Amended in Senate July 3, 2014

Amended in Assembly April 30, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2617

Introduced by Assembly Member Weber

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(Coauthors: Assembly Members Dickinson and Yamada)

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(Coauthor: Senator Lara)

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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.

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This bill would incorporate additional changes to Section 52.1 of the Civil Code proposed by AB 2634 that would become operative only if this bill and AB 2634 are both chaptered and this bill is chaptered last.

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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 that it is
the policy of the State of California to ensure that all persons have
the full benefit of the rights, penalties, remedies, forums, and
procedures established by the Ralph Civil Rights Act and the Tom
Bane Civil Rights Act, and that individuals shall not be deprived
of those rights, penalties, remedies, forums, or procedures through
the use of involuntary or coerced waivers.

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

SEC. 2.  

Section 51.7 of the Civil Code is amended to read:

51.7.  

(a) 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 any characteristic listed or
defined in subdivision (b) or (e) of Section 51, or position in a
labor dispute, or because another person perceives them to have
one or more of those characteristics. The identification in this
subdivision of particular bases of discrimination is illustrative
rather than restrictive.

(b) (1) A person shall not require another person to waive any
legal right, penalty, remedy, forum, or procedure for a violation
of this section, as a condition of entering into a contract for 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.

(2) A person shall not refuse to enter into a contract with, or
refuse to provide goods or services to, another person on the basis
that the other person refuses to waive any legal right, penalty,
remedy, forum, or procedure for a violation of this section,
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 other governmental entity.

(3) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section, 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 other governmental entity shall be knowing and
voluntary, and in writing, and expressly not made as a condition
of entering into a contract for goods or services or as a condition
of providing or receiving goods and services.

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

(5) Any person who seeks to enforce a waiver of any legal right,
penalty, remedy, forum, or procedure for a violation of this section
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.

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

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

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

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

(d) Nothing in this section shall be construed to negate or
otherwise abrogate the provisions of Sections 1668, 1953, and
3513.

SEC. 3.  

Section 52 of the Civil Code is amended to read:

52.  

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

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

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

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

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

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

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

(2) The facts pertaining to the conduct.

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

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

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

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

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

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

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

SEC. 4.  

Section 52.1 of the Civil Code is amended to read:

52.1.  

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

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

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

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

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

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

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

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

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

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

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

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

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begin insert SEC. 4.5. end insert   

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begin insert Section 52.1 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

52.1.  

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

(b) Any individual whose exercise or enjoyment of rights
secured by the Constitution or laws of the United States, or of
rights secured by the Constitution or laws of this state, has been
interfered with, or attempted to be interfered with, as described in
subdivision (a), may institute and prosecute in his or her own name
and on his or her own behalf a civil action for damages, including,
but not limited to, damages under Section 52, injunctive relief,
and other appropriate equitable relief to protect the peaceable
exercise or enjoyment of the right or rights begin delete secured. end delete begin insert secured,
including appropriate equitable end insert begin insert and declaratory relief to eliminate
a pattern or practice of conduct as described in subdivision (a). end insert

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

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

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

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

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

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

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

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

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

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

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begin insert SEC. 5. end insert   

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Section 4.5 of this bill incorporates amendments to
Section 52.1 of the Civil Code proposed by both this bill and
Assembly Bill 2634. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2015,
(2) each bill amends Section 52.1 of the Civil Code, and (3) this
bill is enacted after Assembly Bill 2634, in which case Section 4
of this bill shall not become operative.

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