BILL NUMBER: AB 2765 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Committee on Judiciary (Feuer (Chair), Brownley,
Evans, Jones, Lieu, and Monning)
FEBRUARY 25, 2010
An act to amend Section 1281.96 338
of the Code of Civil Procedure, relating to arbitration
civil actions .
LEGISLATIVE COUNSEL'S DIGEST
AB 2765, as amended, Committee on Judiciary. Consumer
arbitration cases: disclosures. Civil actions:
statutes of limitation: theft.
Existing law provides that a civil action, in the case of a theft,
shall be commenced within 3 years. Existing law provides that in the
case of a theft of any article of historical, interpretive,
scientific, cultural, or artistic significance, a cause of action is
not deemed to have accrued until the discovery of the whereabouts of
the article by the aggrieved party, his or her agent, or a law
enforcement agency.
This bill would authorize a civil action against a museum,
gallery, auctioneer, or art dealer for the recovery of an article of
historical, interpretive, scientific, cultural, or artistic
significance to be commenced within 6 years of the actual discovery
by the aggrieved party of the whereabouts of the article and of the
facts constituting the cause of action.
This bill contains Legislature's findings and declarations in
support of a finding that this bill is in agreement and conformity
with a specified court decision.
Existing law regulates arbitration conducted pursuant to an
arbitration agreement, as specified. Existing law requires a private
arbitration company involved in consumer arbitration cases to make
certain information regarding those cases available to the public, as
specified.
This bill would extend these requirements to any arbitrator
involved in consumer arbitration cases.
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. (a) The Legislature finds and declares
the following:
(1) California's interest in determining the rightful ownership of
personal property of historical, interpretive, scientific, cultural,
and artistic significance is a matter of traditional state
competence, responsibility, and concern.
(2) Because objects of historical, interpretive, scientific,
cultural, and artistic significance often circulate in an underground
economy for many years before surfacing in museums or galleries,
existing statutes of limitation, which are solely the creatures of
the legislature, often present an inequitable procedural obstacle to
recovery of these objects by their rightful owner.
(3) Decisions from California's intermediate appellate courts have
reached differing conclusions as to whether the statute of
limitation based upon the "discovery of the whereabouts of the
article by the aggrieved party" rule in subdivision (c) of Section
338 of the Code of Civil Procedure was intended to apply to property
stolen prior to 1982, when the express discovery rule was enacted. In
Naftzger v. American Numismatic Society (1996) 42 Cal.App.4th 421,
the court held that the discovery rule applies to actions to recover
property stolen prior to 1982 because there was a discovery rule
implicit in the prior version of that statute.
(b) The Legislature finds and declares that the court's decision
in Naftzger v. American Numismatic Society properly construed the
Legislature's intent, as to the applicability of the discovery rule
for thefts occurring before 1982, and the Legislature hereby
abrogates any contrary holding.
SEC. 2. Section 338 of the Code of
Civil Procedure is amended to read:
338. Within three years:
(a) An action upon a liability created by statute, other than a
penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) (1) An action for taking, detaining, or
injuring any goods or chattels, including actions for the specific
recovery of personal property. The
(2) The cause of action in the
case of theft, as defined in Section 484 of the Penal Code, of any
article of historical, interpretive, scientific, or artistic
significance is not deemed to have accrued until the discovery of the
whereabouts of the article by the aggrieved party, his or her agent,
or the law enforcement agency that originally investigated the
theft.
(3) (A) Notwithstanding paragraphs (1) and (2), an action against
a museum, gallery, auctioneer, or dealer for specific recovery of an
article of historical, interpretive, scientific, cultural, or
artistic significance shall be commenced within six years of the
actual discovery by the aggrieved party of the whereabouts of the
article and of the facts constituting the cause of action.
(B) The provisions of this paragraph shall apply to property
taken, by theft, prior to 1982 regardless of whether or not an action
would have been barred by an applicable statute of limitation under
any other provision of law in effect prior to 1982.
(C) For purposes of this paragraph:
(i) "Actual discovery" means that the party bringing the action
has express knowledge of the identity and the whereabouts of the
person or entity that possesses the article of historical,
interpretive, scientific, cultural, or artistic significance.
Notwithstanding Section 19 of the Civil Code, "actual discovery" does
not include any constructive knowledge imputed by law.
(ii) "Auctioneer" means any individual who is engaged in, or who
by advertising or otherwise holds himself or herself out as being
available to engage in, the calling for, the recognition of, and the
acceptance of, offers for the purchase of goods at an auction as
defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii) "Dealer" means a person who holds a valid seller's permit
and who is actively and principally engaged in, or conducting the
business of, selling works of fine art or antiquities.
(iv) "Museum or gallery" shall include any public or private
organization or foundation operating as a museum or gallery.
(4) Section 361 shall not apply to an action brought pursuant to
paragraph (2) or (3).
(5) The provisions of this paragraph shall apply to any pending
matters, and any causes of action previously dismissed because of an
applicable statute of limitations shall be revived, without
prejudice, and determined in accordance with the provisions of this
paragraph.
(d) An action for relief on the ground of fraud or mistake. The
cause of action in that case is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the
fraud or mistake.
(e) An action upon a bond of a public official except any cause of
action based on fraud or embezzlement is not deemed to have accrued
until the discovery, by the aggrieved party or his or her agent, of
the facts constituting the cause of action upon the bond.
(f) (1) An action against a notary public on his or her bond or in
his or her official capacity except that any cause of action based
on malfeasance or misfeasance is not deemed to have accrued until
discovery, by the aggrieved party or his or her agent, of the facts
constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance
or misfeasance shall be commenced within one year from discovery, by
the aggrieved party or his or her agent, of the facts constituting
the cause of action or within three years from the performance of the
notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary
public on his or her bond or in his or her official capacity shall be
commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and
Professions Code. The cause of action in that case shall not be
deemed to have accrued until the discovery by the aggrieved party,
the Attorney General, the district attorney, the county counsel, the
city prosecutor, or the city attorney of the facts constituting
grounds for commencing the action.
(i) An action commenced under the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code). The cause of action in that case shall not be deemed to have
accrued until the discovery by the State Water Resources Control
Board or a regional water quality control board of the facts
constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property
under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section
39000) of the Health and Safety Code. These causes of action shall
not be deemed to have accrued until the discovery by the State Air
Resources Board or by a district, as defined in Section 39025 of the
Health and Safety Code, of the facts constituting grounds for
commencing the action under its jurisdiction.
(l) An action commenced under Section 1603.1, 1615, or 5650.1 of
the Fish and Game Code. These causes of action shall not be deemed to
have accrued until discovery by the agency bringing the action of
the facts constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel
of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.
SECTION 1. Section 1281.96 of the Code of Civil
Procedure is amended to read:
1281.96. (a) Except as provided in paragraph (2) of subdivision
(b), any arbitrator or private arbitration company that administers
or is otherwise involved in, a consumer arbitration, shall collect,
publish at least quarterly, and make available to the public in a
computer-searchable format, which shall be accessible at the Internet
Web site of the private arbitration company, if any, and on paper
upon request, all of the following information regarding each
consumer arbitration within the preceding five years:
(1) The name of the nonconsumer party, if the nonconsumer party is
a corporation or other business entity.
(2) The type of dispute involved, including goods, banking,
insurance, health care, employment, and, if it involves employment,
the amount of the employee's annual wage divided into the following
ranges: less than one hundred thousand dollars ($100,000), one
hundred thousand dollars ($100,000) to two hundred fifty thousand
dollars ($250,000), inclusive, and over two hundred fifty thousand
dollars ($250,000).
(3) Whether the consumer or nonconsumer party was the prevailing
party.
(4) On how many occasions, if any, the nonconsumer party has
previously been a party in an arbitration or mediation administered
by the private arbitration company.
(5) Whether the consumer party was represented by an attorney.
(6) The date the private arbitration company received the demand
for arbitration, the date the arbitrator was appointed, and the date
of disposition by the arbitrator or private arbitration company.
(7) The type of disposition of the dispute, if known, including
withdrawal, abandonment, settlement, award after hearing, award
without hearing, default, or dismissal without hearing.
(8) The amount of the claim, the amount of the award, and any
other relief granted, if any.
(9) The name of the arbitrator, his or her total fee for the case,
and the percentage of the arbitrator's fee allocated to each party.
(b) (1) If the information required by subdivision (a) is provided
by the private arbitration company in a computer-searchable format
at the company's Internet Web site and may be downloaded without any
fee, the company may charge the actual cost of copying to any person
who requests the information on paper. If the information required by
subdivision (a) is not accessible by the Internet, the company shall
provide that information without charge to any person who requests
the information on paper.
(2) Notwithstanding paragraph (1), a private arbitration company
that receives funding pursuant to Chapter 8 (commencing with Section
465) of Division 1 of the Business and Professions Code, and that
administers or conducts fewer than 50 consumer arbitrations per year
may collect and publish the information required by subdivision (a)
semiannually, provide the information only on paper, and charge the
actual cost of copying.
(c) This section shall apply to any consumer arbitration commenced
on or after January 1, 2003.
(d) No private arbitration company shall have any liability for
collecting, publishing, or distributing the information required by
this section.