BILL NUMBER: AB 1105	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 21, 2016

INTRODUCED BY   Assembly Member  Daly   Bonta


                        FEBRUARY 27, 2015

    An act to amend Section 66499.7 of the Government Code,
relating to subdivided lands.   An act to amend Sections
17204 and 17206 of the Business and Professions Code, relating to
unfair competition. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1105, as amended,  Daly   Bonta  .
 Subdivided lands: release of performance security. 
 Unfair business practices: enforcement: city attorneys.

   Existing law defines unfair competition to include an unlawful,
unfair, or fraudulent business act or practice, unfair, deceptive,
untrue, or misleading advertising, and any false representations to
the public. Existing law, as amended by Proposition 64 at the
November 2, 2004, statewide general election, authorizes an action
for relief from this prohibited conduct to be brought by, among
others, a person who has suffered injury in fact and has lost money
or property as a result of the unfair competition. Existing law also
authorizes an action for relief from this prohibited conduct and for
civil penalties to be brought by a city attorney of a city having a
population in excess of 750,000.  
   This bill would expand this authorization to allow actions for
relief and civil penalties by city attorneys of cities having a
population in excess of 250,000, as provided.  
   The Subdivision Map Act and local ordinances authorize or require,
under specified circumstances, the furnishing of specified types of
security with respect to the performance of various acts or
agreements subject to the act. Existing law, until January 1, 2016,
also sets forth the specific procedures imposed on a local agency for
the complete or partial release of a performance security furnished
by a subdivider.  
   This bill would delete the repeal of the provisions relating to
the procedures for releasing a performance security, thereby
extending the operation of these provisions indefinitely and imposing
a state-mandated local program.  
   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.  
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


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

   SECTION 1.    Section 17204 of the  
Business and Professions Code  is amended to read: 
   17204.  Actions for Injunctions by Attorney General, District
Attorney, County Counsel, and City Attorneys
   Actions for relief pursuant to this chapter shall be prosecuted
exclusively in a court of competent jurisdiction by the Attorney
General or a district attorney or by a county counsel authorized by
agreement with the district attorney in actions involving violation
of a county ordinance, or by a city attorney of a city having a
population in excess of  750,000,   250,000,
 or by a city attorney in a city and county or, with the consent
of the district attorney, by a city prosecutor in a city having a
full-time city prosecutor in the name of the people of the State of
California upon their own complaint or upon the complaint of a board,
officer, person, corporation, or association, or by a person who has
suffered injury in fact and has lost money or property as a result
of the unfair competition.
   SEC. 2.    Section 17206 of the   Business
and Professions Code   is amended to read: 
   17206.  Civil Penalty for Violation of Chapter
   (a) Any person who engages, has engaged, or proposes to engage in
unfair competition shall be liable for a civil penalty not to exceed
two thousand five hundred dollars ($2,500) for each violation, which
shall be assessed and recovered in a civil action brought in the name
of the people of the State of California by the Attorney General, by
any district attorney, by any county counsel authorized by agreement
with the district attorney in actions involving violation of a
county ordinance, by any city attorney of a city having a population
in excess of  750,000,   250,000,  by any
city attorney of any city and county, or, with the consent of the
district attorney, by a city prosecutor in any city having a
full-time city prosecutor, in any court of competent jurisdiction.
   (b) The court shall impose a civil penalty for each violation of
this chapter. In assessing the amount of the civil penalty, the court
shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the following: the nature and seriousness of the
misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred,
the willfulness of the defendant's misconduct, and the defendant's
assets, liabilities, and net worth.
   (c) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund. If
the action is brought by a district attorney or county counsel, the
penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in subdivision
(e), if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered. The
aforementioned funds shall be for the exclusive use by the Attorney
General, the district attorney, the county counsel, and the city
attorney for the enforcement of consumer protection laws.
   (d) The Unfair Competition Law Fund is hereby created as a special
account within the General Fund in the State Treasury. The portion
of penalties that is payable to the General Fund or to the Treasurer
recovered by the Attorney General from an action or settlement of a
claim made by the Attorney General pursuant to this chapter or
Chapter 1 (commencing with Section 17500) of Part 3 shall be
deposited into this fund. Moneys in this fund, upon appropriation by
the Legislature, shall be used by the Attorney General to support
investigations and prosecutions of California's consumer protection
laws, including implementation of judgments obtained from such
prosecutions or investigations and other activities which are in
furtherance of this chapter or Chapter 1 (commencing with Section
17500) of Part 3. Notwithstanding Section 13340 of the Government
Code, any civil penalties deposited in the fund pursuant to the
National Mortgage Settlement, as provided in Section 12531 of the
Government Code, are continuously appropriated to the Department of
Justice for the purpose of offsetting General Fund costs incurred by
the Department of Justice.
   (e) If the action is brought at the request of a board within the
Department of Consumer Affairs or a local consumer affairs agency,
the court shall determine the reasonable expenses incurred by the
board or local agency in the investigation and prosecution of the
action.
   Before any penalty collected is paid out pursuant to subdivision
(c), the amount of any reasonable expenses incurred by the board
shall be paid to the Treasurer for deposit in the special fund of the
board described in Section 205. If the board has no such special
fund, the moneys shall be paid to the Treasurer. The amount of any
reasonable expenses incurred by a local consumer affairs agency shall
be paid to the general fund of the municipality or county that funds
the local agency.
   (f) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered for the exclusive use by the city attorney for the
enforcement of consumer protection laws. However, if the action is
brought by a city attorney of a city and county for the purposes of
civil enforcement pursuant to Section 17980 of the Health and Safety
Code or Article 3 (commencing with Section 11570) of Chapter 10 of
Division 10 of the Health and Safety Code, either the penalty
collected shall be paid entirely to the treasurer of the city and
county in which the judgment was entered or, upon the request of the
city attorney, the court may order that up to one-half of the
penalty, under court supervision and approval, be paid for the
purpose of restoring, maintaining, or enhancing the premises that
were the subject of the action, and that the balance of the penalty
be paid to the treasurer of the city and county. 
  SECTION 1.    Section 66499.7 of the Government
Code is amended to read:
   66499.7.  The security furnished by the subdivider shall be
released in whole or in part in the following manner:
   (a) Security given for faithful performance of any act or
agreement shall be released upon the performance of the act or final
completion and acceptance of the required work. The legislative body
may provide for the partial release of the security upon the partial
performance of the act or the acceptance of the work as it
progresses, consistent with the provisions of this section. The
security may be a surety bond, a cash deposit, a letter of credit,
escrow account, or other form of performance guarantee required as
security by the legislative body that meets the requirements as
acceptable security pursuant to law. If the security furnished by the
subdivider is a documentary evidence of security such as a surety
bond or a letter of credit, the legislative body shall release the
documentary evidence and return the original to the issuer upon
performance of the act or final completion and acceptance of the
required work. In the event that the legislative body is unable to
return the original documentary evidence to the issuer, the security
shall be released by written notice sent by certified mail to the
subdivider and issuer of the documentary evidence within 30 days of
the acceptance of the work. The written notice shall contain a
statement that the work for which the security was furnished has been
performed or completed and accepted by the legislative body, a
description of the project subject to the documentary evidence and
the notarized signature of the authorized representative of the
legislative body.
   (b) At the time that the subdivider believes that the obligation
to perform the work for which security was required is complete, the
subdivider may notify the local agency in writing of the completed
work, including a list of work completed. Upon receipt of the written
notice, the local agency shall have 45 days to review and comment or
approve the completion of the required work. If the local agency
does not agree that all work has been completed in accordance with
the plans and specifications for the improvements, it shall supply a
list of all remaining work to be completed.
   (c) Within 45 days of receipt of the list of remaining work from
the local agency, the subdivider may then provide cost estimates for
all remaining work for review and approval by the local agency. Upon
receipt of the cost estimates, the local agency shall then have 45
days to review, comment, and approve, modify, or disapprove those
cost estimates. No local agency shall be required to engage in this
process of partial release more than once between the start of work
and completion and acceptance of all work; however, nothing in this
section prohibits a local agency from allowing for a partial release
as it otherwise deems appropriate.
   (d) If the local agency approves the cost estimate, the local
agency shall release all performance security except for security in
an amount up to 200 percent of the cost estimate of the remaining
work. The process allowing for a partial release of performance
security shall occur when the cost estimate of the remaining work
does not exceed 20 percent of the total original performance security
unless the local agency allows for a release at an earlier time.
Substitute bonds or other security may be used as a replacement for
the performance security, subject to the approval of the local
agency. If substitute bonds or other security is used as a
replacement for the performance security released, the release shall
not be effective unless and until the local agency receives and
approves that form of replacement security. A reduction in the
performance security, authorized under this section, is not, and
shall not be deemed to be, an acceptance by the local agency of the
completed improvements, and the risk of loss or damage to the
improvements and the obligation to maintain the improvements shall
remain the sole responsibility of the subdivider until all required
public improvements have been accepted by the local agency and all
other required improvements have been fully completed in accordance
with the plans and specifications for the improvements.
   (e) The subdivider shall complete the works of improvement until
all remaining items are accepted by the local agency.
   (f) Upon the completion of the improvements, the subdivider, or
his or her assigns, shall be notified in writing by the local agency
within 45 days.
   (g) Within 45 days of the issuance of the notification by the
local agency, the release of any remaining performance security shall
be placed upon the agenda of the legislative body of the local
agency for approval of the release of any remaining performance
security. If the local agency delegates authority for the release of
performance security to a public official or other employee, any
remaining performance security shall be released within 60 days of
the issuance of the written statement of completion.
   (h) Security securing the payment to the contractor, his or her
subcontractors and to persons furnishing labor, materials or
equipment shall, after passage of the time within which claims of
lien are required to be recorded pursuant to Article 2 (commencing
with Section 8410) of Chapter 4 of Title 2 of Part 6 of Division 4 of
the Civil Code and after acceptance of the work, be reduced to an
amount equal to the total claimed by all claimants for whom claims of
lien have been recorded and notice thereof given in writing to the
legislative body, and if no claims have been recorded, the security
shall be released in full.
   (i) The release shall not apply to any required guarantee and
warranty period required by Section 66499.9 for the guarantee or
warranty nor to the amount of the security deemed necessary by the
local agency for the guarantee and warranty period nor to costs and
reasonable expenses and fees, including reasonable attorney's fees.
   (j) The legislative body may authorize any of its public officers
or employees to authorize release or reduction of the security in
accordance with the conditions hereinabove set forth and in
accordance with any rules that it may prescribe.  
  SEC. 2.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.