Amended in Senate April 9, 2014

Amended in Senate September 12, 2013

Amended in Senate September 3, 2013

Amended in Senate July 10, 2013

Amended in Senate June 25, 2013

Amended in Assembly April 16, 2013

Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 852


Introduced by Assembly Member Dickinson

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(Principal coauthor: Senator Steinberg)

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February 21, 2013


begin deleteAn act to amend Section 21155.4 of the Public Resources Code, relating to environmental quality. end deletebegin insertAn act to amend Section 17206 of, and to add Sections 6126.6, 6126.8, 6126.9, and 6134 to, the Business and Professions Code, relating to the State Bar, and declaring the urgency thereof, to take effect immediately.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 852, as amended, Dickinson. begin deleteEnvironmental quality: exemption. end deletebegin insertState Bar of California: enforcement actions.end insert

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(1) Existing law prohibits a person from practicing law in California, or from advertising or holding himself or herself out as practicing law, unless the person is an active member of the State Bar, or otherwise authorized, as specified, to practice law in this state. A violation of these provisions is a crime.

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begin insert

This bill would, for violations of the above-described provisions, require the State Bar to disclose, in confidence, the information in its investigation to the agency responsible for the criminal enforcement of these provisions or exchange that information with that agency. This bill would authorize the State Bar to request the Attorney General, a district attorney, or a city attorney acting as a local prosecutor, to bring an enforcement action or, if those entities have not elected to bring that action 60 days after that request, to bring a civil action in its own name, as specified. The bill would require the court, in a civil enforcement action by the State Bar for the unlawful practice of law, to impose a civil penalty not to exceed $2,500, to be paid to the State Bar. The bill would require the court to impose a civil penalty not to exceed $6,000 for the intentional violation of any injunction prohibiting the unlawful practice of law. The bill would require the court to consider, when applicable, additional relief provided under existing law and to award reasonable attorney’s fees and costs, as specified. The bill would require any penalty collected pursuant to these provisions to be paid into the treasury of the State Bar and used for specified purposes.

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begin insert

(2) Existing law requires the State Bar to issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system during the preceding calendar year, as specified.

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begin insert

This bill would additionally require the State Bar to annually report, by April 30 of each year, the number of complaints of the unauthorized practice of law received, requests for enforcement actions made to the Attorney General, a district attorney, or a city attorney acting as a local prosecutor pursuant to the provisions described in (1) above, and other unlawful practice of law proceedings filed by the State Bar, as specified, during the preceding calendar year. The bill would also require the report to include an accounting of any penalties collected pursuant to the provisions described in (1) above, and any expenditure of those funds, during the preceding calendar year. The bill would require the report to be made to the Assembly and Senate Committees on Judiciary and would authorize the information required by the report to be included in the Annual Discipline Report described above. The bill would also require the board of trustees to establish and administer an oversight committee of the board, the majority of whom would be nonattorneys, to oversee the State Bar’s investigation and enforcement duties, as specified.

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(3) Existing law makes a person who engages in unfair competition, as defined, liable for a civil penalty not to exceed $2,500 for each violation and requires that this penalty be assessed and recovered in a civil action brought in the name of the people of the State of California by specified persons in any court of competent jurisdiction. Existing law requires a court, for an unfair competition action brought at the request of a board within the Department of Consumer Affairs or a local consumer affairs agency, to determine the reasonable expenses incurred by the board or local agency in the investigation and prosecution of the action, and provides for the reimbursement of these expenses, as specified.

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This bill would similarly require the court, for an action brought at the request of the State Bar of California, to determine the reasonable expenses incurred by the State Bar in the investigation and prosecution of the action and provide for the reimbursement of these expenses.

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(4) This bill would declare that it is to take effect immediately as an urgency statute.

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The California Environmental Quality Act, commonly known as CEQA, requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

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This bill would revise the exemption from CEQA established by certain provisions of law for residential, employment center, and mixed-use development projects to require both the project and the appropriate specific plan to be consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy for which the State Air Resources Board has accepted as a metropolitan planning organization’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emissions reduction targets. Because a lead agency would be required to determine whether a project qualifies for this exemption, this bill would impose a state-mandated local program.

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This bill would provide that the bill becomes operative only if SB 743 of the 2013-14 Regular Session is enacted.

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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.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: begin deletemajority end deletebegin insert23end insert. Appropriation: no. Fiscal committee: begin deleteyes end deletebegin insertnoend insert. State-mandated local program: begin deleteyes end deletebegin insertnoend insert.

The people of the State of California do enact as follows:

P4    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 6126.6 is added to the end insertbegin insertBusiness and
2Professions Code
end insert
begin insert, to read:end insert

begin insert
3

begin insert6126.6.end insert  

Unless otherwise expressly provided, the remedies or
4penalties provided by this article are cumulative to each other and
5to the remedies or penalties available under all other laws of this
6state.

end insert
7begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 6126.8 is added to the end insertbegin insertBusiness and Professions
8Code
end insert
begin insert, to read:end insert

begin insert
9

begin insert6126.8.end insert  

(a) For a violation of Section 6125 or 6126, the State
10Bar shall disclose, in confidence, the information in its
11investigation to the agency responsible for the criminal
12enforcement of this article or exchange that information with that
13agency.

14(1) The State Bar may request the Attorney General, a district
15attorney, or a city attorney acting as a local prosecutor, to bring
16an enforcement action under Chapter 5 (commencing with Section
1717200) of Part 2 of Division 7.

18(2) If the Attorney General, a district attorney, or a city attorney
19has not elected to bring an enforcement action 60 days after a
20request from the State Bar or, with the approval of the Attorney
21General, a district attorney, or a city attorney acting as a local
22prosecutor, the State Bar may bring a civil action in its own name,
23as provided in Section 6030, for any violation of Section 6125 or
246126.

P5    1(3) Paragraphs (1) and (2) shall not apply to an action by the
2State Bar brought under Section 6126.7.

3(b) In a civil enforcement action brought by the State Bar, in
4addition to the remedies and relief available in Section 6030 and
5subdivision (e) of Section 6126.3, in those cases involving injury
6or likelihood of imminent harm to a client or the public, the court
7shall:

8(1) Impose a civil penalty in an amount not to exceed two
9thousand five hundred dollars ($2,500) for each violation of Section
106125 or 6126, to be paid to the State Bar. In determining the
11amount of the civil penalty to be assessed, the court shall consider
12 any relevant circumstances presented by any of the parties to the
13case, including, but not limited to, the nature and seriousness of
14the misconduct, the number of violations, the persistence of the
15misconduct, the length of time over which the misconduct occurred,
16the willfulness of the defendant’s misconduct, and the defendant’s
17assets, liabilities, and net worth.

18(2) Impose a civil penalty for the intentional violation of any
19injunction prohibiting the unlawful practice of law, in an amount
20not to exceed six thousand dollars ($6,000) for each violation, to
21be paid to the State Bar. If the conduct constituting the violation
22is of a continuing nature, each day of that conduct shall be deemed
23a separate and distinct violation. In determining the amount of the
24civil penalty to be assessed, the court shall consider any relevant
25circumstances, including, but not limited to, the extent of the harm
26caused by the conduct constituting a violation, the nature and
27persistence of the conduct, the length of time over which the
28conduct occurred, the defendant’s assets, liabilities, and net worth,
29and any corrective action taken by the defendant.

30(3) Consider, when applicable, the relief available in paragraphs
31(1) to (6), inclusive, of subdivision (a) of Section 6126.5.

32(4) Award to the State Bar reasonable attorney’s fees and costs
33and, in the court’s discretion, exemplary damages as provided in
34Section 3294 of the Civil Code.

35(c) In an action under subdivision (b), any penalty collected
36shall be paid into the treasury of the State Bar and the funds
37received shall be used as the board may direct for the purposes of
38providing relief to clients harmed by persons engaged in the
39unauthorized practice of law and for the purposes established
40pursuant to Section 6033. The board shall annually report any
P6    1collection and expenditure of funds authorized by this section to
2the Assembly and Senate Committees on Judiciary in the report
3described in Section 6126.9.

end insert
4begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 6126.9 is added to the end insertbegin insertBusiness and Professions
5Code
end insert
begin insert, to read:end insert

begin insert
6

begin insert6126.9.end insert  

Notwithstanding Section 10231.5 of the Government
7Code, the State Bar shall, by April 30 of each year, report annually
8to the Assembly and Senate Committees on Judiciary concerning
9the number of complaints of the unauthorized practice of law
10received, referrals made pursuant to subdivision (a) of Section
116126.8, and proceedings filed by the State Bar pursuant to Sections
126030, 6126.3, 6126.4, and 6126.8, during the preceding calendar
13year. The report shall also include an accounting of any collection
14and expenditure of funds authorized by Section 6126.8 during the
15preceding calendar year. The report required by this section may
16be included in the report described in Section 6086.15.

end insert
17begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 6134 is added to the end insertbegin insertBusiness and Professions
18Code
end insert
begin insert, to read:end insert

begin insert
19

begin insert6134.end insert  

The Board of Trustees shall establish and administer an
20oversight committee of the board, the majority of which shall be
21composed of public members under Section 6013.5, to oversee the
22State Bar’s investigation and enforcement of this article.

end insert
23begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 17206 of the end insertbegin insertBusiness and Professions Codeend insert
24begin insert is amended to read:end insert

25

17206.  

Civil Penalty for Violation of Chapter

26(a) Any person who engages, has engaged, or proposes to engage
27in unfair competition shall be liable for a civil penalty not to exceed
28two thousand five hundred dollars ($2,500) for each violation,
29which shall be assessed and recovered in a civil action brought in
30the name of the people of the State of California by the Attorney
31General, by any district attorney, by any county counsel authorized
32by agreement with the district attorney in actions involving
33violation of a county ordinance, by any city attorney of a city
34having a population in excess of 750,000, by any city attorney of
35any city and county, or, with the consent of the district attorney,
36by a city prosecutor in any city having a full-time city prosecutor,
37in any court of competent jurisdiction.

38(b) The court shall impose a civil penalty for each violation of
39this chapter. In assessing the amount of the civil penalty, the court
40shall consider any one or more of the relevant circumstances
P7    1presented by any of the parties to the case, including, but not
2limited to, the following: the nature and seriousness of the
3misconduct, the number of violations, the persistence of the
4misconduct, the length of time over which the misconduct occurred,
5the willfulness of the defendant’s misconduct, and the defendant’s
6assets, liabilities, and net worth.

7(c) If the action is brought by the Attorney General, one-half of
8the penalty collected shall be paid to the treasurer of the county in
9which the judgment was entered, and one-half to the General Fund.
10If the action is brought by a district attorney or county counsel,
11the penalty collected shall be paid to the treasurer of the county in
12which the judgment was entered. Except as provided in subdivision
13(e), if the action is brought by a city attorney or city prosecutor,
14one-half of the penalty collected shall be paid to the treasurer of
15the city in which the judgment was entered, and one-half to the
16treasurer of the county in which the judgment was entered. The
17aforementioned funds shall be for the exclusive use by the Attorney
18General, the district attorney, the county counsel, and the city
19attorney for the enforcement of consumer protection laws.

20(d) The Unfair Competition Law Fund is hereby created as a
21special account within the General Fund in the State Treasury. The
22portion of penalties that is payable to the General Fund or to the
23Treasurer recovered by the Attorney General from an action or
24settlement of a claim made by the Attorney General pursuant to
25this chapter or Chapter 1 (commencing with Section 17500) of
26Part 3 shall be deposited into this fund. Moneys in this fund, upon
27appropriation by the Legislature, shall be used by the Attorney
28General to support investigations and prosecutions of California’s
29consumer protection laws, including implementation of judgments
30obtained frombegin delete suchend deletebegin insert thoseend insert prosecutions or investigations and other
31activitiesbegin delete whichend deletebegin insert thatend insert are in furtherance of this chapter or Chapter
321 (commencing with Section 17500) of Part 3. Notwithstanding
33Section 13340 of the Government Code, any civil penalties
34deposited in the fund pursuant to the National Mortgage Settlement,
35as provided in Section 12531 of the Government Code, are
36continuously appropriated to the Department of Justice for the
37purpose of offsetting General Fund costs incurred by the
38Department of Justice.

39(e) If the action is brought at the request of a board within the
40Department of Consumerbegin delete Affairs orend deletebegin insert Affairs,end insert a local consumer
P8    1affairs agency,begin insert or the State Bar of California,end insert the court shall
2determine the reasonable expenses incurred by thebegin delete board or local
3agencyend delete
begin insert board, local agency, or the State Barend insert in the investigation
4and prosecution of the action.

5Before any penalty collected is paid out pursuant to subdivision
6(c), the amount of any reasonable expenses incurred by the board
7shall be paid to the Treasurer for deposit in the special fund of the
8board described in Section 205. If the board has no such special
9fund, the moneys shall be paid to the Treasurer. The amount of
10any reasonable expenses incurred by a local consumer affairs
11agency shall be paid to the general fund of the municipality or
12county that funds the local agency.begin insert The amount of any reasonable
13expenses incurred by the State Bar shall be paid to the State Bar
14to fund its investigation and enforcement of Sections 6125 and
156126.end insert

16(f) If the action is brought by a city attorney of a city and county,
17the entire amount of the penalty collected shall be paid to the
18treasurer of the city and county in which the judgment was entered
19for the exclusive use by the city attorney for the enforcement of
20consumer protection laws. However, if the action is brought by a
21city attorney of a city and county for the purposes of civil
22enforcement pursuant to Section 17980 of the Health and Safety
23Code or Article 3 (commencing with Section 11570) of Chapter
2410 of Division 10 of the Health and Safety Code, either the penalty
25collected shall be paid entirely to the treasurer of the city and
26county in which the judgment was entered or, upon the request of
27the city attorney, the court may order that up to one-half of the
28penalty, under court supervision and approval, be paid for the
29purpose of restoring, maintaining, or enhancing the premises that
30were the subject of the action, and that the balance of the penalty
31be paid to the treasurer of the city and county.

32begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

This act is an urgency statute necessary for the
33immediate preservation of the public peace, health, or safety within
34the meaning of Article IV of the Constitution and shall go into
35immediate effect. The facts constituting the necessity are:

end insert
begin insert

36The unauthorized practice of law and the victimization of
37consumers by nonlawyers continues to be a problem in California,
38as evidenced by the scams of persons who offered to assist
39homeowners with home loan modifications during the recent
40economic downturn and housing crisis, and by “notaries” who
P9    1continue to prey on immigrants. Proposed immigration reform
2legislation pending in the United States Congress has resulted in
3nonlawyers soliciting and taking advantage of immigrants with
4the promise of benefits and relief under that legislation before it
5is enacted. To prevent these nonattorneys from committing fraud
6upon immigrants and other consumers by engaging in the
7unauthorized practice of law, it is necessary that this act take effect
8immediately.

end insert
begin delete
9

SECTION 1.  

Section 21155.4 of the Public Resources Code,
10as added by Section 6 of Senate Bill 743 of the 2013-14 Regular
11Session, is amended to read:

12

21155.4.  

(a) Except as provided in subdivision (b), a
13residential, employment center, as defined in paragraph (1) of
14subdivision (a) of Section 21099, or mixed-use development
15project, including any subdivision, or any zoning, change that
16meets all of the following criteria is exempt from the requirements
17of this division:

18(1) The project is proposed within a transit priority area, as
19defined in subdivision (a) of Section 21099.

20(2) The project is undertaken to implement and is consistent
21with a specific plan for which an environmental impact report has
22been certified.

23(3) The project and specific plan are consistent with the general
24use designation, density, building intensity, and applicable policies
25specified for the project area in either a sustainable communities
26strategy or an alternative planning strategy for which the State Air
27Resources Board, pursuant to subparagraph (H) of paragraph (2)
28of subdivision (b) of Section 65080 of the Government Code, has
29accepted a metropolitan planning organization’s determination
30that the sustainable communities strategy or the alternative planning
31strategy would, if implemented, achieve the greenhouse gas
32emissions reduction targets.

33(b) Further environmental review shall be conducted only if any
34of the events specified in Section 21166 have occurred.

35

SEC. 2.  

This measure shall not become operative unless Senate
36Bill 743 of the 2013-14 Regular Session is enacted.

37

SEC. 3.  

No reimbursement is required by this act pursuant to
38Section 6 of Article XIII B of the California Constitution because
39a local agency or school district has the authority to levy service
40charges, fees, or assessments sufficient to pay for the program or
P10   1level of service mandated by this act, within the meaning of Section
217556 of the Government Code.

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