Amended in Assembly April 23, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2368

Introduced by Assembly Member Wagner

February 21, 2014

begin delete An act to amend Section 1739.7 of the Civil Code, relating to autographed sports memorabilia. end delete begin insert An act to amend Section 48a of the Civil Code, relating to libel. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2368, as amended, Wagner. Civil law: begin delete obligations: sports memorabilia. end delete begin insert libel: damages. end insert

begin insert

Under existing law, in any action for damages for the publication of a libel in a newspaper or of a slander by a radio broadcast, the plaintiff is required to recover no more than special damages unless a correction is demanded and the correction is not published or broadcast. If a correction is demanded and the correction is not published or broadcast in a specified manner in the newspaper or on the broadcasting station, existing law authorizes the plaintiff to recover general, special, and exemplary damages provided certain requirements are met.

end insert begin insert

The bill would expand these provisions to additionally include libel in a periodical or other medium, either in print or electronic form.

end insert begin delete

Existing law regulates the sale or offer to sell by a dealer to a consumer of a collectible in or from this state, as specified. Existing law defines the term “collectible” to mean an autographed sports item, as specified, sold or offered for sale in or from this state by a dealer to a consumer for $5 or more.

end delete begin delete

This bill would revise the definition of “collectible” by increasing the price of the sports item sold or offered for sale to $15 or more. The bill also would make various technical, nonsubstantive changes to these provisions.

end delete

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 48a of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

48a.  

1. In any action for damages for the publication of a libel
in a newspaper begin insert , periodical, or other medium, either in print or
electronic form end insert , or of a slander by radio broadcast, plaintiff shall
recover no more than special damages unless a correction be
demanded and be not published or broadcast, as hereinafter
provided. Plaintiff shall serve upon the publisher, at the place of
publication or broadcaster at the place of broadcast, a written notice
specifying the statements claimed to be libelous and demanding
that the same be corrected. Said notice and demand must be served
within 20 days after knowledge of the publication or broadcast of
the statements claimed to be libelous.

2. If a correction be demanded within said period and be not
published or broadcast in substantially as conspicuous a manner
in said newspaper begin insert , periodical, or other medium, either in print or
electronic form, end insert or on said broadcasting station as were the
statements claimed to be libelous, in a regular issue thereof
published or broadcast within three weeks after such service,
plaintiff, if he pleads and proves such notice, demand and failure
to correct, and if his cause of action be maintained, may recover
general, special and exemplary damages; provided that no
exemplary damages may be recovered unless the plaintiff shall
prove that defendant made the publication or broadcast with actual
malice and then only in the discretion of the court or jury, and
actual malice shall not be inferred or presumed from the publication
or broadcast.

3. A correction published or broadcast in substantially as
conspicuous a manner in said newspaper begin insert , periodical, or other
medium, either in print or electronic form, end insert or on said broadcasting
station as the statements claimed in the complaint to be libelous,
prior to receipt of a demand therefor, shall be of the same force
and effect as though such correction had been published or
broadcast within three weeks after a demand therefor.

4. As used herein, the terms “general damages,” “special
damages,” “exemplary damages” and “actual malice,” are defined
as follows:

(a) “General damages” are damages for loss of reputation,
shame, mortification and hurt begin delete feelings; end delete begin insert feelings. end insert

(b) “Special damages” are all damages which plaintiff alleges
and proves that he has suffered in respect to his property, business,
trade, profession or occupation, including such amounts of money
as the plaintiff alleges and proves he has expended as a result of
the alleged libel, and no begin delete other; end delete begin insert other. end insert

(c) “Exemplary damages” are damages which may in the
discretion of the court or jury be recovered in addition to general
and special damages for the sake of example and by way of
punishing a defendant who has made the publication or broadcast
with actual begin delete malice; end delete begin insert malice. end insert

(d) “Actual malice” is that state of mind arising from hatred or
ill will toward the plaintiff; provided, however, that such a state
of mind occasioned by a good faith belief on the part of the
defendant in the truth of the libelous publication or broadcast at
the time it is published or broadcast shall not constitute actual
malice.

begin delete

SECTION 1.  

Section 1739.7 of the Civil Code is amended to
read:

1739.7.  

(a) As used in this section:

(1) “Autographed” means bearing the actual signature of a
personality signed by that individual’s own hand.

(2) “Collectible” means an autographed sports item, including,
but not limited to, a photograph, book, ticket, plaque, sports
program, trading card, item of sports equipment or clothing, or
other sports memorabilia sold or offered for sale in or from this
state by a dealer to a consumer for fifteen dollars ($15) or more.

(3) “Consumer” means any natural person who purchases a
collectible from a dealer for personal, family, or household
purposes. “Consumer” also includes a prospective purchaser
meeting these criteria.

(4) “Dealer” means a person who is in the business of selling
or offering for sale collectibles in or from this state, exclusively
or nonexclusively, or a person who by his or her occupation holds
himself or herself out as having knowledge or skill peculiar to
collectibles, or to whom that knowledge or skill may be attributed
by his or her employment of an agent or other intermediary that
by his or her occupation holds himself or herself out as having that
knowledge or skill. “Dealer” includes an auctioneer who sells
collectibles at a public auction, and also includes persons who are
consignors or representatives or agents of auctioneers. “Dealer”
includes a person engaged in a mail order, telephone order, or
cable television business for the sale of collectibles.

(5) “Description” means any of the following:

(A) Any representation in writing, including, but not limited to,
a representation in an advertisement, brochure, catalog, flyer,
invoice, sign, or other commercial or promotional material.

(B) Any oral representation.

(C) Any representation included in a radio or television
broadcast to the public in or from this state.

(6) “Limited edition” means any collectible that meets all of
the following requirements:

(A) A company has produced a specific quantity of a collectible
and placed it on the open market.

(B) The producer of the collectible has posted a notice, at its
primary place of business, that it will provide any consumer, upon
request, with a copy of a notice that states the exact number of a
collectible produced in that series of limited editions.

(C) The producer makes available, upon request of a consumer,
evidence that the electronic encoding, films, molds, or plates used
to create the collectible have been destroyed after the specified
number of collectibles have been produced.

(D) The sequence number of the collectible and the number of
the total quantity produced in the limited edition are printed on
the collectible.

(7) “Mint condition” means any collectible sold on the open
market or through a private transaction that meets all of the
following requirements:

(A) The item has never been circulated, used, or worn.

(B) The item exhibits little or no sign of aging or degradation
caused by oxidation or exposure to sunlight as a result of its
display.

(C) The item is otherwise free from creases, blemishes, or marks.

(8) “Promoter” means a person who arranges, holds, organizes,
or presents a trade show featuring collectibles, autograph signings,
or both.

(9) “Person” means any natural person, partnership, corporation,
limited liability company, company, trust, association, or other
entity, however organized.

(b) Whenever a dealer, in selling or offering to sell to a
consumer a collectible in or from this state, provides a description
of that collectible as being autographed, the dealer shall furnish a
certificate of authenticity to the consumer at the time of sale. The
certificate of authenticity shall be in writing, shall be signed by
the dealer or his or her authorized agent, and shall specify the date
of sale. The certificate of authenticity shall be in at least 10-point
boldface type and shall contain the dealer’s true legal name and
street address. The dealer shall retain a copy of the certificate of
authenticity for not less than seven years. Each certificate of
authenticity shall do all of the following:

(1) Describe the collectible and specify the name of the sports
personality who autographed it.

(2) Either specify the purchase price and date of sale or be
accompanied by a separate invoice setting forth that information.

(3) Contain an express warranty, which shall be conclusively
presumed to be part of the bargain, of the authenticity of the
collectible. This warranty shall not be negated or limited by reason
of the lack of words such as “warranty” or “guarantee” or because
the dealer does not have a specific intent or authorization to make
the warranty or because any statement relevant to the collectible
is or purports to be, or is capable of being, merely the dealer’s
opinion.

(4) Specify whether the collectible is offered as one of a limited
edition and, if so, specify (A) how the collectible and edition are
numbered and (B) the size of the edition and the size of any prior
or anticipated future edition, if known. If the size of the edition
and the size of any prior or anticipated future edition is not known,
the certificate shall contain an explicit statement to that effect.

(5) Indicate whether the dealer is surety bonded or is otherwise
insured to protect the consumer against errors and omissions of
the dealer and, if bonded or insured, provide proof thereof.

(6) Indicate the last four digits of the dealer’s resale certificate
number from the State Board of Equalization.

(7) Indicate whether the item was autographed in the presence
of the dealer and specify the date and location of, and the name of
a witness to, the autograph signing.

(8) Indicate whether the item was obtained or purchased from
a third party. If so, indicate the name and address of this third
party.

(9) Include an identifying serial number that corresponds to an
identifying number printed on the collectible item, if any. The
serial number shall also be printed on the sales receipt. If the sales
receipt is printed electronically, the dealer may manually write the
serial number on the receipt.

(c) No dealer shall represent an item as a collectible if it was
not autographed by the sports personality in his or her own hand.

(d) No dealer shall display or offer for sale a collectible in this
state unless, at the location where the collectible is offered for sale
and in close proximity to the collectible merchandise, there is a
conspicuous sign that reads as follows:
“SALE OF AUTOGRAPHED SPORTS MEMORABILIA: AS
REQUIRED BY LAW, A DEALER WHO SELLS TO A
CONSUMER ANY SPORTS MEMORABILIA DESCRIBED
AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN
CERTIFICATE OF AUTHENTICITY AT THE TIME OF SALE.
THIS DEALER MAY BE SURETY BONDED OR OTHERWISE
INSURED TO ENSURE THE AUTHENTICITY OF ANY
COLLECTIBLE SOLD BY THIS DEALER.”

(e) Any dealer engaged in a mail-order or telephone-order
business for the sale of collectibles in or from this state:

(1) Shall include the disclosure specified in subdivision (d), in
type of conspicuous size, in any written advertisement relating to
a collectible.

(2) Shall include in each television advertisement relating to a
collectible the following written onscreen message, which shall
be prominently displayed, easily readable, and clearly visible for
no less than five seconds, and which shall be repeated for five
seconds once during each four-minute segment of the advertisement
following the initial four minutes:
“A written certificate of authenticity is provided with each
autographed collectible, as required by law. This dealer may be
surety bonded or otherwise insured to ensure the authenticity of
any collectible sold by this dealer.”

(3) Shall include as part of the oral message of each radio
advertisement for a collectible the disclosure specified in
subdivision (d).

(f) No dealer shall display or offer for sale a collectible in this
state at any trade show or similar event primarily featuring sales
of collectibles or other sports memorabilia that offers onsite
admission ticket sales unless, at each onsite location where
admission tickets are sold, there is prominently displayed a
specimen example of a certificate of authenticity.

(g) Any consumer injured by the failure of a dealer to provide
a certificate of authenticity containing the information required by
this section, or by a dealer’s furnishing of a certificate of
authenticity that is false, shall be entitled to recover, in addition
to actual damages, a civil penalty in an amount equal to 10 times
actual damages, plus court costs, reasonable attorney’s fees,
interest, and expert witness fees, if applicable, incurred by the
consumer in the action. The court, in its discretion, may award
additional damages based on the egregiousness of the dealer’s
conduct. The remedy specified in this section is in addition to, and
not in lieu of, any other remedy that may be provided by law.

(h) No person shall represent himself or herself as a dealer in
this state unless he or she possesses a valid resale certificate
number from the State Board of Equalization.

(i) A dealer may be surety bonded or otherwise insured for
purposes of indemnification against errors and omissions arising
from the authentication, sale, or resale of collectibles.

(j) Whenever a promoter arranges or organizes a trade show
featuring collectibles and autograph signings, the promoter shall
notify any dealer who has agreed to purchase or rent space in this
trade show, in writing, of what the promoter will do if any laws
of this state are violated, including the fact that law enforcement
officials will be contacted when those laws are violated. This notice
shall be delivered to the dealer, at his or her registered place of
business, at the time the agreement to purchase space in the trade
show is made. The following language shall be included in each
notice:

“As a vendor at this collectibles trade show, you are a
professional representative of this hobby. As a result, you will be
required to follow the laws of this state, including laws regarding
the sale and display of collectibles, as defined in Section 1739.7
of the Civil Code, forged and counterfeit collectibles and
autographs, and mint and limited edition collectibles. If you do
not obey the laws, you may be evicted from this trade show, be
reported to law enforcement, and be held liable for a civil penalty
of 10 times the amount of damages.”

end delete