, resulting in the plaintiff reasonably
fearing for his or her safety or the safety of an immediate family
member. Under existing law, liability will be imposed if the
defendant has made a credible threat, as defined, with the intent to
cause the plaintiff reasonable fear, and has continued in his or her
pattern of conduct after the plaintiff demands that he or she cease.
This bill would additionally impose liability when the defendant
engaged in a pattern of conduct intended to place the victim under
surveillance, as defined, and would provide a definition of "follows"
for purposes of these provisions. The bill would specify that a
credible threat, as defined, may be made with a reckless disregard
for the safety of the plaintiff or that of an immediate family
member, and would provide an exception to the requirement that the
plaintiff demand that the defendant cease his or her pattern of
conduct when communication of that demand would have been impractical
or unsafe. The bill would also revise the definition of "harass" to
include conduct that limits the plaintiff's freedom of movement.
Under existing law, a defendant who commits an assault against a
plaintiff with the intent to capture any type of visual image, sound
recording, or other physical impression of the plaintiff is liable
for up to 3 times the amount of any general and special damages that
are proximately caused by this act, as well as punitive damages and a
civil fine of not less than $5,000 and not more than $50,000.
This bill would expand these provisions to impose liability when a
defendant falsely imprisons the plaintiff with the intent to capture
any type of visual image, sound recording, or other physical
impression of the plaintiff.
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 1708.7 of the Civil Code is amended to read:
1708.7. (a) A person is liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, place under surveillance, or
harass the plaintiff. In order to establish this element, the
plaintiff shall be required to support his or her allegations with
independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this paragraph, "immediate
family" means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who
regularly resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the plaintiff's
household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified
in paragraph (1), made a credible threat with either the
intent to place the plaintiff in reasonable fear for his or her
safety, or the safety of an immediate family member and
, or with reckless disregard for the safety of
the plaintiff or that of an immediate family member. In
addition, the plaintiff must have, on at least one occasion,
the plaintiff clearly and definitively demanded
that the defendant cease and abate his or her pattern of conduct and
the defendant persisted in his or her pattern of conduct ,
unless exigent circumstances made the communication of a demand
impractical or unsafe .
(B) The defendant violated a restraining order, including, but not
limited to, any order issued pursuant to Section 527.6 of the Code
of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. Constitutionally protected activity is not included within
the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including
that communicated by means of an electronic communication device, or
a threat implied by a pattern of conduct , including, but not
limited to, acts in which a defendant directly, indirectly, or
through third parties, by any action, method, device, or means,
follows, harasses, monitors, surveils, or threatens the plaintiff, or
interferes with or damages the plaintiff's property, or a
combination of verbal, written, or electronically communicated
statements and conduct, made with the intent and apparent ability to
carry out the threat so as to cause the person who is the target of
the threat to reasonably fear for his or her safety or the safety of
his or her immediate family.
(3) "Electronic communication device" includes, but is not limited
to, telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.
(4) "Follows" means to move in relative proximity to a person as
that person moves from place to place, or to remain in relative
proximity to a person who is stationary or whose movements are
confined to a small area. "Follows" does not mean instances where
these acts occur within the residence of the defendant.
(4)
(5) "Harass" means a knowing and willful course of
conduct directed at a specific person which serves no legitimate
purpose , and which either seriously alarms,
annoys, torments, or terrorizes the person, and which serves
no legitimate purpose or limits the person's freedom
of movement . The course of conduct must be such as would cause
a reasonable person to suffer substantial emotional distress, and
must actually cause substantial emotional distress to the person.
(6) "Place under surveillance" means remaining present outside the
plaintiff's school, place of employment, vehicle, residence, other
than the residence of the defendant, or other place occupied by the
plaintiff, with the intent to engage in a pattern of conduct that
places the plaintiff in reasonable fear for his or her safety or that
of an immediate family member.
(c) A person who commits the tort of stalking upon another is
liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(d) In an action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(f) This section shall not be construed to impair any
constitutionally protected activity, including, but not limited to,
speech, protest, and assembly.
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 or false imprisonment 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. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(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, actually induces, or
actually 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. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the 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 or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, 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), (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 the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) 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.