AB 2365, as amended, 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 wouldbegin delete declareend deletebegin insert prohibitend insert a contract or proposed contract for the sale or lease of consumer goods or servicesbegin delete unlawful if it containsend deletebegin insert from includingend insert
a provisionbegin delete requiring the consumer to waive his or herend deletebegin insert waiving the consumer’send insert right to make any statement regarding thebegin delete consumer’s experience with a seller or lessor or its employees or agents, unless the waiver was knowing, voluntary, and intelligent, as specified.end deletebegin insert seller or lessor or its employees or agents, or concerning the goods or services.end insert The bill would make it unlawful to threaten or to seek to enforce, a provision made unlawful under the bill, or to otherwise penalize a consumer for making any statementbegin delete regarding the consumer’s experience with a seller or lessor, or its employees or agent, absent the consumer’s knowing, voluntary, and intelligent waiver of his or her right to do so.end deletebegin insert
protected under the bill.end insert The bill would impose civil penalties upon any person who violates the provisions of the bill, of $2,500 for the initial violation and $5,000 for each subsequent violation, as well as an additional penalty of $10,000 if the 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. The bill would notbegin insert prohibit orend insert limitbegin delete any
authority otherwise provided by law ofend delete a person or businessbegin delete to remove an online consumer statement that is libelous, harassing, obscene, vulgar, or sexually explicit, contains the personal information or likeness of a person other than the consumer, or violates a person’s civil right to be treated equal to all others no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.end deletebegin insert that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.end insert
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1670.8 is added to the Civil Code, to
2read:
(a) (1) A contract or proposed contract for the sale or
4lease of consumer goods or servicesbegin delete is unlawful if it includesend deletebegin insert may
5not includeend insert a provisionbegin delete requiring the consumer to waive his or herend delete
6begin insert waiving the consumer’send insert right to make any statement regardingbegin delete the the seller or lessor or
its employees
7consumer’s experience withend delete
8orbegin delete agents, unless the waiver of this right was knowing, voluntary, begin insert
agents, or concerning the goods or services.end insert
9and intelligent.end delete
10(2) It shall be unlawful to threaten or to seek to enforce a
11provision made unlawful under this section, or to otherwise
12penalize a consumer for making any statementbegin delete regarding the begin insert protected under this
13consumer’s experience with a seller or lessor, or its employees or
14agent, unless the consumer has knowingly, voluntarily, and
15intelligently waived his or her right to do so.end delete
16section.end insert
P3 1(b) The party that drafted the waiver provision has the burden
2of proving that the waiver was knowing, voluntary, and intelligent.
3(c)
end delete
4begin insert(b)end insert Any waiver of the provisions of this section is contrary to
5public policy, and is void and unenforceable.
6(d)
end delete
7begin insert(c)end insert Any person who violates this section shall be subject to a
8civil penalty not to exceed two thousand five hundred dollars
9($2,500) for the first violation, and five thousand dollars ($5,000)
10for the second and for each subsequent violation, to be assessed
11and collected in a civil action brought by the consumer, by the
12Attorney
General, or by the district attorney or city attorney of the
13county or city in which the violation occurred. When collected,
14the civil penalty shall be payable, as appropriate, to the consumer
15or to the general fund of whichever governmental entity brought
16the action to assess the civil penalty.
17(e)
end delete
18begin insert(d)end insert In addition, for a willful, intentional, or reckless violation
19of this section, a consumer or public prosecutor may recover a
20civil penalty not to exceed ten thousand dollars ($10,000).
21(f)
end delete
22begin insert(e)end insert The penalty provided by this section is not an exclusive
23remedy, and does not affect any other relief or remedy provided
24by law. This section shall not be construed tobegin insert prohibit orend insert limitbegin delete any a person or business
25authority otherwise provided by law ofend deletebegin delete to begin insert
that hosts online consumer reviews or
26remove an online consumer statement that is libelous, harassing,
27obscene, vulgar, or sexually explicit, contains the personal
28information or likeness of a person other than the consumer, or
29violates Section 51.end delete
30comments from removing a statement that is otherwise lawful to
31remove.end insert
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