1708. Every person is bound, without contract, to abstain from
injuring the person or property of another, or infringing upon any of
his or her rights.
1708.5. (a) A person commits a sexual battery who does any of the
following:
(1) Acts with the intent to cause a harmful or offensive contact
with an intimate part of another, and a sexually offensive contact
with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact
with another by use of his or her intimate part, and a sexually
offensive contact with that person directly or indirectly results.
(3) Acts to cause an imminent apprehension of the conduct
described in paragraph (1) or (2), and a sexually offensive contact
with that person directly or indirectly results.
(b) A person who commits a sexual battery upon another is liable
to that person for damages, including, but not limited to, general
damages, special damages, and punitive damages.
(c) The court in an action pursuant to this section may award
equitable relief, including, but not limited to, an injunction,
costs, and any other relief the court deems proper.
(d) For the purposes of this section "intimate part" means the
sexual organ, anus, groin, or buttocks of any person, or the breast
of a female.
(e) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(f) For purposes of this section "offensive contact" means contact
that offends a reasonable sense of personal dignity.
1708.6. (a) A person is liable for the tort of domestic violence if
the plaintiff proves both of the following elements:
(1) The infliction of injury upon the plaintiff resulting from
abuse, as defined in subdivision (a) of Section 13700 of the Penal
Code.
(2) The abuse was committed by the defendant, a person having a
relationship with the plaintiff as defined in subdivision (b) of
Section 13700 of the Penal Code.
(b) A person who commits an act of domestic violence upon another
is liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(c) The court, in an action pursuant to this section, may grant to
a prevailing plaintiff equitable relief, an injunction, costs, and
any other relief that the court deems proper, including reasonable
attorney's fees.
(d) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(e) The time for commencement of an action under this section is
governed by Section 340.15 of the Code of Civil Procedure.
1708.7. (a) A person is liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to support
his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this paragraph, "immediate
family" means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who
regularly resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the plaintiff's
household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified
in paragraph (1), made a credible threat with the intent to place the
plaintiff in reasonable fear for his or her safety, or the safety of
an immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant cease
and abate his or her pattern of conduct and the defendant persisted
in his or her pattern of conduct.
(B) The defendant violated a restraining order, including, but not
limited to, any order issued pursuant to Section 527.6 of the Code
of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. Constitutionally protected activity is not included within
the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including
that communicated by means of an electronic communication device, or
a threat implied by a pattern of conduct or a combination of verbal,
written, or electronically communicated statements and conduct, made
with the intent and apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family.
(3) "Electronic communication device" includes, but is not limited
to, telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.
(4) "Harass" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys,
torments, or terrorizes the person, and which serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is
liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(d) In an action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(f) This section shall not be construed to impair any
constitutionally protected activity, including, but not limited to,
speech, protest, and assembly.
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
(c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
1709. One who willfully deceives another with intent to induce him
to alter his position to his injury or risk, is liable for any damage
which he thereby suffers.
1710. A deceit, within the meaning of the last section, is either:
1. The suggestion, as a fact, of that which is not true, by one
who does not believe it to be true;
2. The assertion, as a fact, of that which is not true, by one who
has no reasonable ground for believing it to be true;
3. The suppression of a fact, by one who is bound to disclose it,
or who gives information of other facts which are likely to mislead
for want of communication of that fact; or,
4. A promise, made without any intention of performing it.
1710.1. Any person who, with intent to defraud, sells or disposes
of a radio, piano, phonograph, sewing machine, washing machine,
typewriter, adding machine, comptometer, bicycle, firearm, safe,
vacuum cleaner, dictaphone, watch, watch movement, watchcase, or any
other mechanical or electrical device, appliance, contrivance,
material, piece of apparatus or equipment, from which the
manufacturer's nameplate, serial number or any other distinguishing
number or identification mark has been removed, defaced, covered,
altered or destroyed, is civilly liable to the manufacturer in the
sum of five hundred dollars ($500) per transaction and civilly liable
to the purchaser for treble the actual damages sustained by the
purchaser.
This section does not apply to those cases or instances where any
of the changes or alterations enumerated in this section have been
customarily made or done as an established practice in the ordinary
and regular conduct of business by the original manufacturer or his
duly appointed direct representative or under specific authorization
from the original manufacturer.
1710.2. (a) No cause of action arises against an owner of real
property or his or her agent, or any agent of a transferee of real
property, for the failure to disclose to the transferee the
occurrence of an occupant's death upon the real property or the
manner of death where the death has occurred more than three years
prior to the date the transferee offers to purchase, lease, or rent
the real property, or that an occupant of that property was afflicted
with, or died from, Human T-Lymphotropic Virus Type
III/Lymphadenopathy-Associated Virus. As used in this section, "agent"
includes any person licensed pursuant to Part 1 (commencing with
Section 10000) of Division 4 of the Business and Professions Code. As
used in this section, "transferee" includes a purchaser, lessee, or
renter of real property.
(b) It is the intention of the Legislature to occupy the field of
regulation of disclosure related to deaths occurring upon real
property and of AIDS in situations affecting the transfer of real
property or any estate or interest in real property.
(c) This section shall not be construed to alter the law relating
to disclosure pertaining to any other physical or mental condition or
disease, and this section shall not relieve any owner or agent of
any obligation to disclose the physical condition of the premises.
(d) Nothing in this section shall be construed to immunize an
owner or his or her agent from making an intentional
misrepresentation in response to a direct inquiry from a transferee
or a prospective transferee of real property, concerning deaths on
the real property.
1711. One who practices a deceit with intent to defraud the public,
or a particular class of persons, is deemed to have intended to
defraud every individual in that class, who is actually misled by the
deceit.
1712. One who obtains a thing without the consent of its owner, or
by a consent afterwards rescinded, or by an unlawful exaction which
the owner could not at the time prudently refuse, must restore it to
the person from whom it was thus obtained, unless he has acquired a
title thereto superior to that of such other person, or unless the
transaction was corrupt and unlawful on both sides.
1713. The restoration required by the last section must be made
without demand, except where a thing is obtained by mutual mistake,
in which case the party obtaining the thing is not bound to return it
until he has notice of the mistake.
1714. (a) Everyone is responsible, not only for the result of his
or her willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management of his or
her property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care and skill
that is required by this section. The extent of liability in these
cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings
in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v.
Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court
(1978) 21 Cal.3d 144 and to reinstate the prior judicial
interpretation of this section as it relates to proximate cause for
injuries incurred as a result of furnishing alcoholic beverages to an
intoxicated person, namely that the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages is
the proximate cause of injuries inflicted upon another by an
intoxicated person.
(c) Except as provided in subdivision (d), no social host who
furnishes alcoholic beverages to any person may be held legally
accountable for damages suffered by that person, or for injury to the
person or property of, or death of, any third person, resulting from
the consumption of those beverages.
(d) Nothing in subdivision (c) shall preclude a claim against a
parent, guardian, or another adult who knowingly furnishes alcoholic
beverages at his or her residence to a person under 21 years of age,
in which case, notwithstanding subdivision (b), the furnishing of the
alcoholic beverage may be found to be the proximate cause of
resulting injuries or death.
1714.01. (a) Domestic partners shall be entitled to recover damages
for negligent infliction of emotional distress to the same extent
that spouses are entitled to do so under California law.
(b) For the purpose of this section, "domestic partners" has the
meaning provided in Section 297 of the Family Code.
1714.1. (a) Any act of willful misconduct of a minor that results
in injury or death to another person or in any injury to the property
of another shall be imputed to the parent or guardian having custody
and control of the minor for all purposes of civil damages, and the
parent or guardian having custody and control shall be jointly and
severally liable with the minor for any damages resulting from the
willful misconduct.
Subject to the provisions of subdivision (c), the joint and
several liability of the parent or guardian having custody and
control of a minor under this subdivision shall not exceed
twenty-five thousand dollars ($25,000) for each tort of the minor,
and in the case of injury to a person, imputed liability shall be
further limited to medical, dental and hospital expenses incurred by
the injured person, not to exceed twenty-five thousand dollars
($25,000). The liability imposed by this section is in addition to
any liability now imposed by law.
(b) Any act of willful misconduct of a minor that results in the
defacement of property of another with paint or a similar substance
shall be imputed to the parent or guardian having custody and control
of the minor for all purposes of civil damages, including court
costs, and attorney's fees, to the prevailing party, and the parent
or guardian having custody and control shall be jointly and severally
liable with the minor for any damages resulting from the willful
misconduct, not to exceed twenty-five thousand dollars ($25,000),
except as provided in subdivision (c), for each tort of the minor.
(c) The amounts listed in subdivisions (a) and (b) shall be
adjusted every two years by the Judicial Council to reflect any
increases in the cost of living in California, as indicated by the
annual average of the California Consumer Price Index. The Judicial
Council shall round this adjusted amount up or down to the nearest
hundred dollars. On or before July 1 of each odd-numbered year, the
Judicial Council shall compute and publish the amounts listed in
subdivisions (a) and (b), as adjusted according to this subdivision.
(d) The maximum liability imposed by this section is the maximum
liability authorized under this section at the time that the act of
willful misconduct by a minor was committed.
(e) Nothing in this section shall impose liability on an insurer
for a loss caused by the willful act of the insured for purposes of
Section 533 of the Insurance Code. An insurer shall not be liable for
the conduct imputed to a parent or guardian by this section for any
amount in excess of ten thousand dollars ($10,000).
1714.2. (a) In order to encourage citizens to participate in
emergency medical services training programs and to render emergency
medical services to fellow citizens, no person who has completed a
basic cardiopulmonary resuscitation course which complies with the
standards adopted by the American Heart Association or the American
Red Cross for cardiopulmonary resuscitation and emergency cardiac
care, and who, in good faith, renders emergency cardiopulmonary
resuscitation at the scene of an emergency shall be liable for any
civil damages as a result of any acts or omissions by such person
rendering the emergency care.
(b) This section shall not be construed to grant immunity from
civil damages to any person whose conduct in rendering such emergency
care constitutes gross negligence.
(c) In order to encourage local agencies and other organizations
to train citizens in cardiopulmonary resuscitation techniques, no
local agency, entity of state or local government, or other public or
private organization which sponsors, authorizes, supports, finances,
or supervises the training of citizens in cardiopulmonary
resuscitation shall be liable for any civil damages alleged to result
from such training programs.
(d) In order to encourage qualified individuals to instruct
citizens in cardiopulmonary resuscitation, no person who is certified
to instruct in cardiopulmonary resuscitation by either the American
Heart Association or the American Red Cross shall be liable for any
civil damages alleged to result from the acts or omissions of an
individual who received instruction on cardiopulmonary resuscitation
by that certified instructor.
(e) This section shall not be construed to grant immunity from
civil damages to any person who renders such emergency care to an
individual with the expectation of receiving compensation from the
individual for providing the emergency care.
1714.21. (a) For purposes of this section, the following
definitions shall apply:
(1) "AED" or "defibrillator" means an automated or automatic
external defibrillator.
(2) "CPR" means cardiopulmonary resuscitation.
(b) Any person who, in good faith and not for compensation,
renders emergency care or treatment by the use of an AED at the scene
of an emergency is not liable for any civil damages resulting from
any acts or omissions in rendering the emergency care.
(c) A person or entity who provides CPR and AED training to a
person who renders emergency care pursuant to subdivision (b) is not
liable for any civil damages resulting from any acts or omissions of
the person rendering the emergency care.
(d) A person or entity that acquires an AED for emergency use
pursuant to this section is not liable for any civil damages
resulting from any acts or omissions in the rendering of the
emergency care by use of an AED, if that person or entity has
complied with subdivision (b) of Section 1797.196 of the Health and
Safety Code.
(e) A physician who is involved with the placement of an AED and
any person or entity responsible for the site where an AED is located
is not liable for any civil damages resulting from any acts or
omissions of a person who renders emergency care pursuant to
subdivision (b), if that physician, person, or entity has complied
with all of the requirements of Section 1797.196 of the Health and
Safety Code that apply to that physician, person, or entity.
(f) The protections specified in this section do not apply in the
case of personal injury or wrongful death that results from the gross
negligence or willful or wanton misconduct of the person who renders
emergency care or treatment by the use of an AED.
(g) Nothing in this section shall relieve a manufacturer,
designer, developer, distributor, installer, or supplier of an AED or
defibrillator of any liability under any applicable statute or rule
of law.
1714.22. (a) For purposes of this section:
(1) "Opioid antagonist" means naloxone hydrochloride that is
approved by the federal Food and Drug Administration for the
treatment of a drug overdose.
(2) "Opioid overdose prevention and treatment training program" or
"program" means any program operated by a local health jurisdiction
or that is registered by a local health jurisdiction to train
individuals to prevent, recognize, and respond to an opiate overdose,
and that provides, at a minimum, training in all of the following:
(A) The causes of an opiate overdose.
(B) Mouth to mouth resuscitation.
(C) How to contact appropriate emergency medical services.
(D) How to administer an opioid antagonist.
(b) A licensed health care provider who is permitted by law to
prescribe an opioid antagonist may, if acting with reasonable care,
prescribe and subsequently dispense or distribute an opioid
antagonist in conjunction with an opioid overdose prevention and
treatment training program, without being subject to civil liability
or criminal prosecution. This immunity shall apply to the licensed
health care provider even when the opioid antagonist is administered
by and to someone other than the person to whom it is prescribed.
(c) A person who is not otherwise licensed to administer an opioid
antagonist may administer an opioid antagonist in an emergency
without fee if the person has received the training information
specified in paragraph (2) of subdivision (a) and believes in good
faith that the other person is experiencing a drug overdose. The
person shall not, as a result of his or her acts or omissions, be
liable for any violation of any professional licensing statute, or
subject to any criminal prosecution arising from or related to the
unauthorized practice of medicine or the possession of an opioid
antagonist.
(d) Each local health jurisdiction that operates or registers an
opioid overdose prevention and treatment training program shall, by
January 1, 2015, collect, and report to the Senate and Assembly
Committees on Judiciary, all of the following data on programs within
the jurisdiction:
(1) Number of training programs operating in the local health
jurisdiction.
(2) Number of individuals who have received a prescription for,
and training to administer, an opioid antagonist.
(3) Number of opioid antagonist doses prescribed.
(4) Number of opioid antagonist doses administered.
(5) Number of individuals who received opioid antagonist
injections who were properly revived.
(6) Number of individuals who received opioid antagonist
injections who were not revived.
(7) Number of adverse events associated with an opioid antagonist
dose that was distributed as part of an opioid overdose prevention
and treatment training program, including a description of the
adverse events.
(e) This section shall apply only to the Counties of Alameda,
Fresno, Humboldt, Los Angeles, Mendocino, San Francisco, and Santa
Cruz.
(f) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
1714.25. (a) Except for injury resulting from negligence or a
willful act in the preparation or handling of donated food, no food
facility that donates any food that is fit for human consumption at
the time it was donated to a nonprofit charitable organization or a
food bank shall be liable for any damage or injury resulting from the
consumption of the donated food.
The immunity from civil liability provided by this subdivision
applies regardless of compliance with any laws, regulations, or
ordinances regulating the packaging or labeling of food, and
regardless of compliance with any laws, regulations, or ordinances
regulating the storage or handling of the food by the donee after the
donation of the food.
(b) A nonprofit charitable organization or a food bank that, in
good faith, receives and distributes food without charge that is fit
for human consumption at the time it was distributed is not liable
for an injury or death due to the food unless the injury or death is
a direct result of the negligence, recklessness, or intentional
misconduct of the organization.
(c) For the purposes of this section:
(1) "Nonprofit charitable organization" has the meaning defined in
Section 114440 of the Health and Safety Code.
(2) "Food bank" has the meaning defined in Section 114445 of the
Health and Safety Code.
1714.3. Civil liability for any injury to the person or property of
another proximately caused by the discharge of a firearm by a minor
under the age of 18 years shall be imputed to a parent or guardian
having custody and control of the minor for all purposes of civil
damages, and such parent or guardian shall be jointly and severally
liable with such minor for any damages resulting from such act, if
such parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor.
The liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or group of
persons collectively, shall incur liability under this section in any
amount exceeding thirty thousand dollars ($30,000) for injury to or
death of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding sixty thousand dollars
($60,000) for injury to or death of all persons as a result of any
one such occurrence.
1714.4. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the obligor's assets
transferred or hidden. The maximum liability imposed by this section
shall not exceed the entire child support obligation due. Any funds
or assets collected pursuant to this section shall be paid to the
child support obligee, and shall not reduce the amount of the unpaid
child support obligation. Upon the satisfaction of the unpaid child
support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, with actual
knowledge of the child support obligation, helping to hide or
transfer assets of the child support obligor.
(c) This section shall not apply to a financial institution unless
the financial institution has actual knowledge of the child support
obligation and, with that knowledge, knowingly assists the obligor to
escape, evade, or avoid paying the child support obligation.
However, a financial institution with knowledge of an asset transfer
has no duty to inquire into the rightfulness of the transaction, nor
shall it be deemed to have knowingly assisted an obligor to escape,
evade, or avoid paying the child support obligation if that
assistance is provided by an employee or agent of the financial
institution acting outside the terms and conditions of employment or
agency without the actual knowledge of the financial institution.
1714.41. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the assets transferred or
hidden, or the amount of the wages or other compensation paid to the
child support obligor but not reported. The maximum liability imposed
by this section shall not exceed the entire child support obligation
due. Any funds or assets collected pursuant to this section shall be
paid to the child support obligee, and shall not reduce the amount
of the unpaid child support obligation. Upon the satisfaction of the
unpaid child support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, but are not
limited to, any of the following actions taken when the individual or
entity knew or should have known of the child support obligation:
(1) Hiring or employing the child support obligor as an employee
in a trade or business and failing to timely file a report of new
employees with the California New Employee Registry maintained by the
Employment Development Department.
(2) Engaging the child support obligor as a service provider and
failing to timely file a report with the Employment Development
Department as required by Section 1088.8 of the Unemployment
Insurance Code.
(3) When engaged in a trade or business, paying wages or other
forms of compensation for services rendered by a child support
obligor that are not reported to the Employment Development
Department as required, including, but not limited to, payment in
cash or via barter or trade.
1714.45. (a) In a product liability action, a manufacturer or
seller shall not be liable if both of the following apply:
(1) The product is inherently unsafe and the product is known to
be unsafe by the ordinary consumer who consumes the product with the
ordinary knowledge common to the community.
(2) The product is a common consumer product intended for personal
consumption, such as sugar, castor oil, alcohol, and butter, as
identified in comment i to Section 402A of the Restatement (Second)
of Torts.
(b) This section does not exempt the manufacture or sale of
tobacco products by tobacco manufacturers and their successors in
interest from product liability actions, but does exempt the sale or
distribution of tobacco products by any other person, including, but
not limited to, retailers or distributors.
(c) For purposes of this section, the term "product liability
action" means any action for injury or death caused by a product,
except that the term does not include an action based on a
manufacturing defect or breach of an express warranty.
(d) This section is intended to be declarative of and does not
alter or amend existing California law, including Cronin v. J.B.E.
Olson Corp. (1972), 8 Cal. 3d 121, and shall apply to all product
liability actions pending on, or commenced after, January 1, 1988.
(e) This section does not apply to, and never applied to, an
action brought by a public entity to recover the value of benefits
provided to individuals injured by a tobacco-related illness caused
by the tortious conduct of a tobacco company or its successor in
interest, including, but not limited to, an action brought pursuant
to Section 14124.71 of the Welfare and Institutions Code. In the
action brought by a public entity, the fact that the injured
individual's claim against the defendant may be barred by a prior
version of this section shall not be a defense. This subdivision does
not constitute a change in, but is declaratory of, existing law
relating to tobacco products.
(f) It is the intention of the Legislature in enacting the
amendments to subdivisions (a) and (b) of this section adopted at the
1997-98 Regular Session to declare that there exists no statutory
bar to tobacco-related personal injury, wrongful death, or other tort
claims against tobacco manufacturers and their successors in
interest by California smokers or others who have suffered or
incurred injuries, damages, or costs arising from the promotion,
marketing, sale, or consumption of tobacco products. It is also the
intention of the Legislature to clarify that those claims that were
or are brought shall be determined on their merits, without the
imposition of any claim of statutory bar or categorical defense.
(g) This section shall not be construed to grant immunity to a
tobacco industry research organization.
1714.5. (a) There shall be no liability on the part of one,
including the State of California, county, city and county, city or
any other political subdivision of the State of California, who owns
or maintains any building or premises which have been designated as a
shelter from destructive operations or attacks by enemies of the
United States by any disaster council or any public office, body, or
officer of this state or of the United States, or which have been
designated or are used as mass care centers, first aid stations,
temporary hospital annexes, or as other necessary facilities for
mitigating the effects of a natural, manmade, or war-caused
emergency, for any injuries arising out of the use thereof for such
purposes sustained by any person while in or upon said building or
premises as a result of the condition of said building or premises or
as a result of any act or omission, or in any way arising from the
designation of such premises as a shelter, or the designation or use
thereof as a mass care center, first aid station, temporary hospital
annex, or other necessary facility for emergency purposes, except a
willful act, of such owner or occupant or his or her servants, agents
or employees when such person has entered or gone upon or into said
building or premises for the purpose of seeking refuge, treatment,
care, or assistance therein during destructive operations or attacks
by enemies of the United States or during tests ordered by lawful
authority or during a natural or manmade emergency.
(b) Notwithstanding any other provision of law, no disaster
service worker who is performing disaster services during a state of
war emergency, a state of emergency, or a local emergency, as such
emergencies are defined in Section 8558 of the Government Code, shall
be liable for civil damages on account of personal injury to or
death of any person or damage to property resulting from any act or
omission while performing disaster services anywhere within any
jurisdiction covered by such emergency, except one that is willful.
(c) For purposes of this subdivision, a disaster service worker
shall be performing disaster services when acting within the scope of
the disaster service worker's responsibilities under the authority
of the governmental emergency organization.
(d) For purposes of this subdivision, "governmental emergency
organization" shall mean the emergency organization of any state,
city, city and county, county, district, or other local governmental
agency or public agency, which is authorized pursuant to the
California Emergency Services Act (Chapter 7 (commencing with Section
8550) of Division 1 of Title 2 of the Government Code).
(e) Nothing in this section shall be construed to alter any
existing legal duties or obligations. The amendments to this section
made by the act amending this section shall apply exclusively to any
legal action filed on or after the effective date of the act.
1714.6. The violation of any statute or ordinance shall not
establish negligence as a matter of law where the act or omission
involved was required in order to comply with an order or
proclamation of any military commander who is authorized to issue
such orders or proclamations; nor when the act or omission involved
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. No person shall be prosecuted for a violation of any
statute or ordinance when violation of such statute or ordinance is
required in order to comply with an order or proclamation of any
military commander who is authorized to issue such orders or
proclamations; nor shall any person be prosecuted for a violation of
any statute or ordinance when violation of such statute or ordinance
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. The provisions of this section shall apply to such acts
or omissions whether occurring prior to or after the effective date
of this section.
1714.7. No person who is injured while getting on, or attempting to
get on, a moving locomotive or railroad car, without authority from
the owner or operator of the railroad, or who, having gotten on a
locomotive or railroad car while in motion without such authority, is
injured while so riding or getting off, shall recover any damages
from the owner or operator thereof for such injuries unless
proximately caused by an intentional act of such owner or operator
with knowledge that serious injury is the probable result of such
act, or with a wanton and reckless disregard of the probable result
of such act.
1714.8. (a) No health care provider shall be liable for
professional negligence or malpractice for any occurrence or result
solely on the basis that the occurrence or result was caused by the
natural course of a disease or condition, or was the natural or
expected result of reasonable treatment rendered for the disease or
condition. This section shall not be construed so as to limit
liability for the failure to inform of the risks of treatment or
failure to accept treatment, or for negligent diagnosis or treatment
or the negligent failure to diagnose or treat.
(b) As used in this section, "health care provider" means any
person licensed or certified pursuant to Division 2 (commencing with
Section 500) of the Business and Professions Code, or licensed
pursuant to the Osteopathic Initiative Act or the Chiropractic
Initiative Act, or certified pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code, and any
clinic, health dispensary, or health facility licensed pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code.
1714.9. (a) Notwithstanding statutory or decisional law to the
contrary, any person is responsible not only for the results of that
person's willful acts causing injury to a peace officer, firefighter,
or any emergency medical personnel employed by a public entity, but
also for any injury occasioned to that person by the want of ordinary
care or skill in the management of the person's property or person,
in any of the following situations:
(1) Where the conduct causing the injury occurs after the person
knows or should have known of the presence of the peace officer,
firefighter, or emergency medical personnel.
(2) Where the conduct causing injury violates a statute,
ordinance, or regulation, and the conduct causing injury was itself
not the event that precipitated either the response or presence of
the peace officer, firefighter, or emergency medical personnel.
(3) Where the conduct causing the injury was intended to injure
the peace officer, firefighter, or emergency medical personnel.
(4) Where the conduct causing the injury is arson as defined in
Section 451 of the Penal Code.
(b) This section does not preclude the reduction of an award of
damages because of the comparative fault of the peace officer,
firefighter, or emergency medical personnel in causing the injury.
(c) The employer of a firefighter, peace officer or emergency
medical personnel may be subrogated to the rights granted by this
section to the extent of the worker's compensation benefits, and
other liabilities of the employer, including all salary, wage,
pension, or other emolument paid to the employee or the employee's
dependents.
(d) The liability imposed by this section shall not apply to an
employer of a peace officer, firefighter, or emergency medical
personnel.
(e) This section is not intended to change or modify the common
law independent cause exception to the firefighter's rule as set
forth in Donohue v. San Francisco Housing Authority (1993) 16
Cal.App.4th 658.
1714.10. (a) No cause of action against an attorney for a civil
conspiracy with his or her client arising from any attempt to contest
or compromise a claim or dispute, and which is based upon the
attorney's representation of the client, shall be included in a
complaint or other pleading unless the court enters an order allowing
the pleading that includes the claim for civil conspiracy to be
filed after the court determines that the party seeking to file the
pleading has established that there is a reasonable probability that
the party will prevail in the action. The court may allow the filing
of a pleading claiming liability based upon such a civil conspiracy
following the filing of a verified petition therefor accompanied by
the proposed pleading and supporting affidavits stating the facts
upon which the liability is based. The court shall order service of
the petition upon the party against whom the action is proposed to be
filed and permit that party to submit opposing affidavits prior to
making its determination. The filing of the petition, proposed
pleading, and accompanying affidavits shall toll the running of any
applicable statute of limitations until the final determination of
the matter, which ruling, if favorable to the petitioning party,
shall permit the proposed pleading to be filed.
(b) Failure to obtain a court order where required by subdivision
(a) shall be a defense to any action for civil conspiracy filed in
violation thereof. The defense shall be raised by the attorney
charged with civil conspiracy upon that attorney's first appearance
by demurrer, motion to strike, or such other motion or application as
may be appropriate. Failure to timely raise the defense shall
constitute a waiver thereof.
(c) This section shall not apply to a cause of action against an
attorney for a civil conspiracy with his or her client, where (1) the
attorney has an independent legal duty to the plaintiff, or (2) the
attorney's acts go beyond the performance of a professional duty to
serve the client and involve a conspiracy to violate a legal duty in
furtherance of the attorney's financial gain.
(d) This section establishes a special proceeding of a civil
nature. Any order made under subdivision (a), (b), or (c) which
determines the rights of a petitioner or an attorney against whom a
pleading has been or is proposed to be filed, shall be appealable as
a final judgment in a civil action.
(e) Subdivision (d) does not constitute a change in, but is
declaratory of, the existing law.
1714.11. (a) Except for damage or injury proximately caused by a
grossly negligent act or omission or willful or wanton misconduct of
the donor, no public employee or public entity, including, but not
limited to, a fire department, a fire protection district, or the
Department of Forestry and Fire Protection, that donates fire
protection apparatus or equipment to a volunteer fire department,
volunteer fire protection district, or volunteer fire company is
liable for any damage or injury that results from the use of that
apparatus or equipment by the recipient fire department, fire
protection district, or fire company.
(b) (1) The immunity provided by this section only shall apply if
the donor of the fire protection apparatus or equipment discloses in
writing to the recipient fire department, fire protection district,
or fire company any known damage to, or deficiencies in, the
apparatus and equipment.
(2) A volunteer fire department, volunteer fire protection
district, or volunteer fire company that receives donated fire
protection apparatus or equipment shall inspect and repair the
apparatus and equipment prior to use for public safety purposes.
1714.43. (a) (1) Every retail seller and manufacturer doing
business in this state and having annual worldwide gross receipts
that exceed one hundred million dollars ($100,000,000) shall
disclose, as set forth in subdivision (c), its efforts to eradicate
slavery and human trafficking from its direct supply chain for
tangible goods offered for sale.
(2) For the purposes of this section, the following definitions
shall apply:
(A) "Doing business in this state" shall have the same meaning as
set forth in Section 23101 of the Revenue and Taxation Code.
(B) "Gross receipts" shall have the same meaning as set forth in
Section 25120 of the Revenue and Taxation Code.
(C) "Manufacturer" means a business entity with manufacturing as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(D) "Retail seller" means a business entity with retail trade as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The disclosure described in subdivision (a) shall be posted on
the retail seller's or manufacturer's Internet Web site with a
conspicuous and easily understood link to the required information
placed on the business' homepage. In the event the retail seller or
manufacturer does not have an Internet Web site, consumers shall be
provided the written disclosure within 30 days of receiving a written
request for the disclosure from a consumer.
(c) The disclosure described in subdivision (a) shall, at a
minimum, disclose to what extent, if any, that the retail seller or
manufacturer does each of the following:
(1) Engages in verification of product supply chains to evaluate
and address risks of human trafficking and slavery. The disclosure
shall specify if the verification was not conducted by a third party.
(2) Conducts audits of suppliers to evaluate supplier compliance
with company standards for trafficking and slavery in supply chains.
The disclosure shall specify if the verification was not an
independent, unannounced audit.
(3) Requires direct suppliers to certify that materials
incorporated into the product comply with the laws regarding slavery
and human trafficking of the country or countries in which they are
doing business.
(4) Maintains internal accountability standards and procedures for
employees or contractors failing to meet company standards regarding
slavery and trafficking.
(5) Provides company employees and management, who have direct
responsibility for supply chain management, training on human
trafficking and slavery, particularly with respect to mitigating
risks within the supply chains of products.
(d) The exclusive remedy for a violation of this section shall be
an action brought by the Attorney General for injunctive relief.
Nothing in this section shall limit remedies available for a
violation of any other state or federal law.
(e) The provisions of this section shall take effect on January 1,
2012.
1715. Other obligations are prescribed by Divisions I and II of
this Code.
1716. (a) It is unlawful for a person to solicit payment of money
by another by means of a written statement or invoice, or any writing
that reasonably could be considered a bill, invoice, or statement of
account due, but is in fact a solicitation for an order, unless the
solicitation conforms to subdivisions (b) to (f), inclusive.
(b) A solicitation described in subdivision (a) shall bear on its
face either the disclaimer prescribed by subparagraph (A) of
paragraph (2) of subsection (d) of Section 3001 of Title 39 of the
United States Code or the following notice:
"THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO
OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS
OFFER."
The statutory disclaimer or the alternative notice shall be
displayed in conspicuous boldface capital letters of a color
prominently contrasting with the background against which they
appear, including all other print on the face of the solicitation and
shall be at least as large, bold, and conspicuous as any other print
on the face of the solicitation but no smaller than 30-point type.
(c) The notice or disclaimer required by this section shall be
displayed conspicuously apart from other print on the page and
immediately below each portion of the solicitation that reasonably
could be construed to specify a monetary amount due and payable by
the recipient. The notice or disclaimer shall not be preceded,
followed, or surrounded by words, symbols, or other matter that
reduces its conspicuousness or that introduces, modifies, qualifies,
or explains the required text, such as "legal notice required by law."
(d) The notice or disclaimer may not, by folding or any other
device, be rendered unintelligible or less prominent than any other
information on the face of the solicitation.
(e) If a solicitation consists of more than one page or if any
page is designed to be separated into portions, such as by tearing
along a perforated line, the notice or disclaimer shall be displayed
in its entirety on the face of each page or portion of a page that
reasonably might be considered a bill, invoice, or statement of
account due as required by subdivisions (b) and (c).
(f) For the purposes of this section, "color" includes black and
"color prominently contrasting" excludes any color, or any intensity
of an otherwise included color, that does not permit legible
reproduction by ordinary office photocopying equipment used under
normal operating conditions, and that is not at least as vivid as any
other color on the face of the solicitation.
(g) Any person damaged by noncompliance with this section, in
addition to other remedies, is entitled to damages in an amount equal
to three times the sum solicited.
(h) Any person who violates this section shall be liable for a
civil penalty not to exceed ten thousand dollars ($10,000) 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 or by any district attorney, county counsel, or city
attorney in any court of competent jurisdiction. 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 State Treasurer. If brought by a
district attorney or county counsel, the entire amount of the penalty
collected shall be paid to the treasurer of the county in which the
judgment was entered. If brought by a city attorney or city
prosecutor, one-half of the penalty shall be paid to the treasurer of
the county and one-half to the city.
(i) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, by a fine not
exceeding two thousand five hundred dollars ($2,500), or by both
that fine and imprisonment.
1717. (a) In any action on a contract, where the contract
specifically provides that attorney's fees and costs, which are
incurred to enforce that contract, shall be awarded either to one of
the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or
she is the party specified in the contract or not, shall be entitled
to reasonable attorney's fees in addition to other costs.
Where a contract provides for attorney's fees, as set forth above,
that provision shall be construed as applying to the entire
contract, unless each party was represented by counsel in the
negotiation and execution of the contract, and the fact of that
representation is specified in the contract.
Reasonable attorney's fees shall be fixed by the court, and shall
be an element of the costs of suit.
Attorney's fees provided for by this section shall not be subject
to waiver by the parties to any contract which is entered into after
the effective date of this section. Any provision in any such
contract which provides for a waiver of attorney's fees is void.
(b) (1) The court, upon notice and motion by a party, shall
determine who is the party prevailing on the contract for purposes of
this section, whether or not the suit proceeds to final judgment.
Except as provided in paragraph (2), the party prevailing on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may also determine that there is no
party prevailing on the contract for purposes of this section.
(2) Where an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing
party for purposes of this section.
Where the defendant alleges in his or her answer that he or she
tendered to the plaintiff the full amount to which he or she was
entitled, and thereupon deposits in court for the plaintiff, the
amount so tendered, and the allegation is found to be true, then the
defendant is deemed to be a party prevailing on the contract within
the meaning of this section.
Where a deposit has been made pursuant to this section, the court
shall, on the application of any party to the action, order the
deposit to be invested in an insured, interest-bearing account.
Interest on the amount shall be allocated to the parties in the same
proportion as the original funds are allocated.
(c) In an action which seeks relief in addition to that based on a
contract, if the party prevailing on the contract has damages
awarded against it on causes of action not on the contract, the
amounts awarded to the party prevailing on the contract under this
section shall be deducted from any damages awarded in favor of the
party who did not prevail on the contract. If the amount awarded
under this section exceeds the amount of damages awarded the party
not prevailing on the contract, the net amount shall be awarded the
party prevailing on the contract and judgment may be entered in favor
of the party prevailing on the contract for that net amount.
1717.5. (a) Except as otherwise provided by law or where waived by
the parties to an agreement, in any action on a contract based on a
book account, as defined in Section 337a of the Code of Civil
Procedure, entered into on or after January 1, 1987, which does not
provide for attorney's fees and costs, as provided in Section 1717,
the party who is determined to be the party prevailing on the
contract shall be entitled to reasonable attorney's fees, as provided
below, in addition to other costs. The prevailing party on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may determine that there is no
party prevailing on the contract for purposes of this section.
Reasonable attorney's fees awarded pursuant to this section for
the prevailing party bringing the action on the book account shall be
fixed by the court in an amount that shall not exceed the lesser of:
(1) eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes; and
one thousand dollars ($1,000) for all other book accounts to which
this section applies; or (2) 25 percent of the principal obligation
owing under the contract.
For the party against whom the obligation on the book account was
asserted in the action subject to this section, if that party is
found to have no obligation owing on a book account, the court shall
award that prevailing party reasonable attorney's fees not to exceed
eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes, and
one thousand dollars ($1,000) for all other book accounts to which
this section applies. These attorney's fees shall be an element of
the costs of the suit.
If there is a written agreement between the parties signed by the
person to be charged, the fees provided by this section may not be
imposed unless that agreement contains a statement that the
prevailing party in any action between the parties is entitled to the
fees provided by this section.
(b) The attorney's fees allowed pursuant to this section shall be
the lesser of either the maximum amount allowed by this section, the
amount provided by any default attorney's fee schedule adopted by the
court applicable to the suit, or an amount as otherwise provided by
the court. Any claim for attorney's fees pursuant to this section in
excess of the amounts set forth in the default attorney's fee
schedule shall be reasonable attorney's fees, as proved by the party,
as actual and necessary for the claim that is subject to this
section.
(c) This section does not
1708. Every person is bound, without contract, to abstain from
injuring the person or property of another, or infringing upon any of
his or her rights.
1708.5. (a) A person commits a sexual battery who does any of the
following:
(1) Acts with the intent to cause a harmful or offensive contact
with an intimate part of another, and a sexually offensive contact
with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact
with another by use of his or her intimate part, and a sexually
offensive contact with that person directly or indirectly results.
(3) Acts to cause an imminent apprehension of the conduct
described in paragraph (1) or (2), and a sexually offensive contact
with that person directly or indirectly results.
(b) A person who commits a sexual battery upon another is liable
to that person for damages, including, but not limited to, general
damages, special damages, and punitive damages.
(c) The court in an action pursuant to this section may award
equitable relief, including, but not limited to, an injunction,
costs, and any other relief the court deems proper.
(d) For the purposes of this section "intimate part" means the
sexual organ, anus, groin, or buttocks of any person, or the breast
of a female.
(e) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(f) For purposes of this section "offensive contact" means contact
that offends a reasonable sense of personal dignity.
1708.6. (a) A person is liable for the tort of domestic violence if
the plaintiff proves both of the following elements:
(1) The infliction of injury upon the plaintiff resulting from
abuse, as defined in subdivision (a) of Section 13700 of the Penal
Code.
(2) The abuse was committed by the defendant, a person having a
relationship with the plaintiff as defined in subdivision (b) of
Section 13700 of the Penal Code.
(b) A person who commits an act of domestic violence upon another
is liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(c) The court, in an action pursuant to this section, may grant to
a prevailing plaintiff equitable relief, an injunction, costs, and
any other relief that the court deems proper, including reasonable
attorney's fees.
(d) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(e) The time for commencement of an action under this section is
governed by Section 340.15 of the Code of Civil Procedure.
1708.7. (a) A person is liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to support
his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this paragraph, "immediate
family" means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who
regularly resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the plaintiff's
household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified
in paragraph (1), made a credible threat with the intent to place the
plaintiff in reasonable fear for his or her safety, or the safety of
an immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant cease
and abate his or her pattern of conduct and the defendant persisted
in his or her pattern of conduct.
(B) The defendant violated a restraining order, including, but not
limited to, any order issued pursuant to Section 527.6 of the Code
of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. Constitutionally protected activity is not included within
the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including
that communicated by means of an electronic communication device, or
a threat implied by a pattern of conduct or a combination of verbal,
written, or electronically communicated statements and conduct, made
with the intent and apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family.
(3) "Electronic communication device" includes, but is not limited
to, telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.
(4) "Harass" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys,
torments, or terrorizes the person, and which serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is
liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(d) In an action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(f) This section shall not be construed to impair any
constitutionally protected activity, including, but not limited to,
speech, protest, and assembly.
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
(c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
1709. One who willfully deceives another with intent to induce him
to alter his position to his injury or risk, is liable for any damage
which he thereby suffers.
1710. A deceit, within the meaning of the last section, is either:
1. The suggestion, as a fact, of that which is not true, by one
who does not believe it to be true;
2. The assertion, as a fact, of that which is not true, by one who
has no reasonable ground for believing it to be true;
3. The suppression of a fact, by one who is bound to disclose it,
or who gives information of other facts which are likely to mislead
for want of communication of that fact; or,
4. A promise, made without any intention of performing it.
1710.1. Any person who, with intent to defraud, sells or disposes
of a radio, piano, phonograph, sewing machine, washing machine,
typewriter, adding machine, comptometer, bicycle, firearm, safe,
vacuum cleaner, dictaphone, watch, watch movement, watchcase, or any
other mechanical or electrical device, appliance, contrivance,
material, piece of apparatus or equipment, from which the
manufacturer's nameplate, serial number or any other distinguishing
number or identification mark has been removed, defaced, covered,
altered or destroyed, is civilly liable to the manufacturer in the
sum of five hundred dollars ($500) per transaction and civilly liable
to the purchaser for treble the actual damages sustained by the
purchaser.
This section does not apply to those cases or instances where any
of the changes or alterations enumerated in this section have been
customarily made or done as an established practice in the ordinary
and regular conduct of business by the original manufacturer or his
duly appointed direct representative or under specific authorization
from the original manufacturer.
1710.2. (a) No cause of action arises against an owner of real
property or his or her agent, or any agent of a transferee of real
property, for the failure to disclose to the transferee the
occurrence of an occupant's death upon the real property or the
manner of death where the death has occurred more than three years
prior to the date the transferee offers to purchase, lease, or rent
the real property, or that an occupant of that property was afflicted
with, or died from, Human T-Lymphotropic Virus Type
III/Lymphadenopathy-Associated Virus. As used in this section, "agent"
includes any person licensed pursuant to Part 1 (commencing with
Section 10000) of Division 4 of the Business and Professions Code. As
used in this section, "transferee" includes a purchaser, lessee, or
renter of real property.
(b) It is the intention of the Legislature to occupy the field of
regulation of disclosure related to deaths occurring upon real
property and of AIDS in situations affecting the transfer of real
property or any estate or interest in real property.
(c) This section shall not be construed to alter the law relating
to disclosure pertaining to any other physical or mental condition or
disease, and this section shall not relieve any owner or agent of
any obligation to disclose the physical condition of the premises.
(d) Nothing in this section shall be construed to immunize an
owner or his or her agent from making an intentional
misrepresentation in response to a direct inquiry from a transferee
or a prospective transferee of real property, concerning deaths on
the real property.
1711. One who practices a deceit with intent to defraud the public,
or a particular class of persons, is deemed to have intended to
defraud every individual in that class, who is actually misled by the
deceit.
1712. One who obtains a thing without the consent of its owner, or
by a consent afterwards rescinded, or by an unlawful exaction which
the owner could not at the time prudently refuse, must restore it to
the person from whom it was thus obtained, unless he has acquired a
title thereto superior to that of such other person, or unless the
transaction was corrupt and unlawful on both sides.
1713. The restoration required by the last section must be made
without demand, except where a thing is obtained by mutual mistake,
in which case the party obtaining the thing is not bound to return it
until he has notice of the mistake.
1714. (a) Everyone is responsible, not only for the result of his
or her willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management of his or
her property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care and skill
that is required by this section. The extent of liability in these
cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings
in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v.
Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court
(1978) 21 Cal.3d 144 and to reinstate the prior judicial
interpretation of this section as it relates to proximate cause for
injuries incurred as a result of furnishing alcoholic beverages to an
intoxicated person, namely that the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages is
the proximate cause of injuries inflicted upon another by an
intoxicated person.
(c) Except as provided in subdivision (d), no social host who
furnishes alcoholic beverages to any person may be held legally
accountable for damages suffered by that person, or for injury to the
person or property of, or death of, any third person, resulting from
the consumption of those beverages.
(d) Nothing in subdivision (c) shall preclude a claim against a
parent, guardian, or another adult who knowingly furnishes alcoholic
beverages at his or her residence to a person under 21 years of age,
in which case, notwithstanding subdivision (b), the furnishing of the
alcoholic beverage may be found to be the proximate cause of
resulting injuries or death.
1714.01. (a) Domestic partners shall be entitled to recover damages
for negligent infliction of emotional distress to the same extent
that spouses are entitled to do so under California law.
(b) For the purpose of this section, "domestic partners" has the
meaning provided in Section 297 of the Family Code.
1714.1. (a) Any act of willful misconduct of a minor that results
in injury or death to another person or in any injury to the property
of another shall be imputed to the parent or guardian having custody
and control of the minor for all purposes of civil damages, and the
parent or guardian having custody and control shall be jointly and
severally liable with the minor for any damages resulting from the
willful misconduct.
Subject to the provisions of subdivision (c), the joint and
several liability of the parent or guardian having custody and
control of a minor under this subdivision shall not exceed
twenty-five thousand dollars ($25,000) for each tort of the minor,
and in the case of injury to a person, imputed liability shall be
further limited to medical, dental and hospital expenses incurred by
the injured person, not to exceed twenty-five thousand dollars
($25,000). The liability imposed by this section is in addition to
any liability now imposed by law.
(b) Any act of willful misconduct of a minor that results in the
defacement of property of another with paint or a similar substance
shall be imputed to the parent or guardian having custody and control
of the minor for all purposes of civil damages, including court
costs, and attorney's fees, to the prevailing party, and the parent
or guardian having custody and control shall be jointly and severally
liable with the minor for any damages resulting from the willful
misconduct, not to exceed twenty-five thousand dollars ($25,000),
except as provided in subdivision (c), for each tort of the minor.
(c) The amounts listed in subdivisions (a) and (b) shall be
adjusted every two years by the Judicial Council to reflect any
increases in the cost of living in California, as indicated by the
annual average of the California Consumer Price Index. The Judicial
Council shall round this adjusted amount up or down to the nearest
hundred dollars. On or before July 1 of each odd-numbered year, the
Judicial Council shall compute and publish the amounts listed in
subdivisions (a) and (b), as adjusted according to this subdivision.
(d) The maximum liability imposed by this section is the maximum
liability authorized under this section at the time that the act of
willful misconduct by a minor was committed.
(e) Nothing in this section shall impose liability on an insurer
for a loss caused by the willful act of the insured for purposes of
Section 533 of the Insurance Code. An insurer shall not be liable for
the conduct imputed to a parent or guardian by this section for any
amount in excess of ten thousand dollars ($10,000).
1714.2. (a) In order to encourage citizens to participate in
emergency medical services training programs and to render emergency
medical services to fellow citizens, no person who has completed a
basic cardiopulmonary resuscitation course which complies with the
standards adopted by the American Heart Association or the American
Red Cross for cardiopulmonary resuscitation and emergency cardiac
care, and who, in good faith, renders emergency cardiopulmonary
resuscitation at the scene of an emergency shall be liable for any
civil damages as a result of any acts or omissions by such person
rendering the emergency care.
(b) This section shall not be construed to grant immunity from
civil damages to any person whose conduct in rendering such emergency
care constitutes gross negligence.
(c) In order to encourage local agencies and other organizations
to train citizens in cardiopulmonary resuscitation techniques, no
local agency, entity of state or local government, or other public or
private organization which sponsors, authorizes, supports, finances,
or supervises the training of citizens in cardiopulmonary
resuscitation shall be liable for any civil damages alleged to result
from such training programs.
(d) In order to encourage qualified individuals to instruct
citizens in cardiopulmonary resuscitation, no person who is certified
to instruct in cardiopulmonary resuscitation by either the American
Heart Association or the American Red Cross shall be liable for any
civil damages alleged to result from the acts or omissions of an
individual who received instruction on cardiopulmonary resuscitation
by that certified instructor.
(e) This section shall not be construed to grant immunity from
civil damages to any person who renders such emergency care to an
individual with the expectation of receiving compensation from the
individual for providing the emergency care.
1714.21. (a) For purposes of this section, the following
definitions shall apply:
(1) "AED" or "defibrillator" means an automated or automatic
external defibrillator.
(2) "CPR" means cardiopulmonary resuscitation.
(b) Any person who, in good faith and not for compensation,
renders emergency care or treatment by the use of an AED at the scene
of an emergency is not liable for any civil damages resulting from
any acts or omissions in rendering the emergency care.
(c) A person or entity who provides CPR and AED training to a
person who renders emergency care pursuant to subdivision (b) is not
liable for any civil damages resulting from any acts or omissions of
the person rendering the emergency care.
(d) A person or entity that acquires an AED for emergency use
pursuant to this section is not liable for any civil damages
resulting from any acts or omissions in the rendering of the
emergency care by use of an AED, if that person or entity has
complied with subdivision (b) of Section 1797.196 of the Health and
Safety Code.
(e) A physician who is involved with the placement of an AED and
any person or entity responsible for the site where an AED is located
is not liable for any civil damages resulting from any acts or
omissions of a person who renders emergency care pursuant to
subdivision (b), if that physician, person, or entity has complied
with all of the requirements of Section 1797.196 of the Health and
Safety Code that apply to that physician, person, or entity.
(f) The protections specified in this section do not apply in the
case of personal injury or wrongful death that results from the gross
negligence or willful or wanton misconduct of the person who renders
emergency care or treatment by the use of an AED.
(g) Nothing in this section shall relieve a manufacturer,
designer, developer, distributor, installer, or supplier of an AED or
defibrillator of any liability under any applicable statute or rule
of law.
1714.22. (a) For purposes of this section:
(1) "Opioid antagonist" means naloxone hydrochloride that is
approved by the federal Food and Drug Administration for the
treatment of a drug overdose.
(2) "Opioid overdose prevention and treatment training program" or
"program" means any program operated by a local health jurisdiction
or that is registered by a local health jurisdiction to train
individuals to prevent, recognize, and respond to an opiate overdose,
and that provides, at a minimum, training in all of the following:
(A) The causes of an opiate overdose.
(B) Mouth to mouth resuscitation.
(C) How to contact appropriate emergency medical services.
(D) How to administer an opioid antagonist.
(b) A licensed health care provider who is permitted by law to
prescribe an opioid antagonist may, if acting with reasonable care,
prescribe and subsequently dispense or distribute an opioid
antagonist in conjunction with an opioid overdose prevention and
treatment training program, without being subject to civil liability
or criminal prosecution. This immunity shall apply to the licensed
health care provider even when the opioid antagonist is administered
by and to someone other than the person to whom it is prescribed.
(c) A person who is not otherwise licensed to administer an opioid
antagonist may administer an opioid antagonist in an emergency
without fee if the person has received the training information
specified in paragraph (2) of subdivision (a) and believes in good
faith that the other person is experiencing a drug overdose. The
person shall not, as a result of his or her acts or omissions, be
liable for any violation of any professional licensing statute, or
subject to any criminal prosecution arising from or related to the
unauthorized practice of medicine or the possession of an opioid
antagonist.
(d) Each local health jurisdiction that operates or registers an
opioid overdose prevention and treatment training program shall, by
January 1, 2015, collect, and report to the Senate and Assembly
Committees on Judiciary, all of the following data on programs within
the jurisdiction:
(1) Number of training programs operating in the local health
jurisdiction.
(2) Number of individuals who have received a prescription for,
and training to administer, an opioid antagonist.
(3) Number of opioid antagonist doses prescribed.
(4) Number of opioid antagonist doses administered.
(5) Number of individuals who received opioid antagonist
injections who were properly revived.
(6) Number of individuals who received opioid antagonist
injections who were not revived.
(7) Number of adverse events associated with an opioid antagonist
dose that was distributed as part of an opioid overdose prevention
and treatment training program, including a description of the
adverse events.
(e) This section shall apply only to the Counties of Alameda,
Fresno, Humboldt, Los Angeles, Mendocino, San Francisco, and Santa
Cruz.
(f) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
1714.25. (a) Except for injury resulting from negligence or a
willful act in the preparation or handling of donated food, no food
facility that donates any food that is fit for human consumption at
the time it was donated to a nonprofit charitable organization or a
food bank shall be liable for any damage or injury resulting from the
consumption of the donated food.
The immunity from civil liability provided by this subdivision
applies regardless of compliance with any laws, regulations, or
ordinances regulating the packaging or labeling of food, and
regardless of compliance with any laws, regulations, or ordinances
regulating the storage or handling of the food by the donee after the
donation of the food.
(b) A nonprofit charitable organization or a food bank that, in
good faith, receives and distributes food without charge that is fit
for human consumption at the time it was distributed is not liable
for an injury or death due to the food unless the injury or death is
a direct result of the negligence, recklessness, or intentional
misconduct of the organization.
(c) For the purposes of this section:
(1) "Nonprofit charitable organization" has the meaning defined in
Section 114440 of the Health and Safety Code.
(2) "Food bank" has the meaning defined in Section 114445 of the
Health and Safety Code.
1714.3. Civil liability for any injury to the person or property of
another proximately caused by the discharge of a firearm by a minor
under the age of 18 years shall be imputed to a parent or guardian
having custody and control of the minor for all purposes of civil
damages, and such parent or guardian shall be jointly and severally
liable with such minor for any damages resulting from such act, if
such parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor.
The liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or group of
persons collectively, shall incur liability under this section in any
amount exceeding thirty thousand dollars ($30,000) for injury to or
death of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding sixty thousand dollars
($60,000) for injury to or death of all persons as a result of any
one such occurrence.
1714.4. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the obligor's assets
transferred or hidden. The maximum liability imposed by this section
shall not exceed the entire child support obligation due. Any funds
or assets collected pursuant to this section shall be paid to the
child support obligee, and shall not reduce the amount of the unpaid
child support obligation. Upon the satisfaction of the unpaid child
support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, with actual
knowledge of the child support obligation, helping to hide or
transfer assets of the child support obligor.
(c) This section shall not apply to a financial institution unless
the financial institution has actual knowledge of the child support
obligation and, with that knowledge, knowingly assists the obligor to
escape, evade, or avoid paying the child support obligation.
However, a financial institution with knowledge of an asset transfer
has no duty to inquire into the rightfulness of the transaction, nor
shall it be deemed to have knowingly assisted an obligor to escape,
evade, or avoid paying the child support obligation if that
assistance is provided by an employee or agent of the financial
institution acting outside the terms and conditions of employment or
agency without the actual knowledge of the financial institution.
1714.41. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the assets transferred or
hidden, or the amount of the wages or other compensation paid to the
child support obligor but not reported. The maximum liability imposed
by this section shall not exceed the entire child support obligation
due. Any funds or assets collected pursuant to this section shall be
paid to the child support obligee, and shall not reduce the amount
of the unpaid child support obligation. Upon the satisfaction of the
unpaid child support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, but are not
limited to, any of the following actions taken when the individual or
entity knew or should have known of the child support obligation:
(1) Hiring or employing the child support obligor as an employee
in a trade or business and failing to timely file a report of new
employees with the California New Employee Registry maintained by the
Employment Development Department.
(2) Engaging the child support obligor as a service provider and
failing to timely file a report with the Employment Development
Department as required by Section 1088.8 of the Unemployment
Insurance Code.
(3) When engaged in a trade or business, paying wages or other
forms of compensation for services rendered by a child support
obligor that are not reported to the Employment Development
Department as required, including, but not limited to, payment in
cash or via barter or trade.
1714.45. (a) In a product liability action, a manufacturer or
seller shall not be liable if both of the following apply:
(1) The product is inherently unsafe and the product is known to
be unsafe by the ordinary consumer who consumes the product with the
ordinary knowledge common to the community.
(2) The product is a common consumer product intended for personal
consumption, such as sugar, castor oil, alcohol, and butter, as
identified in comment i to Section 402A of the Restatement (Second)
of Torts.
(b) This section does not exempt the manufacture or sale of
tobacco products by tobacco manufacturers and their successors in
interest from product liability actions, but does exempt the sale or
distribution of tobacco products by any other person, including, but
not limited to, retailers or distributors.
(c) For purposes of this section, the term "product liability
action" means any action for injury or death caused by a product,
except that the term does not include an action based on a
manufacturing defect or breach of an express warranty.
(d) This section is intended to be declarative of and does not
alter or amend existing California law, including Cronin v. J.B.E.
Olson Corp. (1972), 8 Cal. 3d 121, and shall apply to all product
liability actions pending on, or commenced after, January 1, 1988.
(e) This section does not apply to, and never applied to, an
action brought by a public entity to recover the value of benefits
provided to individuals injured by a tobacco-related illness caused
by the tortious conduct of a tobacco company or its successor in
interest, including, but not limited to, an action brought pursuant
to Section 14124.71 of the Welfare and Institutions Code. In the
action brought by a public entity, the fact that the injured
individual's claim against the defendant may be barred by a prior
version of this section shall not be a defense. This subdivision does
not constitute a change in, but is declaratory of, existing law
relating to tobacco products.
(f) It is the intention of the Legislature in enacting the
amendments to subdivisions (a) and (b) of this section adopted at the
1997-98 Regular Session to declare that there exists no statutory
bar to tobacco-related personal injury, wrongful death, or other tort
claims against tobacco manufacturers and their successors in
interest by California smokers or others who have suffered or
incurred injuries, damages, or costs arising from the promotion,
marketing, sale, or consumption of tobacco products. It is also the
intention of the Legislature to clarify that those claims that were
or are brought shall be determined on their merits, without the
imposition of any claim of statutory bar or categorical defense.
(g) This section shall not be construed to grant immunity to a
tobacco industry research organization.
1714.5. (a) There shall be no liability on the part of one,
including the State of California, county, city and county, city or
any other political subdivision of the State of California, who owns
or maintains any building or premises which have been designated as a
shelter from destructive operations or attacks by enemies of the
United States by any disaster council or any public office, body, or
officer of this state or of the United States, or which have been
designated or are used as mass care centers, first aid stations,
temporary hospital annexes, or as other necessary facilities for
mitigating the effects of a natural, manmade, or war-caused
emergency, for any injuries arising out of the use thereof for such
purposes sustained by any person while in or upon said building or
premises as a result of the condition of said building or premises or
as a result of any act or omission, or in any way arising from the
designation of such premises as a shelter, or the designation or use
thereof as a mass care center, first aid station, temporary hospital
annex, or other necessary facility for emergency purposes, except a
willful act, of such owner or occupant or his or her servants, agents
or employees when such person has entered or gone upon or into said
building or premises for the purpose of seeking refuge, treatment,
care, or assistance therein during destructive operations or attacks
by enemies of the United States or during tests ordered by lawful
authority or during a natural or manmade emergency.
(b) Notwithstanding any other provision of law, no disaster
service worker who is performing disaster services during a state of
war emergency, a state of emergency, or a local emergency, as such
emergencies are defined in Section 8558 of the Government Code, shall
be liable for civil damages on account of personal injury to or
death of any person or damage to property resulting from any act or
omission while performing disaster services anywhere within any
jurisdiction covered by such emergency, except one that is willful.
(c) For purposes of this subdivision, a disaster service worker
shall be performing disaster services when acting within the scope of
the disaster service worker's responsibilities under the authority
of the governmental emergency organization.
(d) For purposes of this subdivision, "governmental emergency
organization" shall mean the emergency organization of any state,
city, city and county, county, district, or other local governmental
agency or public agency, which is authorized pursuant to the
California Emergency Services Act (Chapter 7 (commencing with Section
8550) of Division 1 of Title 2 of the Government Code).
(e) Nothing in this section shall be construed to alter any
existing legal duties or obligations. The amendments to this section
made by the act amending this section shall apply exclusively to any
legal action filed on or after the effective date of the act.
1714.6. The violation of any statute or ordinance shall not
establish negligence as a matter of law where the act or omission
involved was required in order to comply with an order or
proclamation of any military commander who is authorized to issue
such orders or proclamations; nor when the act or omission involved
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. No person shall be prosecuted for a violation of any
statute or ordinance when violation of such statute or ordinance is
required in order to comply with an order or proclamation of any
military commander who is authorized to issue such orders or
proclamations; nor shall any person be prosecuted for a violation of
any statute or ordinance when violation of such statute or ordinance
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. The provisions of this section shall apply to such acts
or omissions whether occurring prior to or after the effective date
of this section.
1714.7. No person who is injured while getting on, or attempting to
get on, a moving locomotive or railroad car, without authority from
the owner or operator of the railroad, or who, having gotten on a
locomotive or railroad car while in motion without such authority, is
injured while so riding or getting off, shall recover any damages
from the owner or operator thereof for such injuries unless
proximately caused by an intentional act of such owner or operator
with knowledge that serious injury is the probable result of such
act, or with a wanton and reckless disregard of the probable result
of such act.
1714.8. (a) No health care provider shall be liable for
professional negligence or malpractice for any occurrence or result
solely on the basis that the occurrence or result was caused by the
natural course of a disease or condition, or was the natural or
expected result of reasonable treatment rendered for the disease or
condition. This section shall not be construed so as to limit
liability for the failure to inform of the risks of treatment or
failure to accept treatment, or for negligent diagnosis or treatment
or the negligent failure to diagnose or treat.
(b) As used in this section, "health care provider" means any
person licensed or certified pursuant to Division 2 (commencing with
Section 500) of the Business and Professions Code, or licensed
pursuant to the Osteopathic Initiative Act or the Chiropractic
Initiative Act, or certified pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code, and any
clinic, health dispensary, or health facility licensed pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code.
1714.9. (a) Notwithstanding statutory or decisional law to the
contrary, any person is responsible not only for the results of that
person's willful acts causing injury to a peace officer, firefighter,
or any emergency medical personnel employed by a public entity, but
also for any injury occasioned to that person by the want of ordinary
care or skill in the management of the person's property or person,
in any of the following situations:
(1) Where the conduct causing the injury occurs after the person
knows or should have known of the presence of the peace officer,
firefighter, or emergency medical personnel.
(2) Where the conduct causing injury violates a statute,
ordinance, or regulation, and the conduct causing injury was itself
not the event that precipitated either the response or presence of
the peace officer, firefighter, or emergency medical personnel.
(3) Where the conduct causing the injury was intended to injure
the peace officer, firefighter, or emergency medical personnel.
(4) Where the conduct causing the injury is arson as defined in
Section 451 of the Penal Code.
(b) This section does not preclude the reduction of an award of
damages because of the comparative fault of the peace officer,
firefighter, or emergency medical personnel in causing the injury.
(c) The employer of a firefighter, peace officer or emergency
medical personnel may be subrogated to the rights granted by this
section to the extent of the worker's compensation benefits, and
other liabilities of the employer, including all salary, wage,
pension, or other emolument paid to the employee or the employee's
dependents.
(d) The liability imposed by this section shall not apply to an
employer of a peace officer, firefighter, or emergency medical
personnel.
(e) This section is not intended to change or modify the common
law independent cause exception to the firefighter's rule as set
forth in Donohue v. San Francisco Housing Authority (1993) 16
Cal.App.4th 658.
1714.10. (a) No cause of action against an attorney for a civil
conspiracy with his or her client arising from any attempt to contest
or compromise a claim or dispute, and which is based upon the
attorney's representation of the client, shall be included in a
complaint or other pleading unless the court enters an order allowing
the pleading that includes the claim for civil conspiracy to be
filed after the court determines that the party seeking to file the
pleading has established that there is a reasonable probability that
the party will prevail in the action. The court may allow the filing
of a pleading claiming liability based upon such a civil conspiracy
following the filing of a verified petition therefor accompanied by
the proposed pleading and supporting affidavits stating the facts
upon which the liability is based. The court shall order service of
the petition upon the party against whom the action is proposed to be
filed and permit that party to submit opposing affidavits prior to
making its determination. The filing of the petition, proposed
pleading, and accompanying affidavits shall toll the running of any
applicable statute of limitations until the final determination of
the matter, which ruling, if favorable to the petitioning party,
shall permit the proposed pleading to be filed.
(b) Failure to obtain a court order where required by subdivision
(a) shall be a defense to any action for civil conspiracy filed in
violation thereof. The defense shall be raised by the attorney
charged with civil conspiracy upon that attorney's first appearance
by demurrer, motion to strike, or such other motion or application as
may be appropriate. Failure to timely raise the defense shall
constitute a waiver thereof.
(c) This section shall not apply to a cause of action against an
attorney for a civil conspiracy with his or her client, where (1) the
attorney has an independent legal duty to the plaintiff, or (2) the
attorney's acts go beyond the performance of a professional duty to
serve the client and involve a conspiracy to violate a legal duty in
furtherance of the attorney's financial gain.
(d) This section establishes a special proceeding of a civil
nature. Any order made under subdivision (a), (b), or (c) which
determines the rights of a petitioner or an attorney against whom a
pleading has been or is proposed to be filed, shall be appealable as
a final judgment in a civil action.
(e) Subdivision (d) does not constitute a change in, but is
declaratory of, the existing law.
1714.11. (a) Except for damage or injury proximately caused by a
grossly negligent act or omission or willful or wanton misconduct of
the donor, no public employee or public entity, including, but not
limited to, a fire department, a fire protection district, or the
Department of Forestry and Fire Protection, that donates fire
protection apparatus or equipment to a volunteer fire department,
volunteer fire protection district, or volunteer fire company is
liable for any damage or injury that results from the use of that
apparatus or equipment by the recipient fire department, fire
protection district, or fire company.
(b) (1) The immunity provided by this section only shall apply if
the donor of the fire protection apparatus or equipment discloses in
writing to the recipient fire department, fire protection district,
or fire company any known damage to, or deficiencies in, the
apparatus and equipment.
(2) A volunteer fire department, volunteer fire protection
district, or volunteer fire company that receives donated fire
protection apparatus or equipment shall inspect and repair the
apparatus and equipment prior to use for public safety purposes.
1714.43. (a) (1) Every retail seller and manufacturer doing
business in this state and having annual worldwide gross receipts
that exceed one hundred million dollars ($100,000,000) shall
disclose, as set forth in subdivision (c), its efforts to eradicate
slavery and human trafficking from its direct supply chain for
tangible goods offered for sale.
(2) For the purposes of this section, the following definitions
shall apply:
(A) "Doing business in this state" shall have the same meaning as
set forth in Section 23101 of the Revenue and Taxation Code.
(B) "Gross receipts" shall have the same meaning as set forth in
Section 25120 of the Revenue and Taxation Code.
(C) "Manufacturer" means a business entity with manufacturing as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(D) "Retail seller" means a business entity with retail trade as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The disclosure described in subdivision (a) shall be posted on
the retail seller's or manufacturer's Internet Web site with a
conspicuous and easily understood link to the required information
placed on the business' homepage. In the event the retail seller or
manufacturer does not have an Internet Web site, consumers shall be
provided the written disclosure within 30 days of receiving a written
request for the disclosure from a consumer.
(c) The disclosure described in subdivision (a) shall, at a
minimum, disclose to what extent, if any, that the retail seller or
manufacturer does each of the following:
(1) Engages in verification of product supply chains to evaluate
and address risks of human trafficking and slavery. The disclosure
shall specify if the verification was not conducted by a third party.
(2) Conducts audits of suppliers to evaluate supplier compliance
with company standards for trafficking and slavery in supply chains.
The disclosure shall specify if the verification was not an
independent, unannounced audit.
(3) Requires direct suppliers to certify that materials
incorporated into the product comply with the laws regarding slavery
and human trafficking of the country or countries in which they are
doing business.
(4) Maintains internal accountability standards and procedures for
employees or contractors failing to meet company standards regarding
slavery and trafficking.
(5) Provides company employees and management, who have direct
responsibility for supply chain management, training on human
trafficking and slavery, particularly with respect to mitigating
risks within the supply chains of products.
(d) The exclusive remedy for a violation of this section shall be
an action brought by the Attorney General for injunctive relief.
Nothing in this section shall limit remedies available for a
violation of any other state or federal law.
(e) The provisions of this section shall take effect on January 1,
2012.
1715. Other obligations are prescribed by Divisions I and II of
this Code.
1716. (a) It is unlawful for a person to solicit payment of money
by another by means of a written statement or invoice, or any writing
that reasonably could be considered a bill, invoice, or statement of
account due, but is in fact a solicitation for an order, unless the
solicitation conforms to subdivisions (b) to (f), inclusive.
(b) A solicitation described in subdivision (a) shall bear on its
face either the disclaimer prescribed by subparagraph (A) of
paragraph (2) of subsection (d) of Section 3001 of Title 39 of the
United States Code or the following notice:
"THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO
OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS
OFFER."
The statutory disclaimer or the alternative notice shall be
displayed in conspicuous boldface capital letters of a color
prominently contrasting with the background against which they
appear, including all other print on the face of the solicitation and
shall be at least as large, bold, and conspicuous as any other print
on the face of the solicitation but no smaller than 30-point type.
(c) The notice or disclaimer required by this section shall be
displayed conspicuously apart from other print on the page and
immediately below each portion of the solicitation that reasonably
could be construed to specify a monetary amount due and payable by
the recipient. The notice or disclaimer shall not be preceded,
followed, or surrounded by words, symbols, or other matter that
reduces its conspicuousness or that introduces, modifies, qualifies,
or explains the required text, such as "legal notice required by law."
(d) The notice or disclaimer may not, by folding or any other
device, be rendered unintelligible or less prominent than any other
information on the face of the solicitation.
(e) If a solicitation consists of more than one page or if any
page is designed to be separated into portions, such as by tearing
along a perforated line, the notice or disclaimer shall be displayed
in its entirety on the face of each page or portion of a page that
reasonably might be considered a bill, invoice, or statement of
account due as required by subdivisions (b) and (c).
(f) For the purposes of this section, "color" includes black and
"color prominently contrasting" excludes any color, or any intensity
of an otherwise included color, that does not permit legible
reproduction by ordinary office photocopying equipment used under
normal operating conditions, and that is not at least as vivid as any
other color on the face of the solicitation.
(g) Any person damaged by noncompliance with this section, in
addition to other remedies, is entitled to damages in an amount equal
to three times the sum solicited.
(h) Any person who violates this section shall be liable for a
civil penalty not to exceed ten thousand dollars ($10,000) 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 or by any district attorney, county counsel, or city
attorney in any court of competent jurisdiction. 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 State Treasurer. If brought by a
district attorney or county counsel, the entire amount of the penalty
collected shall be paid to the treasurer of the county in which the
judgment was entered. If brought by a city attorney or city
prosecutor, one-half of the penalty shall be paid to the treasurer of
the county and one-half to the city.
(i) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, by a fine not
exceeding two thousand five hundred dollars ($2,500), or by both
that fine and imprisonment.
1717. (a) In any action on a contract, where the contract
specifically provides that attorney's fees and costs, which are
incurred to enforce that contract, shall be awarded either to one of
the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or
she is the party specified in the contract or not, shall be entitled
to reasonable attorney's fees in addition to other costs.
Where a contract provides for attorney's fees, as set forth above,
that provision shall be construed as applying to the entire
contract, unless each party was represented by counsel in the
negotiation and execution of the contract, and the fact of that
representation is specified in the contract.
Reasonable attorney's fees shall be fixed by the court, and shall
be an element of the costs of suit.
Attorney's fees provided for by this section shall not be subject
to waiver by the parties to any contract which is entered into after
the effective date of this section. Any provision in any such
contract which provides for a waiver of attorney's fees is void.
(b) (1) The court, upon notice and motion by a party, shall
determine who is the party prevailing on the contract for purposes of
this section, whether or not the suit proceeds to final judgment.
Except as provided in paragraph (2), the party prevailing on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may also determine that there is no
party prevailing on the contract for purposes of this section.
(2) Where an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing
party for purposes of this section.
Where the defendant alleges in his or her answer that he or she
tendered to the plaintiff the full amount to which he or she was
entitled, and thereupon deposits in court for the plaintiff, the
amount so tendered, and the allegation is found to be true, then the
defendant is deemed to be a party prevailing on the contract within
the meaning of this section.
Where a deposit has been made pursuant to this section, the court
shall, on the application of any party to the action, order the
deposit to be invested in an insured, interest-bearing account.
Interest on the amount shall be allocated to the parties in the same
proportion as the original funds are allocated.
(c) In an action which seeks relief in addition to that based on a
contract, if the party prevailing on the contract has damages
awarded against it on causes of action not on the contract, the
amounts awarded to the party prevailing on the contract under this
section shall be deducted from any damages awarded in favor of the
party who did not prevail on the contract. If the amount awarded
under this section exceeds the amount of damages awarded the party
not prevailing on the contract, the net amount shall be awarded the
party prevailing on the contract and judgment may be entered in favor
of the party prevailing on the contract for that net amount.
1717.5. (a) Except as otherwise provided by law or where waived by
the parties to an agreement, in any action on a contract based on a
book account, as defined in Section 337a of the Code of Civil
Procedure, entered into on or after January 1, 1987, which does not
provide for attorney's fees and costs, as provided in Section 1717,
the party who is determined to be the party prevailing on the
contract shall be entitled to reasonable attorney's fees, as provided
below, in addition to other costs. The prevailing party on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may determine that there is no
party prevailing on the contract for purposes of this section.
Reasonable attorney's fees awarded pursuant to this section for
the prevailing party bringing the action on the book account shall be
fixed by the court in an amount that shall not exceed the lesser of:
(1) eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes; and
one thousand dollars ($1,000) for all other book accounts to which
this section applies; or (2) 25 percent of the principal obligation
owing under the contract.
For the party against whom the obligation on the book account was
asserted in the action subject to this section, if that party is
found to have no obligation owing on a book account, the court shall
award that prevailing party reasonable attorney's fees not to exceed
eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes, and
one thousand dollars ($1,000) for all other book accounts to which
this section applies. These attorney's fees shall be an element of
the costs of the suit.
If there is a written agreement between the parties signed by the
person to be charged, the fees provided by this section may not be
imposed unless that agreement contains a statement that the
prevailing party in any action between the parties is entitled to the
fees provided by this section.
(b) The attorney's fees allowed pursuant to this section shall be
the lesser of either the maximum amount allowed by this section, the
amount provided by any default attorney's fee schedule adopted by the
court applicable to the suit, or an amount as otherwise provided by
the court. Any claim for attorney's fees pursuant to this section in
excess of the amounts set forth in the default attorney's fee
schedule shall be reasonable attorney's fees, as proved by the party,
as actual and necessary for the claim that is subject to this
section.
(c) This section does not
1708. Every person is bound, without contract, to abstain from
injuring the person or property of another, or infringing upon any of
his or her rights.
1708.5. (a) A person commits a sexual battery who does any of the
following:
(1) Acts with the intent to cause a harmful or offensive contact
with an intimate part of another, and a sexually offensive contact
with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact
with another by use of his or her intimate part, and a sexually
offensive contact with that person directly or indirectly results.
(3) Acts to cause an imminent apprehension of the conduct
described in paragraph (1) or (2), and a sexually offensive contact
with that person directly or indirectly results.
(b) A person who commits a sexual battery upon another is liable
to that person for damages, including, but not limited to, general
damages, special damages, and punitive damages.
(c) The court in an action pursuant to this section may award
equitable relief, including, but not limited to, an injunction,
costs, and any other relief the court deems proper.
(d) For the purposes of this section "intimate part" means the
sexual organ, anus, groin, or buttocks of any person, or the breast
of a female.
(e) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(f) For purposes of this section "offensive contact" means contact
that offends a reasonable sense of personal dignity.
1708.6. (a) A person is liable for the tort of domestic violence if
the plaintiff proves both of the following elements:
(1) The infliction of injury upon the plaintiff resulting from
abuse, as defined in subdivision (a) of Section 13700 of the Penal
Code.
(2) The abuse was committed by the defendant, a person having a
relationship with the plaintiff as defined in subdivision (b) of
Section 13700 of the Penal Code.
(b) A person who commits an act of domestic violence upon another
is liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(c) The court, in an action pursuant to this section, may grant to
a prevailing plaintiff equitable relief, an injunction, costs, and
any other relief that the court deems proper, including reasonable
attorney's fees.
(d) The rights and remedies provided in this section are in
addition to any other rights and remedies provided by law.
(e) The time for commencement of an action under this section is
governed by Section 340.15 of the Code of Civil Procedure.
1708.7. (a) A person is liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to support
his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this paragraph, "immediate
family" means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who
regularly resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the plaintiff's
household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified
in paragraph (1), made a credible threat with the intent to place the
plaintiff in reasonable fear for his or her safety, or the safety of
an immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant cease
and abate his or her pattern of conduct and the defendant persisted
in his or her pattern of conduct.
(B) The defendant violated a restraining order, including, but not
limited to, any order issued pursuant to Section 527.6 of the Code
of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. Constitutionally protected activity is not included within
the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including
that communicated by means of an electronic communication device, or
a threat implied by a pattern of conduct or a combination of verbal,
written, or electronically communicated statements and conduct, made
with the intent and apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family.
(3) "Electronic communication device" includes, but is not limited
to, telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.
(4) "Harass" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys,
torments, or terrorizes the person, and which serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is
liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(d) In an action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(f) This section shall not be construed to impair any
constitutionally protected activity, including, but not limited to,
speech, protest, and assembly.
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
(c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
1709. One who willfully deceives another with intent to induce him
to alter his position to his injury or risk, is liable for any damage
which he thereby suffers.
1710. A deceit, within the meaning of the last section, is either:
1. The suggestion, as a fact, of that which is not true, by one
who does not believe it to be true;
2. The assertion, as a fact, of that which is not true, by one who
has no reasonable ground for believing it to be true;
3. The suppression of a fact, by one who is bound to disclose it,
or who gives information of other facts which are likely to mislead
for want of communication of that fact; or,
4. A promise, made without any intention of performing it.
1710.1. Any person who, with intent to defraud, sells or disposes
of a radio, piano, phonograph, sewing machine, washing machine,
typewriter, adding machine, comptometer, bicycle, firearm, safe,
vacuum cleaner, dictaphone, watch, watch movement, watchcase, or any
other mechanical or electrical device, appliance, contrivance,
material, piece of apparatus or equipment, from which the
manufacturer's nameplate, serial number or any other distinguishing
number or identification mark has been removed, defaced, covered,
altered or destroyed, is civilly liable to the manufacturer in the
sum of five hundred dollars ($500) per transaction and civilly liable
to the purchaser for treble the actual damages sustained by the
purchaser.
This section does not apply to those cases or instances where any
of the changes or alterations enumerated in this section have been
customarily made or done as an established practice in the ordinary
and regular conduct of business by the original manufacturer or his
duly appointed direct representative or under specific authorization
from the original manufacturer.
1710.2. (a) No cause of action arises against an owner of real
property or his or her agent, or any agent of a transferee of real
property, for the failure to disclose to the transferee the
occurrence of an occupant's death upon the real property or the
manner of death where the death has occurred more than three years
prior to the date the transferee offers to purchase, lease, or rent
the real property, or that an occupant of that property was afflicted
with, or died from, Human T-Lymphotropic Virus Type
III/Lymphadenopathy-Associated Virus. As used in this section, "agent"
includes any person licensed pursuant to Part 1 (commencing with
Section 10000) of Division 4 of the Business and Professions Code. As
used in this section, "transferee" includes a purchaser, lessee, or
renter of real property.
(b) It is the intention of the Legislature to occupy the field of
regulation of disclosure related to deaths occurring upon real
property and of AIDS in situations affecting the transfer of real
property or any estate or interest in real property.
(c) This section shall not be construed to alter the law relating
to disclosure pertaining to any other physical or mental condition or
disease, and this section shall not relieve any owner or agent of
any obligation to disclose the physical condition of the premises.
(d) Nothing in this section shall be construed to immunize an
owner or his or her agent from making an intentional
misrepresentation in response to a direct inquiry from a transferee
or a prospective transferee of real property, concerning deaths on
the real property.
1711. One who practices a deceit with intent to defraud the public,
or a particular class of persons, is deemed to have intended to
defraud every individual in that class, who is actually misled by the
deceit.
1712. One who obtains a thing without the consent of its owner, or
by a consent afterwards rescinded, or by an unlawful exaction which
the owner could not at the time prudently refuse, must restore it to
the person from whom it was thus obtained, unless he has acquired a
title thereto superior to that of such other person, or unless the
transaction was corrupt and unlawful on both sides.
1713. The restoration required by the last section must be made
without demand, except where a thing is obtained by mutual mistake,
in which case the party obtaining the thing is not bound to return it
until he has notice of the mistake.
1714. (a) Everyone is responsible, not only for the result of his
or her willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management of his or
her property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care and skill
that is required by this section. The extent of liability in these
cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings
in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v.
Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court
(1978) 21 Cal.3d 144 and to reinstate the prior judicial
interpretation of this section as it relates to proximate cause for
injuries incurred as a result of furnishing alcoholic beverages to an
intoxicated person, namely that the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages is
the proximate cause of injuries inflicted upon another by an
intoxicated person.
(c) Except as provided in subdivision (d), no social host who
furnishes alcoholic beverages to any person may be held legally
accountable for damages suffered by that person, or for injury to the
person or property of, or death of, any third person, resulting from
the consumption of those beverages.
(d) Nothing in subdivision (c) shall preclude a claim against a
parent, guardian, or another adult who knowingly furnishes alcoholic
beverages at his or her residence to a person under 21 years of age,
in which case, notwithstanding subdivision (b), the furnishing of the
alcoholic beverage may be found to be the proximate cause of
resulting injuries or death.
1714.01. (a) Domestic partners shall be entitled to recover damages
for negligent infliction of emotional distress to the same extent
that spouses are entitled to do so under California law.
(b) For the purpose of this section, "domestic partners" has the
meaning provided in Section 297 of the Family Code.
1714.1. (a) Any act of willful misconduct of a minor that results
in injury or death to another person or in any injury to the property
of another shall be imputed to the parent or guardian having custody
and control of the minor for all purposes of civil damages, and the
parent or guardian having custody and control shall be jointly and
severally liable with the minor for any damages resulting from the
willful misconduct.
Subject to the provisions of subdivision (c), the joint and
several liability of the parent or guardian having custody and
control of a minor under this subdivision shall not exceed
twenty-five thousand dollars ($25,000) for each tort of the minor,
and in the case of injury to a person, imputed liability shall be
further limited to medical, dental and hospital expenses incurred by
the injured person, not to exceed twenty-five thousand dollars
($25,000). The liability imposed by this section is in addition to
any liability now imposed by law.
(b) Any act of willful misconduct of a minor that results in the
defacement of property of another with paint or a similar substance
shall be imputed to the parent or guardian having custody and control
of the minor for all purposes of civil damages, including court
costs, and attorney's fees, to the prevailing party, and the parent
or guardian having custody and control shall be jointly and severally
liable with the minor for any damages resulting from the willful
misconduct, not to exceed twenty-five thousand dollars ($25,000),
except as provided in subdivision (c), for each tort of the minor.
(c) The amounts listed in subdivisions (a) and (b) shall be
adjusted every two years by the Judicial Council to reflect any
increases in the cost of living in California, as indicated by the
annual average of the California Consumer Price Index. The Judicial
Council shall round this adjusted amount up or down to the nearest
hundred dollars. On or before July 1 of each odd-numbered year, the
Judicial Council shall compute and publish the amounts listed in
subdivisions (a) and (b), as adjusted according to this subdivision.
(d) The maximum liability imposed by this section is the maximum
liability authorized under this section at the time that the act of
willful misconduct by a minor was committed.
(e) Nothing in this section shall impose liability on an insurer
for a loss caused by the willful act of the insured for purposes of
Section 533 of the Insurance Code. An insurer shall not be liable for
the conduct imputed to a parent or guardian by this section for any
amount in excess of ten thousand dollars ($10,000).
1714.2. (a) In order to encourage citizens to participate in
emergency medical services training programs and to render emergency
medical services to fellow citizens, no person who has completed a
basic cardiopulmonary resuscitation course which complies with the
standards adopted by the American Heart Association or the American
Red Cross for cardiopulmonary resuscitation and emergency cardiac
care, and who, in good faith, renders emergency cardiopulmonary
resuscitation at the scene of an emergency shall be liable for any
civil damages as a result of any acts or omissions by such person
rendering the emergency care.
(b) This section shall not be construed to grant immunity from
civil damages to any person whose conduct in rendering such emergency
care constitutes gross negligence.
(c) In order to encourage local agencies and other organizations
to train citizens in cardiopulmonary resuscitation techniques, no
local agency, entity of state or local government, or other public or
private organization which sponsors, authorizes, supports, finances,
or supervises the training of citizens in cardiopulmonary
resuscitation shall be liable for any civil damages alleged to result
from such training programs.
(d) In order to encourage qualified individuals to instruct
citizens in cardiopulmonary resuscitation, no person who is certified
to instruct in cardiopulmonary resuscitation by either the American
Heart Association or the American Red Cross shall be liable for any
civil damages alleged to result from the acts or omissions of an
individual who received instruction on cardiopulmonary resuscitation
by that certified instructor.
(e) This section shall not be construed to grant immunity from
civil damages to any person who renders such emergency care to an
individual with the expectation of receiving compensation from the
individual for providing the emergency care.
1714.21. (a) For purposes of this section, the following
definitions shall apply:
(1) "AED" or "defibrillator" means an automated or automatic
external defibrillator.
(2) "CPR" means cardiopulmonary resuscitation.
(b) Any person who, in good faith and not for compensation,
renders emergency care or treatment by the use of an AED at the scene
of an emergency is not liable for any civil damages resulting from
any acts or omissions in rendering the emergency care.
(c) A person or entity who provides CPR and AED training to a
person who renders emergency care pursuant to subdivision (b) is not
liable for any civil damages resulting from any acts or omissions of
the person rendering the emergency care.
(d) A person or entity that acquires an AED for emergency use
pursuant to this section is not liable for any civil damages
resulting from any acts or omissions in the rendering of the
emergency care by use of an AED, if that person or entity has
complied with subdivision (b) of Section 1797.196 of the Health and
Safety Code.
(e) A physician who is involved with the placement of an AED and
any person or entity responsible for the site where an AED is located
is not liable for any civil damages resulting from any acts or
omissions of a person who renders emergency care pursuant to
subdivision (b), if that physician, person, or entity has complied
with all of the requirements of Section 1797.196 of the Health and
Safety Code that apply to that physician, person, or entity.
(f) The protections specified in this section do not apply in the
case of personal injury or wrongful death that results from the gross
negligence or willful or wanton misconduct of the person who renders
emergency care or treatment by the use of an AED.
(g) Nothing in this section shall relieve a manufacturer,
designer, developer, distributor, installer, or supplier of an AED or
defibrillator of any liability under any applicable statute or rule
of law.
1714.22. (a) For purposes of this section:
(1) "Opioid antagonist" means naloxone hydrochloride that is
approved by the federal Food and Drug Administration for the
treatment of a drug overdose.
(2) "Opioid overdose prevention and treatment training program" or
"program" means any program operated by a local health jurisdiction
or that is registered by a local health jurisdiction to train
individuals to prevent, recognize, and respond to an opiate overdose,
and that provides, at a minimum, training in all of the following:
(A) The causes of an opiate overdose.
(B) Mouth to mouth resuscitation.
(C) How to contact appropriate emergency medical services.
(D) How to administer an opioid antagonist.
(b) A licensed health care provider who is permitted by law to
prescribe an opioid antagonist may, if acting with reasonable care,
prescribe and subsequently dispense or distribute an opioid
antagonist in conjunction with an opioid overdose prevention and
treatment training program, without being subject to civil liability
or criminal prosecution. This immunity shall apply to the licensed
health care provider even when the opioid antagonist is administered
by and to someone other than the person to whom it is prescribed.
(c) A person who is not otherwise licensed to administer an opioid
antagonist may administer an opioid antagonist in an emergency
without fee if the person has received the training information
specified in paragraph (2) of subdivision (a) and believes in good
faith that the other person is experiencing a drug overdose. The
person shall not, as a result of his or her acts or omissions, be
liable for any violation of any professional licensing statute, or
subject to any criminal prosecution arising from or related to the
unauthorized practice of medicine or the possession of an opioid
antagonist.
(d) Each local health jurisdiction that operates or registers an
opioid overdose prevention and treatment training program shall, by
January 1, 2015, collect, and report to the Senate and Assembly
Committees on Judiciary, all of the following data on programs within
the jurisdiction:
(1) Number of training programs operating in the local health
jurisdiction.
(2) Number of individuals who have received a prescription for,
and training to administer, an opioid antagonist.
(3) Number of opioid antagonist doses prescribed.
(4) Number of opioid antagonist doses administered.
(5) Number of individuals who received opioid antagonist
injections who were properly revived.
(6) Number of individuals who received opioid antagonist
injections who were not revived.
(7) Number of adverse events associated with an opioid antagonist
dose that was distributed as part of an opioid overdose prevention
and treatment training program, including a description of the
adverse events.
(e) This section shall apply only to the Counties of Alameda,
Fresno, Humboldt, Los Angeles, Mendocino, San Francisco, and Santa
Cruz.
(f) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
1714.25. (a) Except for injury resulting from negligence or a
willful act in the preparation or handling of donated food, no food
facility that donates any food that is fit for human consumption at
the time it was donated to a nonprofit charitable organization or a
food bank shall be liable for any damage or injury resulting from the
consumption of the donated food.
The immunity from civil liability provided by this subdivision
applies regardless of compliance with any laws, regulations, or
ordinances regulating the packaging or labeling of food, and
regardless of compliance with any laws, regulations, or ordinances
regulating the storage or handling of the food by the donee after the
donation of the food.
(b) A nonprofit charitable organization or a food bank that, in
good faith, receives and distributes food without charge that is fit
for human consumption at the time it was distributed is not liable
for an injury or death due to the food unless the injury or death is
a direct result of the negligence, recklessness, or intentional
misconduct of the organization.
(c) For the purposes of this section:
(1) "Nonprofit charitable organization" has the meaning defined in
Section 114440 of the Health and Safety Code.
(2) "Food bank" has the meaning defined in Section 114445 of the
Health and Safety Code.
1714.3. Civil liability for any injury to the person or property of
another proximately caused by the discharge of a firearm by a minor
under the age of 18 years shall be imputed to a parent or guardian
having custody and control of the minor for all purposes of civil
damages, and such parent or guardian shall be jointly and severally
liable with such minor for any damages resulting from such act, if
such parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor.
The liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or group of
persons collectively, shall incur liability under this section in any
amount exceeding thirty thousand dollars ($30,000) for injury to or
death of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding sixty thousand dollars
($60,000) for injury to or death of all persons as a result of any
one such occurrence.
1714.4. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the obligor's assets
transferred or hidden. The maximum liability imposed by this section
shall not exceed the entire child support obligation due. Any funds
or assets collected pursuant to this section shall be paid to the
child support obligee, and shall not reduce the amount of the unpaid
child support obligation. Upon the satisfaction of the unpaid child
support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, with actual
knowledge of the child support obligation, helping to hide or
transfer assets of the child support obligor.
(c) This section shall not apply to a financial institution unless
the financial institution has actual knowledge of the child support
obligation and, with that knowledge, knowingly assists the obligor to
escape, evade, or avoid paying the child support obligation.
However, a financial institution with knowledge of an asset transfer
has no duty to inquire into the rightfulness of the transaction, nor
shall it be deemed to have knowingly assisted an obligor to escape,
evade, or avoid paying the child support obligation if that
assistance is provided by an employee or agent of the financial
institution acting outside the terms and conditions of employment or
agency without the actual knowledge of the financial institution.
1714.41. (a) Any person or business entity that knowingly assists a
child support obligor who has an unpaid child support obligation to
escape, evade, or avoid paying court-ordered or court-approved child
support shall be liable for three times the value of the assistance
provided, such as the fair market value of the assets transferred or
hidden, or the amount of the wages or other compensation paid to the
child support obligor but not reported. The maximum liability imposed
by this section shall not exceed the entire child support obligation
due. Any funds or assets collected pursuant to this section shall be
paid to the child support obligee, and shall not reduce the amount
of the unpaid child support obligation. Upon the satisfaction of the
unpaid child support obligation, this section shall not apply.
(b) For purposes of this section, actions taken to knowingly
assist a child support obligor to escape, evade, or avoid paying
court-ordered or court-approved child support include, but are not
limited to, any of the following actions taken when the individual or
entity knew or should have known of the child support obligation:
(1) Hiring or employing the child support obligor as an employee
in a trade or business and failing to timely file a report of new
employees with the California New Employee Registry maintained by the
Employment Development Department.
(2) Engaging the child support obligor as a service provider and
failing to timely file a report with the Employment Development
Department as required by Section 1088.8 of the Unemployment
Insurance Code.
(3) When engaged in a trade or business, paying wages or other
forms of compensation for services rendered by a child support
obligor that are not reported to the Employment Development
Department as required, including, but not limited to, payment in
cash or via barter or trade.
1714.45. (a) In a product liability action, a manufacturer or
seller shall not be liable if both of the following apply:
(1) The product is inherently unsafe and the product is known to
be unsafe by the ordinary consumer who consumes the product with the
ordinary knowledge common to the community.
(2) The product is a common consumer product intended for personal
consumption, such as sugar, castor oil, alcohol, and butter, as
identified in comment i to Section 402A of the Restatement (Second)
of Torts.
(b) This section does not exempt the manufacture or sale of
tobacco products by tobacco manufacturers and their successors in
interest from product liability actions, but does exempt the sale or
distribution of tobacco products by any other person, including, but
not limited to, retailers or distributors.
(c) For purposes of this section, the term "product liability
action" means any action for injury or death caused by a product,
except that the term does not include an action based on a
manufacturing defect or breach of an express warranty.
(d) This section is intended to be declarative of and does not
alter or amend existing California law, including Cronin v. J.B.E.
Olson Corp. (1972), 8 Cal. 3d 121, and shall apply to all product
liability actions pending on, or commenced after, January 1, 1988.
(e) This section does not apply to, and never applied to, an
action brought by a public entity to recover the value of benefits
provided to individuals injured by a tobacco-related illness caused
by the tortious conduct of a tobacco company or its successor in
interest, including, but not limited to, an action brought pursuant
to Section 14124.71 of the Welfare and Institutions Code. In the
action brought by a public entity, the fact that the injured
individual's claim against the defendant may be barred by a prior
version of this section shall not be a defense. This subdivision does
not constitute a change in, but is declaratory of, existing law
relating to tobacco products.
(f) It is the intention of the Legislature in enacting the
amendments to subdivisions (a) and (b) of this section adopted at the
1997-98 Regular Session to declare that there exists no statutory
bar to tobacco-related personal injury, wrongful death, or other tort
claims against tobacco manufacturers and their successors in
interest by California smokers or others who have suffered or
incurred injuries, damages, or costs arising from the promotion,
marketing, sale, or consumption of tobacco products. It is also the
intention of the Legislature to clarify that those claims that were
or are brought shall be determined on their merits, without the
imposition of any claim of statutory bar or categorical defense.
(g) This section shall not be construed to grant immunity to a
tobacco industry research organization.
1714.5. (a) There shall be no liability on the part of one,
including the State of California, county, city and county, city or
any other political subdivision of the State of California, who owns
or maintains any building or premises which have been designated as a
shelter from destructive operations or attacks by enemies of the
United States by any disaster council or any public office, body, or
officer of this state or of the United States, or which have been
designated or are used as mass care centers, first aid stations,
temporary hospital annexes, or as other necessary facilities for
mitigating the effects of a natural, manmade, or war-caused
emergency, for any injuries arising out of the use thereof for such
purposes sustained by any person while in or upon said building or
premises as a result of the condition of said building or premises or
as a result of any act or omission, or in any way arising from the
designation of such premises as a shelter, or the designation or use
thereof as a mass care center, first aid station, temporary hospital
annex, or other necessary facility for emergency purposes, except a
willful act, of such owner or occupant or his or her servants, agents
or employees when such person has entered or gone upon or into said
building or premises for the purpose of seeking refuge, treatment,
care, or assistance therein during destructive operations or attacks
by enemies of the United States or during tests ordered by lawful
authority or during a natural or manmade emergency.
(b) Notwithstanding any other provision of law, no disaster
service worker who is performing disaster services during a state of
war emergency, a state of emergency, or a local emergency, as such
emergencies are defined in Section 8558 of the Government Code, shall
be liable for civil damages on account of personal injury to or
death of any person or damage to property resulting from any act or
omission while performing disaster services anywhere within any
jurisdiction covered by such emergency, except one that is willful.
(c) For purposes of this subdivision, a disaster service worker
shall be performing disaster services when acting within the scope of
the disaster service worker's responsibilities under the authority
of the governmental emergency organization.
(d) For purposes of this subdivision, "governmental emergency
organization" shall mean the emergency organization of any state,
city, city and county, county, district, or other local governmental
agency or public agency, which is authorized pursuant to the
California Emergency Services Act (Chapter 7 (commencing with Section
8550) of Division 1 of Title 2 of the Government Code).
(e) Nothing in this section shall be construed to alter any
existing legal duties or obligations. The amendments to this section
made by the act amending this section shall apply exclusively to any
legal action filed on or after the effective date of the act.
1714.6. The violation of any statute or ordinance shall not
establish negligence as a matter of law where the act or omission
involved was required in order to comply with an order or
proclamation of any military commander who is authorized to issue
such orders or proclamations; nor when the act or omission involved
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. No person shall be prosecuted for a violation of any
statute or ordinance when violation of such statute or ordinance is
required in order to comply with an order or proclamation of any
military commander who is authorized to issue such orders or
proclamations; nor shall any person be prosecuted for a violation of
any statute or ordinance when violation of such statute or ordinance
is required in order to comply with any regulation, directive, or
order of the Governor promulgated under the California Emergency
Services Act. The provisions of this section shall apply to such acts
or omissions whether occurring prior to or after the effective date
of this section.
1714.7. No person who is injured while getting on, or attempting to
get on, a moving locomotive or railroad car, without authority from
the owner or operator of the railroad, or who, having gotten on a
locomotive or railroad car while in motion without such authority, is
injured while so riding or getting off, shall recover any damages
from the owner or operator thereof for such injuries unless
proximately caused by an intentional act of such owner or operator
with knowledge that serious injury is the probable result of such
act, or with a wanton and reckless disregard of the probable result
of such act.
1714.8. (a) No health care provider shall be liable for
professional negligence or malpractice for any occurrence or result
solely on the basis that the occurrence or result was caused by the
natural course of a disease or condition, or was the natural or
expected result of reasonable treatment rendered for the disease or
condition. This section shall not be construed so as to limit
liability for the failure to inform of the risks of treatment or
failure to accept treatment, or for negligent diagnosis or treatment
or the negligent failure to diagnose or treat.
(b) As used in this section, "health care provider" means any
person licensed or certified pursuant to Division 2 (commencing with
Section 500) of the Business and Professions Code, or licensed
pursuant to the Osteopathic Initiative Act or the Chiropractic
Initiative Act, or certified pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code, and any
clinic, health dispensary, or health facility licensed pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code.
1714.9. (a) Notwithstanding statutory or decisional law to the
contrary, any person is responsible not only for the results of that
person's willful acts causing injury to a peace officer, firefighter,
or any emergency medical personnel employed by a public entity, but
also for any injury occasioned to that person by the want of ordinary
care or skill in the management of the person's property or person,
in any of the following situations:
(1) Where the conduct causing the injury occurs after the person
knows or should have known of the presence of the peace officer,
firefighter, or emergency medical personnel.
(2) Where the conduct causing injury violates a statute,
ordinance, or regulation, and the conduct causing injury was itself
not the event that precipitated either the response or presence of
the peace officer, firefighter, or emergency medical personnel.
(3) Where the conduct causing the injury was intended to injure
the peace officer, firefighter, or emergency medical personnel.
(4) Where the conduct causing the injury is arson as defined in
Section 451 of the Penal Code.
(b) This section does not preclude the reduction of an award of
damages because of the comparative fault of the peace officer,
firefighter, or emergency medical personnel in causing the injury.
(c) The employer of a firefighter, peace officer or emergency
medical personnel may be subrogated to the rights granted by this
section to the extent of the worker's compensation benefits, and
other liabilities of the employer, including all salary, wage,
pension, or other emolument paid to the employee or the employee's
dependents.
(d) The liability imposed by this section shall not apply to an
employer of a peace officer, firefighter, or emergency medical
personnel.
(e) This section is not intended to change or modify the common
law independent cause exception to the firefighter's rule as set
forth in Donohue v. San Francisco Housing Authority (1993) 16
Cal.App.4th 658.
1714.10. (a) No cause of action against an attorney for a civil
conspiracy with his or her client arising from any attempt to contest
or compromise a claim or dispute, and which is based upon the
attorney's representation of the client, shall be included in a
complaint or other pleading unless the court enters an order allowing
the pleading that includes the claim for civil conspiracy to be
filed after the court determines that the party seeking to file the
pleading has established that there is a reasonable probability that
the party will prevail in the action. The court may allow the filing
of a pleading claiming liability based upon such a civil conspiracy
following the filing of a verified petition therefor accompanied by
the proposed pleading and supporting affidavits stating the facts
upon which the liability is based. The court shall order service of
the petition upon the party against whom the action is proposed to be
filed and permit that party to submit opposing affidavits prior to
making its determination. The filing of the petition, proposed
pleading, and accompanying affidavits shall toll the running of any
applicable statute of limitations until the final determination of
the matter, which ruling, if favorable to the petitioning party,
shall permit the proposed pleading to be filed.
(b) Failure to obtain a court order where required by subdivision
(a) shall be a defense to any action for civil conspiracy filed in
violation thereof. The defense shall be raised by the attorney
charged with civil conspiracy upon that attorney's first appearance
by demurrer, motion to strike, or such other motion or application as
may be appropriate. Failure to timely raise the defense shall
constitute a waiver thereof.
(c) This section shall not apply to a cause of action against an
attorney for a civil conspiracy with his or her client, where (1) the
attorney has an independent legal duty to the plaintiff, or (2) the
attorney's acts go beyond the performance of a professional duty to
serve the client and involve a conspiracy to violate a legal duty in
furtherance of the attorney's financial gain.
(d) This section establishes a special proceeding of a civil
nature. Any order made under subdivision (a), (b), or (c) which
determines the rights of a petitioner or an attorney against whom a
pleading has been or is proposed to be filed, shall be appealable as
a final judgment in a civil action.
(e) Subdivision (d) does not constitute a change in, but is
declaratory of, the existing law.
1714.11. (a) Except for damage or injury proximately caused by a
grossly negligent act or omission or willful or wanton misconduct of
the donor, no public employee or public entity, including, but not
limited to, a fire department, a fire protection district, or the
Department of Forestry and Fire Protection, that donates fire
protection apparatus or equipment to a volunteer fire department,
volunteer fire protection district, or volunteer fire company is
liable for any damage or injury that results from the use of that
apparatus or equipment by the recipient fire department, fire
protection district, or fire company.
(b) (1) The immunity provided by this section only shall apply if
the donor of the fire protection apparatus or equipment discloses in
writing to the recipient fire department, fire protection district,
or fire company any known damage to, or deficiencies in, the
apparatus and equipment.
(2) A volunteer fire department, volunteer fire protection
district, or volunteer fire company that receives donated fire
protection apparatus or equipment shall inspect and repair the
apparatus and equipment prior to use for public safety purposes.
1714.43. (a) (1) Every retail seller and manufacturer doing
business in this state and having annual worldwide gross receipts
that exceed one hundred million dollars ($100,000,000) shall
disclose, as set forth in subdivision (c), its efforts to eradicate
slavery and human trafficking from its direct supply chain for
tangible goods offered for sale.
(2) For the purposes of this section, the following definitions
shall apply:
(A) "Doing business in this state" shall have the same meaning as
set forth in Section 23101 of the Revenue and Taxation Code.
(B) "Gross receipts" shall have the same meaning as set forth in
Section 25120 of the Revenue and Taxation Code.
(C) "Manufacturer" means a business entity with manufacturing as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(D) "Retail seller" means a business entity with retail trade as
its principal business activity code, as reported on the entity's tax
return filed under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The disclosure described in subdivision (a) shall be posted on
the retail seller's or manufacturer's Internet Web site with a
conspicuous and easily understood link to the required information
placed on the business' homepage. In the event the retail seller or
manufacturer does not have an Internet Web site, consumers shall be
provided the written disclosure within 30 days of receiving a written
request for the disclosure from a consumer.
(c) The disclosure described in subdivision (a) shall, at a
minimum, disclose to what extent, if any, that the retail seller or
manufacturer does each of the following:
(1) Engages in verification of product supply chains to evaluate
and address risks of human trafficking and slavery. The disclosure
shall specify if the verification was not conducted by a third party.
(2) Conducts audits of suppliers to evaluate supplier compliance
with company standards for trafficking and slavery in supply chains.
The disclosure shall specify if the verification was not an
independent, unannounced audit.
(3) Requires direct suppliers to certify that materials
incorporated into the product comply with the laws regarding slavery
and human trafficking of the country or countries in which they are
doing business.
(4) Maintains internal accountability standards and procedures for
employees or contractors failing to meet company standards regarding
slavery and trafficking.
(5) Provides company employees and management, who have direct
responsibility for supply chain management, training on human
trafficking and slavery, particularly with respect to mitigating
risks within the supply chains of products.
(d) The exclusive remedy for a violation of this section shall be
an action brought by the Attorney General for injunctive relief.
Nothing in this section shall limit remedies available for a
violation of any other state or federal law.
(e) The provisions of this section shall take effect on January 1,
2012.
1715. Other obligations are prescribed by Divisions I and II of
this Code.
1716. (a) It is unlawful for a person to solicit payment of money
by another by means of a written statement or invoice, or any writing
that reasonably could be considered a bill, invoice, or statement of
account due, but is in fact a solicitation for an order, unless the
solicitation conforms to subdivisions (b) to (f), inclusive.
(b) A solicitation described in subdivision (a) shall bear on its
face either the disclaimer prescribed by subparagraph (A) of
paragraph (2) of subsection (d) of Section 3001 of Title 39 of the
United States Code or the following notice:
"THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO
OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS
OFFER."
The statutory disclaimer or the alternative notice shall be
displayed in conspicuous boldface capital letters of a color
prominently contrasting with the background against which they
appear, including all other print on the face of the solicitation and
shall be at least as large, bold, and conspicuous as any other print
on the face of the solicitation but no smaller than 30-point type.
(c) The notice or disclaimer required by this section shall be
displayed conspicuously apart from other print on the page and
immediately below each portion of the solicitation that reasonably
could be construed to specify a monetary amount due and payable by
the recipient. The notice or disclaimer shall not be preceded,
followed, or surrounded by words, symbols, or other matter that
reduces its conspicuousness or that introduces, modifies, qualifies,
or explains the required text, such as "legal notice required by law."
(d) The notice or disclaimer may not, by folding or any other
device, be rendered unintelligible or less prominent than any other
information on the face of the solicitation.
(e) If a solicitation consists of more than one page or if any
page is designed to be separated into portions, such as by tearing
along a perforated line, the notice or disclaimer shall be displayed
in its entirety on the face of each page or portion of a page that
reasonably might be considered a bill, invoice, or statement of
account due as required by subdivisions (b) and (c).
(f) For the purposes of this section, "color" includes black and
"color prominently contrasting" excludes any color, or any intensity
of an otherwise included color, that does not permit legible
reproduction by ordinary office photocopying equipment used under
normal operating conditions, and that is not at least as vivid as any
other color on the face of the solicitation.
(g) Any person damaged by noncompliance with this section, in
addition to other remedies, is entitled to damages in an amount equal
to three times the sum solicited.
(h) Any person who violates this section shall be liable for a
civil penalty not to exceed ten thousand dollars ($10,000) 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 or by any district attorney, county counsel, or city
attorney in any court of competent jurisdiction. 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 State Treasurer. If brought by a
district attorney or county counsel, the entire amount of the penalty
collected shall be paid to the treasurer of the county in which the
judgment was entered. If brought by a city attorney or city
prosecutor, one-half of the penalty shall be paid to the treasurer of
the county and one-half to the city.
(i) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, by a fine not
exceeding two thousand five hundred dollars ($2,500), or by both
that fine and imprisonment.
1717. (a) In any action on a contract, where the contract
specifically provides that attorney's fees and costs, which are
incurred to enforce that contract, shall be awarded either to one of
the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or
she is the party specified in the contract or not, shall be entitled
to reasonable attorney's fees in addition to other costs.
Where a contract provides for attorney's fees, as set forth above,
that provision shall be construed as applying to the entire
contract, unless each party was represented by counsel in the
negotiation and execution of the contract, and the fact of that
representation is specified in the contract.
Reasonable attorney's fees shall be fixed by the court, and shall
be an element of the costs of suit.
Attorney's fees provided for by this section shall not be subject
to waiver by the parties to any contract which is entered into after
the effective date of this section. Any provision in any such
contract which provides for a waiver of attorney's fees is void.
(b) (1) The court, upon notice and motion by a party, shall
determine who is the party prevailing on the contract for purposes of
this section, whether or not the suit proceeds to final judgment.
Except as provided in paragraph (2), the party prevailing on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may also determine that there is no
party prevailing on the contract for purposes of this section.
(2) Where an action has been voluntarily dismissed or dismissed
pursuant to a settlement of the case, there shall be no prevailing
party for purposes of this section.
Where the defendant alleges in his or her answer that he or she
tendered to the plaintiff the full amount to which he or she was
entitled, and thereupon deposits in court for the plaintiff, the
amount so tendered, and the allegation is found to be true, then the
defendant is deemed to be a party prevailing on the contract within
the meaning of this section.
Where a deposit has been made pursuant to this section, the court
shall, on the application of any party to the action, order the
deposit to be invested in an insured, interest-bearing account.
Interest on the amount shall be allocated to the parties in the same
proportion as the original funds are allocated.
(c) In an action which seeks relief in addition to that based on a
contract, if the party prevailing on the contract has damages
awarded against it on causes of action not on the contract, the
amounts awarded to the party prevailing on the contract under this
section shall be deducted from any damages awarded in favor of the
party who did not prevail on the contract. If the amount awarded
under this section exceeds the amount of damages awarded the party
not prevailing on the contract, the net amount shall be awarded the
party prevailing on the contract and judgment may be entered in favor
of the party prevailing on the contract for that net amount.
1717.5. (a) Except as otherwise provided by law or where waived by
the parties to an agreement, in any action on a contract based on a
book account, as defined in Section 337a of the Code of Civil
Procedure, entered into on or after January 1, 1987, which does not
provide for attorney's fees and costs, as provided in Section 1717,
the party who is determined to be the party prevailing on the
contract shall be entitled to reasonable attorney's fees, as provided
below, in addition to other costs. The prevailing party on the
contract shall be the party who recovered a greater relief in the
action on the contract. The court may determine that there is no
party prevailing on the contract for purposes of this section.
Reasonable attorney's fees awarded pursuant to this section for
the prevailing party bringing the action on the book account shall be
fixed by the court in an amount that shall not exceed the lesser of:
(1) eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes; and
one thousand dollars ($1,000) for all other book accounts to which
this section applies; or (2) 25 percent of the principal obligation
owing under the contract.
For the party against whom the obligation on the book account was
asserted in the action subject to this section, if that party is
found to have no obligation owing on a book account, the court shall
award that prevailing party reasonable attorney's fees not to exceed
eight hundred dollars ($800) for book accounts based upon an
obligation owing by a natural person for goods, moneys, or services
which were primarily for personal, family, or household purposes, and
one thousand dollars ($1,000) for all other book accounts to which
this section applies. These attorney's fees shall be an element of
the costs of the suit.
If there is a written agreement between the parties signed by the
person to be charged, the fees provided by this section may not be
imposed unless that agreement contains a statement that the
prevailing party in any action between the parties is entitled to the
fees provided by this section.
(b) The attorney's fees allowed pursuant to this section shall be
the lesser of either the maximum amount allowed by this section, the
amount provided by any default attorney's fee schedule adopted by the
court applicable to the suit, or an amount as otherwise provided by
the court. Any claim for attorney's fees pursuant to this section in
excess of the amounts set forth in the default attorney's fee
schedule shall be reasonable attorney's fees, as proved by the party,
as actual and necessary for the claim that is subject to this
section.
(c) This section does not
