Amended in Senate June 15, 2014

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: Assembly Member Alejo)

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February 21, 2013


An act tobegin delete 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 deletebegin insert add Section 12801.2 to the Vehicle Code, relating to driver’s licenses. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 852, as amended, Dickinson. begin deleteState Bar of California: enforcement actions. end deletebegin insertDriver’s licenses: applications.end insert

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Existing law authorizes the Department of Motor Vehicles to issue original driver’s licenses to qualified persons. Existing law requires every application for an original or a renewal of a driver’s license to contain specified information about the applicant.

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This bill would prohibit a person from receiving financial compensation for the sole purpose of assisting an individual with a driver’s license application. The bill would impose a $2,500 civil penalty for a violation of this provision and would authorize the enforcement of this provision by the Attorney General or by the district attorney, county counsel, or city attorney of the location in which the violation occurred, as specified.

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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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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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(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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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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Vote: begin delete23 end deletebegin insertmajorityend insert. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

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

P3    1begin insert

begin insertSECTION 1.end insert  

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begin insertSection 12801.2 is added to the end insertbegin insertVehicle Codeend insertbegin insert, to
2read:end insert

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3

begin insert12801.2.end insert  

(a) A person shall not receive financial compensation
4for the sole purpose of filling out an original driver’s license
5application for an individual.

P4    1(b) A person in violation of this section is subject to a civil
2penalty of not more than two thousand five hundred dollars
3($2,500) for each offense. Actions for relief pursuant to this section
4may be commenced in a court of competent jurisdiction by the
5Attorney General, or by the district attorney, county counsel, or
6city attorney of the location in which the violation occurred.

7(c) Section 40000.1 does not apply to a violation of this section.

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8

SECTION 1.  

Section 6126.6 is added to the Business and
9Professions Code
, to read:

10

6126.6.  

Unless otherwise expressly provided, the remedies or
11penalties provided by this article are cumulative to each other and
12to the remedies or penalties available under all other laws of this
13state.

14

SEC. 2.  

Section 6126.8 is added to the Business and Professions
15Code
, to read:

16

6126.8.  

(a) For a violation of Section 6125 or 6126, the State
17Bar shall disclose, in confidence, the information in its
18investigation to the agency responsible for the criminal enforcement
19of this article or exchange that information with that agency.

20(1) The State Bar may request the Attorney General, a district
21attorney, or a city attorney acting as a local prosecutor, to bring
22an enforcement action under Chapter 5 (commencing with Section
2317200) of Part 2 of Division 7.

24(2) If the Attorney General, a district attorney, or a city attorney
25has not elected to bring an enforcement action 60 days after a
26request from the State Bar or, with the approval of the Attorney
27General, a district attorney, or a city attorney acting as a local
28prosecutor, the State Bar may bring a civil action in its own name,
29as provided in Section 6030, for any violation of Section 6125 or
306126.

31(3) Paragraphs (1) and (2) shall not apply to an action by the
32State Bar brought under Section 6126.7.

33(b) In a civil enforcement action brought by the State Bar, in
34addition to the remedies and relief available in Section 6030 and
35subdivision (e) of Section 6126.3, in those cases involving injury
36or likelihood of imminent harm to a client or the public, the court
37shall:

38(1) Impose a civil penalty in an amount not to exceed two
39thousand five hundred dollars ($2,500) for each violation of Section
406125 or 6126, to be paid to the State Bar. In determining the
P5    1amount of the civil penalty to be assessed, the court shall consider
2 any relevant circumstances presented by any of the parties to the
3case, including, but not limited to, the nature and seriousness of
4the misconduct, the number of violations, the persistence of the
5misconduct, the length of time over which the misconduct occurred,
6the willfulness of the defendant’s misconduct, and the defendant’s
7assets, liabilities, and net worth.

8(2) Impose a civil penalty for the intentional violation of any
9injunction prohibiting the unlawful practice of law, in an amount
10not to exceed six thousand dollars ($6,000) for each violation, to
11be paid to the State Bar. If the conduct constituting the violation
12is of a continuing nature, each day of that conduct shall be deemed
13a separate and distinct violation. In determining the amount of the
14civil penalty to be assessed, the court shall consider any relevant
15circumstances, including, but not limited to, the extent of the harm
16caused by the conduct constituting a violation, the nature and
17persistence of the conduct, the length of time over which the
18conduct occurred, the defendant’s assets, liabilities, and net worth,
19and any corrective action taken by the defendant.

20(3) Consider, when applicable, the relief available in paragraphs
21(1) to (6), inclusive, of subdivision (a) of Section 6126.5.

22(4) Award to the State Bar reasonable attorney’s fees and costs
23and, in the court’s discretion, exemplary damages as provided in
24Section 3294 of the Civil Code.

25(c) In an action under subdivision (b), any penalty collected
26shall be paid into the treasury of the State Bar and the funds
27received shall be used as the board may direct for the purposes of
28providing relief to clients harmed by persons engaged in the
29unauthorized practice of law and for the purposes established
30pursuant to Section 6033. The board shall annually report any
31collection and expenditure of funds authorized by this section to
32the Assembly and Senate Committees on Judiciary in the report
33described in Section 6126.9.

34

SEC. 3.  

Section 6126.9 is added to the Business and Professions
35Code
, to read:

36

6126.9.  

Notwithstanding Section 10231.5 of the Government
37Code, the State Bar shall, by April 30 of each year, report annually
38to the Assembly and Senate Committees on Judiciary concerning
39the number of complaints of the unauthorized practice of law
40received, referrals made pursuant to subdivision (a) of Section
P6    16126.8, and proceedings filed by the State Bar pursuant to Sections
26030, 6126.3, 6126.4, and 6126.8, during the preceding calendar
3year. The report shall also include an accounting of any collection
4and expenditure of funds authorized by Section 6126.8 during the
5preceding calendar year. The report required by this section may
6be included in the report described in Section 6086.15.

7

SEC. 4.  

Section 6134 is added to the Business and Professions
8Code
, to read:

9

6134.  

The Board of Trustees shall establish and administer an
10oversight committee of the board, the majority of which shall be
11composed of public members under Section 6013.5, to oversee
12the State Bar’s investigation and enforcement of this article.

13

SEC. 5.  

Section 17206 of the Business and Professions Code
14 is amended to read:

15

17206.  

Civil Penalty for Violation of Chapter

16(a) Any person who engages, has engaged, or proposes to engage
17in unfair competition shall be liable for a civil penalty not to exceed
18two thousand five hundred dollars ($2,500) for each violation,
19which shall be assessed and recovered in a civil action brought in
20the name of the people of the State of California by the Attorney
21General, by any district attorney, by any county counsel authorized
22by agreement with the district attorney in actions involving
23violation of a county ordinance, by any city attorney of a city
24having a population in excess of 750,000, by any city attorney of
25any city and county, or, with the consent of the district attorney,
26by a city prosecutor in any city having a full-time city prosecutor,
27in any court of competent jurisdiction.

28(b) The court shall impose a civil penalty for each violation of
29this chapter. In assessing the amount of the civil penalty, the court
30shall consider any one or more of the relevant circumstances
31presented by any of the parties to the case, including, but not
32limited to, the following: the nature and seriousness of the
33misconduct, the number of violations, the persistence of the
34misconduct, the length of time over which the misconduct occurred,
35the willfulness of the defendant’s misconduct, and the defendant’s
36assets, liabilities, and net worth.

37(c) If the action is brought by the Attorney General, one-half of
38the penalty collected shall be paid to the treasurer of the county in
39which the judgment was entered, and one-half to the General Fund.
40If the action is brought by a district attorney or county counsel,
P7    1the penalty collected shall be paid to the treasurer of the county in
2which the judgment was entered. Except as provided in subdivision
3(e), if the action is brought by a city attorney or city prosecutor,
4one-half of the penalty collected shall be paid to the treasurer of
5the city in which the judgment was entered, and one-half to the
6treasurer of the county in which the judgment was entered. The
7aforementioned funds shall be for the exclusive use by the Attorney
8General, the district attorney, the county counsel, and the city
9attorney for the enforcement of consumer protection laws.

10(d) The Unfair Competition Law Fund is hereby created as a
11special account within the General Fund in the State Treasury. The
12portion of penalties that is payable to the General Fund or to the
13Treasurer recovered by the Attorney General from an action or
14settlement of a claim made by the Attorney General pursuant to
15this chapter or Chapter 1 (commencing with Section 17500) of
16Part 3 shall be deposited into this fund. Moneys in this fund, upon
17appropriation by the Legislature, shall be used by the Attorney
18General to support investigations and prosecutions of California’s
19consumer protection laws, including implementation of judgments
20obtained from those prosecutions or investigations and other
21activities that are in furtherance of this chapter or Chapter 1
22(commencing with Section 17500) of Part 3. Notwithstanding
23Section 13340 of the Government Code, any civil penalties
24deposited in the fund pursuant to the National Mortgage Settlement,
25as provided in Section 12531 of the Government Code, are
26continuously appropriated to the Department of Justice for the
27purpose of offsetting General Fund costs incurred by the
28Department of Justice.

29(e) If the action is brought at the request of a board within the
30Department of Consumer Affairs, a local consumer affairs agency,
31 or the State Bar of California, the court shall determine the
32reasonable expenses incurred by the board, local agency, or the
33State Bar in the investigation and prosecution of the action.

34Before any penalty collected is paid out pursuant to subdivision
35(c), the amount of any reasonable expenses incurred by the board
36shall be paid to the Treasurer for deposit in the special fund of the
37board described in Section 205. If the board has no such special
38fund, the moneys shall be paid to the Treasurer. The amount of
39any reasonable expenses incurred by a local consumer affairs
40agency shall be paid to the general fund of the municipality or
P8    1county that funds the local agency. The amount of any reasonable
2expenses incurred by the State Bar shall be paid to the State Bar
3to fund its investigation and enforcement of Sections 6125 and
46126.

5(f) If the action is brought by a city attorney of a city and county,
6the entire amount of the penalty collected shall be paid to the
7treasurer of the city and county in which the judgment was entered
8for the exclusive use by the city attorney for the enforcement of
9consumer protection laws. However, if the action is brought by a
10city attorney of a city and county for the purposes of civil
11enforcement pursuant to Section 17980 of the Health and Safety
12Code or Article 3 (commencing with Section 11570) of Chapter
1310 of Division 10 of the Health and Safety Code, either the penalty
14collected shall be paid entirely to the treasurer of the city and
15county in which the judgment was entered or, upon the request of
16the city attorney, the court may order that up to one-half of the
17penalty, under court supervision and approval, be paid for the
18purpose of restoring, maintaining, or enhancing the premises that
19were the subject of the action, and that the balance of the penalty
20be paid to the treasurer of the city and county.

21

SEC. 6.  

This act is an urgency statute necessary for the
22immediate preservation of the public peace, health, or safety within
23the meaning of Article IV of the Constitution and shall go into
24immediate effect. The facts constituting the necessity are:

25The unauthorized practice of law and the victimization of
26consumers by nonlawyers continues to be a problem in California,
27as evidenced by the scams of persons who offered to assist
28homeowners with home loan modifications during the recent
29economic downturn and housing crisis, and by “notaries” who
30continue to prey on immigrants. Proposed immigration reform
31legislation pending in the United States Congress has resulted in
32nonlawyers soliciting and taking advantage of immigrants with
33the promise of benefits and relief under that legislation before it
34is enacted. To prevent these nonattorneys from committing fraud
35upon immigrants and other consumers by engaging in the
36unauthorized practice of law, it is necessary that this act take effect
37immediately.

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