California Assembly Bill AB2765 Amended / Bill

 BILL NUMBER: AB 2765AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 5, 2010 INTRODUCED BY Committee on Judiciary (Feuer (Chair), Brownley, Evans, Jones, Lieu, and Monning) FEBRUARY 25, 2010 An act to amend Section  1281.96   338  of the Code of Civil Procedure, relating to  arbitration   civil actions  . LEGISLATIVE COUNSEL'S DIGEST AB 2765, as amended, Committee on Judiciary.  Consumer arbitration cases: disclosures.   Civil actions: statutes of limitation: theft.   Existing law provides that a civil action, in the case of a theft, shall be commenced within 3 years. Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, his or her agent, or a law enforcement agency.   This bill would authorize a civil action against a museum, gallery, auctioneer, or art dealer for the recovery of an article of historical, interpretive, scientific, cultural, or artistic significance to be commenced within 6 years of the actual discovery by the aggrieved party of the whereabouts of the article and of the facts constituting the cause of action.   This bill contains Legislature's findings and declarations in support of a finding that this bill is in agreement and conformity with a specified court decision.   Existing law regulates arbitration conducted pursuant to an arbitration agreement, as specified. Existing law requires a private arbitration company involved in consumer arbitration cases to make certain information regarding those cases available to the public, as specified. This bill would extend these requirements to any arbitrator involved in consumer arbitration cases.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   (a) The Legislature finds and declares the following:   (1) California's interest in determining the rightful ownership of personal property of historical, interpretive, scientific, cultural, and artistic significance is a matter of traditional state competence, responsibility, and concern.   (2) Because objects of historical, interpretive, scientific, cultural, and artistic significance often circulate in an underground economy for many years before surfacing in museums or galleries, existing statutes of limitation, which are solely the creatures of the legislature, often present an inequitable procedural obstacle to recovery of these objects by their rightful owner.   (3) Decisions from California's intermediate appellate courts have reached differing conclusions as to whether the statute of limitation based upon the "discovery of the whereabouts of the article by the aggrieved party" rule in subdivision (c) of Section 338 of the Code of Civil Procedure was intended to apply to property stolen prior to 1982, when the express discovery rule was enacted. In Naftzger v. American Numismatic Society (1996) 42 Cal.App.4th 421, the court held that the discovery rule applies to actions to recover property stolen prior to 1982 because there was a discovery rule implicit in the prior version of that statute.   (b) The Legislature finds and declares that the court's decision in Naftzger v. American Numismatic Society properly construed the Legislature's intent, as to the applicability of the discovery rule for thefts occurring before 1982, and the Legislature hereby abrogates any contrary holding.   SEC. 2.   Section 338 of the   Code of Civil Procedure   is amended to read:  338. Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture. (b) An action for trespass upon or injury to real property. (c)  (1)    An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property.  The   (2)     The  cause of action in the case of theft, as defined in Section 484 of the Penal Code, of any article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, his or her agent, or the law enforcement agency that originally investigated the theft.  (3) (A) Notwithstanding paragraphs (1) and (2), an action against a museum, gallery, auctioneer, or dealer for specific recovery of an article of historical, interpretive, scientific, cultural, or artistic significance shall be commenced within six years of the actual discovery by the aggrieved party of the whereabouts of the article and of the facts constituting the cause of action.   (B) The provisions of this paragraph shall apply to property taken, by theft, prior to 1982 regardless of whether or not an action would have been barred by an applicable statute of limitation under any other provision of law in effect prior to 1982.   (C) For purposes of this paragraph:   (i) "Actual discovery" means that the party bringing the action has express knowledge of the identity and the whereabouts of the person or entity that possesses the article of historical, interpretive, scientific, cultural, or artistic significance. Notwithstanding Section 19 of the Civil Code, "actual discovery" does not include any constructive knowledge imputed by law.   (ii) "Auctioneer" means any individual who is engaged in, or who by advertising or otherwise holds himself or herself out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.   (iii) "Dealer" means a person who holds a valid seller's permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art or antiquities.   (iv) "Museum or gallery" shall include any public or private organization or foundation operating as a museum or gallery.   (4) Section 361 shall not apply to an action brought pursuant to paragraph (2) or (3).   (5) The provisions of this paragraph shall apply to any pending matters, and any causes of action previously dismissed because of an applicable statute of limitations shall be revived, without prejudice, and determined in accordance with the provisions of this paragraph.  (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. (e) An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or his or her agent, of the facts constituting the cause of action upon the bond. (f) (1) An action against a notary public on his or her bond or in his or her official capacity except that any cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or his or her agent, of the facts constituting the cause of action. (2) Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or his or her agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later. (3) Notwithstanding paragraph (1), an action against a notary public on his or her bond or in his or her official capacity shall be commenced within six years. (g) An action for slander of title to real property. (h) An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action. (i) An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction. (j) An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution. (k) An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction. (l) An action commenced under Section 1603.1, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action. (m) An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis. (n) An action commencing under Section 51.7 of the Civil Code.  SECTION 1.   Section 1281.96 of the Code of Civil Procedure is amended to read: 1281.96. (a) Except as provided in paragraph (2) of subdivision (b), any arbitrator or private arbitration company that administers or is otherwise involved in, a consumer arbitration, shall collect, publish at least quarterly, and make available to the public in a computer-searchable format, which shall be accessible at the Internet Web site of the private arbitration company, if any, and on paper upon request, all of the following information regarding each consumer arbitration within the preceding five years: (1) The name of the nonconsumer party, if the nonconsumer party is a corporation or other business entity. (2) The type of dispute involved, including goods, banking, insurance, health care, employment, and, if it involves employment, the amount of the employee's annual wage divided into the following ranges: less than one hundred thousand dollars ($100,000), one hundred thousand dollars ($100,000) to two hundred fifty thousand dollars ($250,000), inclusive, and over two hundred fifty thousand dollars ($250,000). (3) Whether the consumer or nonconsumer party was the prevailing party. (4) On how many occasions, if any, the nonconsumer party has previously been a party in an arbitration or mediation administered by the private arbitration company. (5) Whether the consumer party was represented by an attorney. (6) The date the private arbitration company received the demand for arbitration, the date the arbitrator was appointed, and the date of disposition by the arbitrator or private arbitration company. (7) The type of disposition of the dispute, if known, including withdrawal, abandonment, settlement, award after hearing, award without hearing, default, or dismissal without hearing. (8) The amount of the claim, the amount of the award, and any other relief granted, if any. (9) The name of the arbitrator, his or her total fee for the case, and the percentage of the arbitrator's fee allocated to each party. (b) (1) If the information required by subdivision (a) is provided by the private arbitration company in a computer-searchable format at the company's Internet Web site and may be downloaded without any fee, the company may charge the actual cost of copying to any person who requests the information on paper. If the information required by subdivision (a) is not accessible by the Internet, the company shall provide that information without charge to any person who requests the information on paper. (2) Notwithstanding paragraph (1), a private arbitration company that receives funding pursuant to Chapter 8 (commencing with Section 465) of Division 1 of the Business and Professions Code, and that administers or conducts fewer than 50 consumer arbitrations per year may collect and publish the information required by subdivision (a) semiannually, provide the information only on paper, and charge the actual cost of copying. (c) This section shall apply to any consumer arbitration commenced on or after January 1, 2003. (d) No private arbitration company shall have any liability for collecting, publishing, or distributing the information required by this section.