BILL NUMBER: AB 2365	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member John A. Pérez

                        FEBRUARY 21, 2014

   An act to add Section 1670.8 to the Civil Code, relating to
contracts.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2365, as introduced, John A. Pérez. Contracts: unlawful
contracts.
   Existing law generally regulates formation and enforcement of
contracts, including what constitutes an unlawful contract. Under
existing law a contract is unlawful if it is contrary to an express
provision of law, contrary to the policy of express law, though not
expressly prohibited, or otherwise contrary to good morals.
   This bill would declare a contract or proposed contract for the
sale or lease of consumer goods or services unlawful if it contains a
provision requiring the consumer to waive his or her right to make
any statement regarding the consumer's experience with the business,
unless the waiver was knowing, voluntary, and intelligent, as
specified. The bill would impose civil penalties in an unspecified
amount upon any person who violates the provisions of the bill, as
well as an additional penalty in an unspecified amount if that
violation was willful, intentional, or reckless. The bill would
authorize the consumer, the Attorney General, or a district attorney
or city attorney to bring a civil action for a violation of the
provisions of the bill. The bill would provide that the penalty set
forth in the bill is not an exclusive remedy, and does not affect any
other relief or remedy provided by law.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1670.8 is added to the Civil Code, to read:
   1670.8.  (a) A contract or proposed contract for the sale or lease
of consumer goods or services is unlawful if it includes a provision
requiring the consumer to waive his or her right to make any
statement regarding the consumer's experience with the business, or
to threaten or seek to enforce such a provision or to otherwise
penalize a consumer for making such a statement, unless the waiver of
this right was knowing, voluntary, and intelligent. A provision in
violation of this section is unconscionable and against public
policy.
   (b) The party that drafted the waiver provision has the burden of
proving that the waiver was knowing, voluntary, and intelligent.
   (c) Any waiver of the provisions of this section is contrary to
public policy, and is void and unenforceable.
   (d) Any person who violates this section shall be subject to a
civil penalty not to exceed ____ dollars ($____) for the first
violation and ____ dollars ($____) for each subsequent violation, to
be assessed and collected in a civil action brought by the consumer,
by the Attorney General, or by the district attorney or city attorney
of the county or city in which the violation occurred. When
collected, the civil penalty shall be payable, as appropriate, to the
consumer or to the general fund of whichever governmental entity
brought the action to assess the civil penalty.
   (e) In addition, for a willful, intentional, or reckless violation
of this section, a consumer or public prosecutor may recover a civil
penalty not to exceed ____ dollars ($ ____).
   (f) The penalty provided by this section is not an exclusive
remedy, and does not affect any other relief or remedy provided by
law.