Amended in Assembly April 30, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2617


Introduced by Assembly Member Weber

February 21, 2014


An act to amend Sections 51.7, 52, and 52.1 of the Civil Code, relating to civil rights.

LEGISLATIVE COUNSEL’S DIGEST

AB 2617, as amended, Weber. Civil rights: waiver of rights.

Existing civil rights provisions provide that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of position in a labor dispute, or sex, race, color, religion, ancestry, national origin, disability, or medical condition, or because another person perceives them to have one or more of those characteristics. Those civil rights provisions provide civil remedies for violations of their provisions.

This bill would prohibit a person from requiring a waiver of the protections afforded under those provisions as a condition of entering into a contract for the provision of goods or services, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Attorney General or any other public prosecutor, or law enforcement agency, the Department of Fair Employment and Housing, or any court or other governmental entity. This bill would require any waiver of the protections afforded under those provisions to be knowing and voluntary, and in writing, and expressly not made as a condition of entering into the contract or as a condition of providing or receiving goods or services. This bill would provide that any person seeking the enforcement of a waiver of the protections afforded under those civil rights provisions shall have the burden of proving that the waiver was knowing and voluntary and not made as a condition of the contract or of providing or receiving the goods or services. The bill’s provisions would apply to contracts entered into, altered, modified, renewed, or extended on and after January 1, 2015. This bill would provide that its provisions shall not be construed to negate other specified provisions.

This bill would include legislative findings and declarations with respect to the public policy underlying its provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

P2    1

SECTION 1.  

(a) The Legislature finds and declares that it is
2the policy of the State of California to ensure that all persons have
3the full benefit of the rights, penalties, remedies, forums, and
4procedures established by the Ralph Civil Rights Act and the Tom
5Bane Civil Rights Act, and that individuals shall not be deprived
6of those rights, penalties, remedies, forums, or procedures through
7the use of involuntary or coerced waivers.

8(b) It is the purpose of this act to ensure that a contract to waive
9any of the rights, penalties, remedies, forums, or procedures under
10the Ralph Civil Rights Act or the Tom Bane Civil Rights Act,
11including any provision that has the effect of limiting the full
12application or enforcement of any right, remedy, forum, or
13procedure available under the Ralph Civil Rights Act or the Tom
14Bane Civil Rights Act, is a matter of voluntary consent, not
15coercion.

16

SEC. 2.  

Section 51.7 of the Civil Code is amended to read:

17

51.7.  

(a) All persons within the jurisdiction of this state have
18the right to be free from any violence, or intimidation by threat of
19violence, committed against their persons or property because of
20political affiliation, or on account of any characteristic listed or
21defined in subdivision (b) or (e) of Section 51, or position in a
22labor dispute, or because another person perceives them to have
23one or more of those characteristics. The identification in this
24subdivision of particular bases of discrimination is illustrative
25rather than restrictive.

P3    1(b) (1)  begin deleteNo end delete begin insertA end insertperson shallbegin insert notend insert require another person to waive
2any legal right, penalty, remedy, forum, or procedure for a violation
3of this section, as a condition of entering into a contract for goods
4or services, including the right to file and pursue a civil action or
5complaint with, or otherwise notify, the Attorney General or any
6other public prosecutor, or law enforcement agency, the
7Department of Fair Employment and Housing, or any court or
8other governmental entity.

9(2) begin deleteNo end deletebegin insertA end insertperson shallbegin insert notend insert refuse to enter into a contract with,
10or refuse to provide goods or services to, another person on the
11basis that the other person refuses to waive any legal right, penalty,
12remedy, forum, or procedure for a violation of this section,
13including the right to file and pursue a civil action or complaint
14with, or otherwise notify, the Attorney General or any other public
15prosecutor, or law enforcement agency, the Department of Fair
16Employment and Housing, or any other governmental entity.

17(3) Any waiver of any legal right, penalty, remedy, forum, or
18procedure for a violation of this section, including the right to file
19and pursue a civil action or complaint with, or otherwise notify,
20the Attorney General or any other public prosecutor, or law
21enforcement agency, the Department of Fair Employment and
22Housing, or any other governmental entity shall be knowing and
23voluntary, and in writing, and expressly not made as a condition
24of entering into a contract for goods or services or as a condition
25of providing or receiving goods and services.

26(4) Any waiver of any legal right, penalty, remedy, forum, or
27procedure for a violation of this section that is required as a
28condition of entering into a contract for goods or services shall be
29deemed involuntary, unconscionable, against public policy, and
30unenforceable. Nothing in this subdivision shall affect the
31enforceability or validity of any other provision of the contract.

32(5) Any person who seeks to enforce a waiver of any legal right,
33penalty, remedy, forum, or procedure for a violation of this section
34shall have the burden of proving that the waiver was knowing and
35voluntary and not made as a condition of the contract or of
36providing or receiving the goods or services.

37(6) The exercise of a person’s right to refuse to waive any legal
38right, penalty, remedy, forum, or procedure for a violation of this
39section, including a rejection of a contract requiring a waiver, shall
40not affect any otherwise legal terms of a contract or an agreement.

P4    1(7) This subdivision shall not apply to any agreement to waive
2any legal rights, penalties, remedies, forums, or procedures for a
3violation of this section after a legal claim has arisen.

4(8) This subdivision shall apply to any agreement to waive any
5legal right, penalty, remedy, forum, or procedure for a violation
6of this section, including an agreement to accept private arbitration,
7entered into, altered, modified, renewed, or extended on or after
8January 1, 2015.

9(c) This section does not apply to statements concerning
10positions in a labor dispute that are made during otherwise lawful
11labor picketing.

12(d) Nothing in this section shall be construed to negate or
13otherwise abrogate the provisions of Sections 1668begin insert, 1953,end insert and
143513.

15

SEC. 3.  

Section 52 of the Civil Code is amended to read:

16

52.  

(a) Whoever denies, aids or incites a denial, or makes any
17discrimination or distinction contrary to Section 51, 51.5, or 51.6,
18is liable for each and every offense for the actual damages, and
19any amount that may be determined by a jury, or a court sitting
20without a jury, up to a maximum of three times the amount of
21actual damage but in no case less than four thousand dollars
22($4,000), and any attorney’s fees that may be determined by the
23court in addition thereto, suffered by any person denied the rights
24provided in Section 51, 51.5, or 51.6.

25(b) Whoever denies the right provided by Section 51.7 or 51.9,
26or aids, incites, or conspires in that denial, is liable for each and
27every offense for the actual damages suffered by any person denied
28that right and, in addition, the following:

29(1) An amount to be determined by a jury, or a court sitting
30without a jury, for exemplary damages.

31(2) A civil penalty of twenty-five thousand dollars ($25,000)
32to be awarded to the person denied the right provided by Section
3351.7 in any action brought by the person denied the right, or by
34the Attorney General, a district attorney, or a city attorney. An
35action for that penalty brought pursuant to Section 51.7 shall be
36commenced within three years of the alleged practice.

37(3) Attorney’s fees as may be determined by the court.

38(c) Whenever there is reasonable cause to believe that any person
39or group of persons is engaged in conduct of resistance to the full
40enjoyment of any of the rights described in this section, and that
P5    1conduct is of that nature and is intended to deny the full exercise
2of those rights, the Attorney General, any district attorney or city
3attorney, or any person aggrieved by the conduct may bring a civil
4action in the appropriate court by filing with it a complaint. The
5complaint shall contain the following:

6(1) The signature of the officer, or, in his or her absence, the
7individual acting on behalf of the officer, or the signature of the
8person aggrieved.

9(2) The facts pertaining to the conduct.

10(3) A request for preventive relief, including an application for
11a permanent or temporary injunction, restraining order, or other
12order against the person or persons responsible for the conduct, as
13the complainant deems necessary to ensure the full enjoyment of
14the rights described in this section.

15(d) Whenever an action has been commenced in any court
16seeking relief from the denial of equal protection of the laws under
17the Fourteenth Amendment to the Constitution of the United States
18on account of race, color, religion, sex, national origin, or disability,
19the Attorney General or any district attorney or city attorney for
20or in the name of the people of the State of California may
21intervene in the action upon timely application if the Attorney
22General or any district attorney or city attorney certifies that the
23case is of general public importance. In that action, the people of
24the State of California shall be entitled to the same relief as if it
25had instituted the action.

26(e) Actions brought pursuant to this section are independent of
27any other actions, remedies, or procedures that may be available
28to an aggrieved party pursuant to any other law.

29(f) Any person claiming to be aggrieved by an alleged unlawful
30practice in violation of Section 51 or 51.7 may also file a verified
31complaint with the Department of Fair Employment and Housing
32pursuant to Section 12948 of the Government Code.

33(g) This section does not require any construction, alteration,
34repair, structural or otherwise, or modification of any sort
35whatsoever, beyond that construction, alteration, repair, or
36modification that is otherwise required by other provisions of law,
37to any new or existing establishment, facility, building,
38improvement, or any other structure, nor does this section augment,
39restrict, or alter in any way the authority of the State Architect to
P6    1require construction, alteration, repair, or modifications that the
2State Architect otherwise possesses pursuant to other laws.

3(h) For the purposes of this section, “actual damages” means
4special and general damages. This subdivision is declaratory of
5existing law.

6(i) Subdivisions (b) to (f), inclusive, shall not be waived by
7contract except as provided in Section 51.7.

8

SEC. 4.  

Section 52.1 of the Civil Code is amended to read:

9

52.1.  

(a) If a person or persons, whether or not acting under
10color of law, interferes by threat, intimidation, or coercion, or
11attempts to interfere by threat, intimidation, or coercion, with the
12exercise or enjoyment by any individual or individuals of rights
13secured by the Constitution or laws of the United States, or of the
14rights secured by the Constitution or laws of this state, the Attorney
15General, or any district attorney or city attorney may bring a civil
16action for injunctive and other appropriate equitable relief in the
17name of the people of the State of California, in order to protect
18the peaceable exercise or enjoyment of the right or rights secured.
19An action brought by the Attorney General, any district attorney,
20or any city attorney may also seek a civil penalty of twenty-five
21thousand dollars ($25,000). If this civil penalty is requested, it
22shall be assessed individually against each person who is
23determined to have violated this section and the penalty shall be
24awarded to each individual whose rights under this section are
25determined to have been violated.

26(b) Any individual whose exercise or enjoyment of rights
27secured by the Constitution or laws of the United States, or of
28rights secured by the Constitution or laws of this state, has been
29interfered with, or attempted to be interfered with, as described in
30subdivision (a), may institute and prosecute in his or her own name
31and on his or her own behalf a civil action for damages, including,
32but not limited to, damages under Section 52, injunctive relief,
33and other appropriate equitable relief to protect the peaceable
34exercise or enjoyment of the right or rights secured.

35(c) An action brought pursuant to subdivision (a) or (b) may be
36filed either in the superior court for the county in which the conduct
37complained of occurred or in the superior court for the county in
38which a person whose conduct complained of resides or has his
39or her place of business. An action brought by the Attorney General
40pursuant to subdivision (a) also may be filed in the superior court
P7    1for any county wherein the Attorney General has an office, and in
2that case, the jurisdiction of the court shall extend throughout the
3state.

4(d) If a court issues a temporary restraining order or a
5preliminary or permanent injunction in an action brought pursuant
6to subdivision (a) or (b), ordering a defendant to refrain from
7conduct or activities, the order issued shall include the following
8statement: VIOLATION OF THIS ORDER IS A CRIME
9PUNISHABLE UNDER SECTION 422.77 OF THE PENAL
10CODE.

11(e) The court shall order the plaintiff or the attorney for the
12plaintiff to deliver, or the clerk of the court to mail, two copies of
13any order, extension, modification, or termination thereof granted
14pursuant to this section, by the close of the business day on which
15the order, extension, modification, or termination was granted, to
16each local law enforcement agency having jurisdiction over the
17residence of the plaintiff and any other locations where the court
18determines that acts of violence against the plaintiff are likely to
19occur. Those local law enforcement agencies shall be designated
20by the plaintiff or the attorney for the plaintiff. Each appropriate
21law enforcement agency receiving any order, extension, or
22modification of any order issued pursuant to this section shall serve
23forthwith one copy thereof upon the defendant. Each appropriate
24law enforcement agency shall provide to any law enforcement
25officer responding to the scene of reported violence, information
26as to the existence of, terms, and current status of, any order issued
27pursuant to this section.

28(f) A court shall not have jurisdiction to issue an order or
29injunction under this section, if that order or injunction would be
30prohibited under Section 527.3 of the Code of Civil Procedure.

31(g) An action brought pursuant to this section is independent of
32any other action, remedy, or procedure that may be available to
33an aggrieved individual under any other provision of law,
34including, but not limited to, an action, remedy, or procedure
35brought pursuant to Section 51.7.

36(h) In addition to any damages, injunction, or other equitable
37relief awarded in an action brought pursuant to subdivision (b),
38the court may award the petitioner or plaintiff reasonable attorney’s
39fees.

P8    1(i) A violation of an order described in subdivision (d) may be
2punished either by prosecution under Section 422.77 of the Penal
3Code, or by a proceeding for contempt brought pursuant to Title
45 (commencing with Section 1209) of Part 3 of the Code of Civil
5Procedure. However, in any proceeding pursuant to the Code of
6Civil Procedure, if it is determined that the person proceeded
7against is guilty of the contempt charged, in addition to any other
8relief, a fine may be imposed not exceeding one thousand dollars
9($1,000), or the person may be ordered imprisoned in a county jail
10not exceeding six months, or the court may order both the
11imprisonment and fine.

12(j) Speech alone is not sufficient to support an action brought
13pursuant to subdivision (a) or (b), except upon a showing that the
14speech itself threatens violence against a specific person or group
15of persons; and the person or group of persons against whom the
16threat is directed reasonably fears that, because of the speech,
17violence will be committed against them or their property and that
18the person threatening violence had the apparent ability to carry
19out the threat.

20(k) No order issued in any proceeding brought pursuant to
21subdivision (a) or (b) shall restrict the content of any person’s
22speech. An order restricting the time, place, or manner of any
23person’s speech shall do so only to the extent reasonably necessary
24to protect the peaceable exercise or enjoyment of constitutional or
25statutory rights, consistent with the constitutional rights of the
26person sought to be enjoined.

27(l) The rights, penalties, remedies, forums, and procedures of
28this section shall not be waived by contract except as provided in
29 Section 51.7.



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