Amended in Senate April 10, 2014

Senate BillNo. 1356


Introduced by Senator Lieu

February 21, 2014


An act to amendbegin delete Section 17800 of, and to repealend delete Sections 17801 and 17802begin delete of,end deletebegin insert ofend insert the Business and Professions Code,begin delete and to amend Section 3496 of the Civil Code,end delete relating to counterfeit goods.

LEGISLATIVE COUNSEL’S DIGEST

SB 1356, as amended, Lieu. Counterfeit goods: abatement: nonresidential premises.

begin delete

Existing

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begin insert(1)end insertbegin insertend insertbegin insertExistingend insert law provides that, until January 1, 2015, if a person is convicted for willfully manufacturing, intentionally selling, or knowingly possessing for sale any counterfeit mark, then a nonresidential building or place used by that person for the purpose of willfully manufacturing, intentionally selling, or knowingly possessing for sale any counterfeit of a registered mark is a nuisance that shall be enjoined, abated, and prevented, whether it is a public or private nuisance, and specified civil remedies may be applied.begin delete Existing law requires that the owner of the property be provided with 30 days notice prior to the filing of an action to abate a nuisance under these provisions.end deletebegin insert A violation of a restraining order or an injunction relative to a nuisance in this context is a crime.end insert Under existing law, a district attorney, county counsel, city attorney, or city prosecutor that maintains an action or actions to enjoin, abate, or prevent a nuisance pursuant to these provisions was required to report to the Legislature by October 1, 2013, on their use of the provisions and their effectiveness.

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This bill instead would provide that any nonresidential building or place used to willfully manufacture, intentionally sell, or knowingly possess for sale any counterfeit goods shall be deemed a nuisance which may be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance, and that specified civil penalties shall apply. The bill would remove the requirement that the owner of the property be provided 30 days notice prior to the filing of an action to abate a nuisance under these provisions, and also would delete the above-described reporting requirements. It would repeal the date upon which the remaining provisions would become inoperative, thus extending them indefinitely.

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This bill would allow a court to award costs, including the costs of investigation and discovery, and reasonable attorney’s fees, which are not compensated for pursuant to some other provision of law, to the prevailing party in any case in which a governmental agency seeks to enjoin the use of a nonresidential building or place, or seeks to enjoin in or upon any nonresidential building or place the unlawful manufacturing, selling, or possession for sale of any counterfeit goods.

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This bill would extend the operation of the provisions described above until January 1, 2016. By extending the operation of these provisions, this bill would expand the scope of a crime, as described above. The bill would also require a district attorney, county counsel, city attorney, or city prosecutor that maintains an action to enjoin, abate, or prevent a nuisance pursuant to these provisions to provide a report to the Senate and Assembly Committees on Judiciary, as specified, by February 1, 2015.

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(2) 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: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 17801 of the end insertbegin insertBusiness and Professions
2Code
end insert
begin insert is amended to read:end insert

P3    1

17801.  

A district attorney, county counsel, city attorney, or
2city prosecutor that maintains an action or actions to enjoin, abate,
3or prevent a nuisance pursuant to the provisions of this chapter
4shall report to the Senate and Assembly Committees on Judiciary,
5bybegin delete October 1, 2013,end deletebegin insert February 1, 2015,end insert on their use of the
6provisions of this chapter and their effectiveness. The report shall
7include, but not be limited to, all of the following:

8(a) The frequency of use of the nuisance abatement provisions
9as well as statistics on whether the use of the abatement provisions
10correlates with a decrease in the use of criminal penalties.

11(b) Any statistics or information concerning the impact of the
12use of these provisions on counterfeiting overall, both in the
13relevant county or city and overall.

14begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 17802 of the end insertbegin insertBusiness and Professions Codeend insert
15begin insert is amended to read:end insert

16

17802.  

This chapter shall remain in effect only until January
171,begin delete 2015,end deletebegin insert 2016,end insert and as of that date is repealed, unless a later enacted
18statute, that is enacted before January 1,begin delete 2015,end deletebegin insert 2016,end insert deletes or
19extends that date.

20begin insert

begin insertSEC. 3.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
21Section 6 of Article XIII B of the California Constitution because
22the only costs that may be incurred by a local agency or school
23district will be incurred because this act creates a new crime or
24infraction, eliminates a crime or infraction, or changes the penalty
25for a crime or infraction, within the meaning of Section 17556 of
26the Government Code, or changes the definition of a crime within
27the meaning of Section 6 of Article XIII B of the California
28Constitution.

end insert
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29

SECTION 1.  

Section 17800 of the Business and Professions
30Code
is amended to read:

31

17800.  

(a) A nonresidential building or place used for the
32purpose of willfully manufacturing, intentionally selling, or
33knowingly possessing for sale any counterfeit goods shall be
34deemed a nuisance which may be enjoined, abated, and prevented,
35and for which damages may be recovered, whether it is a public
36or private nuisance. The remedies and procedures provided in
37Article 2 (commencing with Section 11225) of Chapter 3 of Title
381 of Part 4 of the Penal Code shall be applied by the court. For
39purposes of this section, an abatement under Section 11230 of the
P4    1Penal Code is discretionary rather than mandatory and may be for
2a period up to one year.

3(b) As used in this chapter, “counterfeit goods” means (1) any
4counterfeit of a mark registered with the Secretary of State or
5registered on the Principal Register of the United States Patent and
6Trademark Office or (2) any recording or audiovisual work, the
7cover, box, jacket, or label of which does not disclose the
8information as specified in subdivision (a) of Section 653w of the
9Penal Code.

10

SEC. 2.  

Section 17801 of the Business and Professions Code
11 is repealed.

12

SEC. 3.  

Section 17802 of the Business and Professions Code
13 is repealed.

14

SEC. 4.  

Section 3496 of the Civil Code is amended to read:

15

3496.  

In any of the following described cases, the court may
16award costs, including the costs of investigation and discovery,
17and reasonable attorney’s fees, which are not compensated for
18pursuant to some other provision of law, to the prevailing party:

19(a) In any case in which a governmental agency seeks to enjoin
20the sale, distribution, or public exhibition, for commercial
21consideration, of obscene matter, as defined in Section 311 of the
22Penal Code.

23(b) In any case in which a governmental agency seeks to enjoin
24the use of a building or place for the purpose of illegal gambling,
25lewdness, assignation, human trafficking, or prostitution; or any
26case in which a governmental agency seeks to enjoin acts of illegal
27gambling, lewdness, assignation, human trafficking, or prostitution
28in or upon a building or place, as authorized in Article 2
29(commencing with Section 11225) of Chapter 3 of Title 1 of Part
304 of the Penal Code.

31(c) In any case in which a governmental agency seeks to enjoin
32the use of a building or place, or seeks to enjoin in or upon any
33building or place the unlawful sale, manufacture, service, storage,
34or keeping or giving away of any controlled substance, as
35authorized in Article 3 (commencing with Section 11570) of
36Chapter 10 of Division 10 of the Health and Safety Code.

37(d) In any case in which a governmental agency seeks to enjoin
38the unlawful sale, service, storage, or keeping or giving away of
39alcoholic liquor, as authorized in Article 1 (commencing with
40Section 11200) of Chapter 3 of Title 1 of Part 4 of the Penal Code.

P5    1(e) In any case in which a governmental agency seeks to enjoin
2the use of a nonresidential building or place, or seeks to enjoin in
3or upon any nonresidential building or place the unlawful
4manufacturing, selling, or possession for sale of any counterfeit
5goods as authorized in Chapter 4 (commencing with Section 17800)
6of Part 3 of Division 7 of the Business and Professions Code or
7Section 11226 of the Penal Code.

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