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Legislative Intent Service, Inc. News & Notes

Some bill research does not include the Governor's file because at the time we researched the bill, the sitting Governor had not released his chaptered bill file. If the Governor's file is not included with this particular research, please contact our office (1-530-666-1917 or quote@legintent.com) and we will be happy to provide this file at no charge if it is available. Please Note: Governor files did not exist prior to 1943.

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LIS NEWS AND NOTES

New California Laws:  Our recently published Compendium of 2014 Notable California Legislation is available at our website.  Five of those bills that will soon become effective on January 1st are discussed below:

  • AB 1710:  There were a number of privacy-focused bills that were enacted in 2014. One of these bills was AB 1710 which was introduced by A/M Roger Dickinson of Sacramento and A/M Robert Wieckowski of San Jose to amend Civil Code statutes relating to personal information privacy.  They introduced this bill after recent mega data breaches affecting specified retailers.  Following these mega data breaches, the Assembly Banking and Finance Committee and the Assembly Judiciary Committee held an oversight hearing to discuss the current process for data breaches and how California can improve this process.  AB 1710 was drafted to address the issues raised at this hearing and reflects the areas of law that need clarification. The recent examples of mega data breaches emphasized the importance of disclosure and accountability.  All too often, data breaches happen and consumers receive a notice in the mail from a financial institution stating their personal information may have been breached.  The consumer is not made aware where the personal information was compromised and might interpret the letter to believe the breach occurred at the financial institution.  Under existing law, financial institutions are considered the owners of personal information and therefore must provide the notification, although the breach most often did not occur at a bank or credit union. AB 1710 is intended to provide clarity to consumers because it will require the maintainers of personal information, which could be a retailer, to disclose to a consumer that a breach occurred and their personal information may have been breached.  This allows a consumer to:  (1) be proactive by contacting their financial institution and/or credit reporting agency; and (2) have the option to not shop at a retail establishment that may not maintain personal information in a safe and secure manner. The bill was supported by the ACLU, the Consumer Attorneys of CA, the Consumer Federation of CA, Consumer Watchdog, and Privacy Rights Clearinghouse. 
  • AB 2136:  This bill was sponsored by the CA Association of Realtors to provide that an electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including a text message or instant message, is insufficient to constitute a contract to convey real property, in the absence of a written confirmation sufficient to indicate that a contract has been made; ephemeral communications include text messages and instant messages. Assembly member Tom Daily of Santa Ana, Anaheim and Orange carried this bill because current law pertaining to the retention of documents is out-of-date and thus problematic for real estate brokers. Short-lived communications such as texts, tweets, etc. are not designed or formatted for long time retention. Current law fails to reflect modern technology and does not include real estate conversations or transactions taking place via social media. Absent an updating of the law, real estate brokers will be required to preserve printouts of entire conversations via social media, as official records.  Although cases involving electronically delivered contract terms have been challenged in the courts beginning in the 1990s, statutory law now makes clear that a contract cannot be denied enforcement solely because it is in electronic form or signed electronically. In 1998, California updated the Civil Code to ensure that a contract that is valid in all other respects is not invalid for lack of a writing, provided there is sufficient evidence to indicate that a contract has been made by telephone, exchange of electronic messages, or otherwise. However, text messages, social media postings such as "tweets," and instant messages may be considered writings or documents under the law, but arguably function more like an oral conversation.  These "ephemeral" communications are often casual, rarely contain a signature, are typically not stored in a permanent format, and invite a back and forth exchanges between participants much like a face-to-face or telephone conversation. Accordingly, these communications are problematic for real estate brokers who are required under existing law to retain documents in connection with any real estate transaction for three years after the close of the transaction.  This includes letters, emails, faxes, checks, and other documents that are arguably permanent and easy to retrieve, store, or access. But "Ephemeral" electronic communications appear to take place in a manner and forums not intended for permanent access or filing. Assembly member Daly argued that because "current law fails to reflect current technology, real estate agents will be required to print out and retain hard copies of entire conversations taking place over Facebook, Twitter, etc."  Thus, AB 2136’s provisions would conform to the intent behind the statute of frauds which seeks to protect individuals and their property interests from fraud by requiring certain formalities in real estate contracts.
  • AB 2751:  A/M Roger Hernandez, author of this measure, had carried in 2013 AB 263, a landmark bill to protect immigrant workers against unlawful retaliation.  AB 263 of 2013 prohibited retaliation against an employee based on unfair immigration-related practices, as defined, prohibited an employer from discriminating, retaliating, or taking adverse action against an employee or applicant who has engaged in prescribed protected conduct relating to the enforcement of the employee's or applicant's rights, provided up to a $10,000 penalty for violations thereof, and prescribed business license suspensions for first, second, third, and subsequent violations. Now, AB 2751 would amend the 2013 law to also include the following:  First, protection against threats to file or the filing of a false report or complaint with any state or federal agency.  Second, at the request of the California Chamber of Commerce, AB 2751 would clarify the language in Labor Code § 1024.6 to clarify the meaning of an employee's ability to "update his or her personal information" to be based on a lawful change of name, social security number, or federal employment authorization document.  Third, at the request of the California Labor Federation, the 2014 bill would clarify that the $10,000 civil penalty added last year to Labor Code § 98.6 for retaliation is payable to the aggrieved worker.  And, Fourth, AB 2751 makes a number of clarifying and streamlining changes to the law that were identified by Legislative Counsel.  AB 2751 was supported by the CA Chamber of Commerce, the CA Labor Federation, the CA Retailers Association, and the CA Rural Legal Assistance Foundation. 
  • SB 1010:  This bill, introduced by Senator Holly Mitchel of L.A., reduces the penalty for possession for sale of cocaine base to be the same as that for powder cocaine; and revises the guidelines for probation eligibility for both the possession for sale of powder cocaine and cocaine base. The California Department of Corrections and Rehabilitation has produced in 2013 data on the number of inmates from fiscal year 2005-06 through 2009-10 imprisoned for possession for sale of powder cocaine and those imprisoned for possession for sale of cocaine base.  The data was disaggregated by ethnicity and sex of the inmates. African Americans were imprisoned for possession of cocaine base for sale at a rate 43.25 times that for Caucasians.  African Americans were imprisoned for possession of cocaine hydrochloride for sale at a rate 2.5 times that for Caucasians.  African Americans were imprisoned for possession of cocaine base for sale at a rate 4.3 times that for Latinos.  Latinos were imprisoned for possession of cocaine hydrochloride for sale at a rate 1.6 times that for African Americans. As you will see in the Compendium, this bill had 11 sponsors – this is a little out of the norm. The Senate Appropriations Committee indicated that there was potential future significant cost savings in the low millions of dollars (General Fund) to the Department of Corrections and Rehabilitation assuming shorter prison sentences and/or fewer prison commitments due to expanded probation eligibility provisions for about 150 inmates committed to state prison annually.  And there was additional potential future significant cost savings in the millions of dollars to local agencies for reduced county jail terms for several hundred offenders under the reduced sentencing triad and expanded probation eligibility provisions, offset to a degree by increased costs for a larger felony probation population. The Department of Justice conviction data indicates on average over 750 convictions for possession for sale of cocaine base since 2012.
  • AB 1649:  The Penal Code relating to computer crimes was amended to provide that the crimes and penalties for unauthorized access of or damage to a computer, computer system or data shall apply to government and public safety infrastructure computers, computer systems and data; and to update and augment relevant statutory terms.  A/M Marie Waldron of Escondido carried this bill to provide additional protection to government computer systems. Cyber criminals often target government computer systems, resulting in tampering, interferences, or damages.  Numerous incidents have occurred that have compromised the privacy, safety, and personal information of many individuals.  For example in 2013, a caller to a San Diego emergency room threatened the dispatcher that he would paralyze the hospital's phone service if she didn't pay him the amount demanded.  Shortly after, the emergency room's phone lines went silent for nearly 48 hours, affecting the communication services.  Recently, another case arose when a California State University Sacramento employee website was breached, where Social Security and Driver's License numbers of 1,800 employees could have been accessed. AB 1649 will separately define computer crimes involving government systems such as websites and phone lines that are utilized by hospitals, schools, cities, and many other organizations.  Separately defining such crimes against government entities will allow us to track and document the extent of such crimes, which appear to be increasing. AB 1649 also updates definitions and terminology relevant to computer crimes.  The law is trying to reflect the rapid changes in technology.  Otherwise, outdated or incomplete definitions in computer crime statutes could allow computer crime perpetrators to escape prosecution and conviction.  Further, jurors could be confused if definitions and terms are not accurate and complete.

 

2015 Bills Coming Up!  Last week, the California 2015-2016 Regular Legislative Session convened for an organizational session and swearing-in of new state legislators.  So far, 58 assembly bills and 42 senate bills have been introduced.  Below are descriptions of four of these early bills:

  • AB 11:  (A/M Lorena Gonzalez) The Healthy Workplaces, Healthy Families Act of 2014 provides, among other things, that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked. Existing law provides that an employee under the act does not include a provider of in-home support services, as described.  This bill would revise the definition of an employee under the Healthy Workplaces, Healthy Families Act of 2014 to, as of July 1, 2016, include providers of in-home support services, as described.
  • AB 54:  (A/M Kristin Olsen) This bill would, when a plaintiff brings a claim against a place of public accommodation alleging a violation of a construction-related accessibility standard within 3 years of a change in that standard, allow a plaintiff to collect statutory damages only if the plaintiff also provides the owner, agent, or other party responsible for the place in violation with a written notice or demand letter at least 60 days prior to filing any action and the violation is not cured. AB 54 would require the written notice or demand letter to contain specified information.
  • SB 3:  (Sen. Mark Leno) This bill would increase the minimum wage, on and after January 1, 2016, to not less than $11 per hour, on and after July 1, 2017, to not less than $13 per hour. The bill would require the annual automatic adjustment of the minimum wage, commencing January 1, 2019, to maintain employee purchasing power diminished by the rate of inflation during the previous year.  The adjustment would be calculated using the California Consumer Price Index, as specified. SB 3 would prohibit the Industrial Welfare Commission (IWC) from adjusting the minimum wage downward and from adjusting the minimum wage if the average percentage of inflation for the previous year was negative. SB 3 would require the IWC to publicize the automatically adjusted minimum wage.
  • SB 41:  (Sen. Kevin De León) This bill would authorize the Governor to sign agreements required by the United States Olympic Committee as part of the bid process for the City of Los Angeles or the City and County of San Francisco to become the United States applicant city and candidate city for the 2024 Olympic Games and Paralympic Games.  SB 41 would make legislative findings and declarations that, among other things, the endorsing municipality, as defined, has developed a self-sufficient bid for financing the games. This bill would also authorize the Governor to enter into an agreement for the state to be jointly liable, not to exceed a specified amount, with the Organizing Committee for the Olympic Games (OCOG), as specified, for obligations of the OCOG, and for any financial deficit relating to the games, as provided.

 

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