CHAPTER
22.5. Victims of Corporate Fraud Compensation Fund
2280.
The Victims of Corporate Fraud Compensation Fund is hereby established in the State Treasury. The fund shall be administered by the Secretary of State for the sole purpose of providing restitution to the victims of a corporate fraud. The Secretary of State shall adopt regulations in furtherance of the administration of this chapter. Notwithstanding Section 13340 of the Government Code, the money in the fund is continuously appropriated to the Secretary of State for the purposes authorized by this chapter. 2281.
As used in this chapter:(a) “Application” means a request for payment from the fund submitted to the Secretary of State pursuant to this chapter.
(b) “Claimant” means an aggrieved person who resides in the state at the time of the fraud and who submits an application pursuant to this chapter.
(c) “Complaint,” for the purpose of an application based on a criminal restitution order, means the facts of the underlying transaction or transactions upon which the criminal restitution order is based.
(d) “Corporation” means a domestic corporation as defined by Section 162 or 2509 or a foreign corporation that is qualified to transact business in California pursuant to Section 2105.
(e) “Court of competent jurisdiction” means a state or federal court situated in California.
(f) “Final judgment” means a judgment, arbitration award, or criminal restitution order for which appeals have been exhausted or for which the period for appeal has expired, enforcement of which is not barred by the order of any court or by any statutory provision, which has not been nullified or rendered void by any court order or statutory provision, and for which the claimant has not
otherwise been fully reimbursed. The following are examples of final judgments:
(1) A civil judgment that has been entered against a corporation for fraud, misrepresentation, or deceit, with the intent to defraud, and includes findings of facts and conclusions of law.
(2) If the matter was submitted to arbitration, a copy of the arbitration decision and any other documentation supporting the arbitration award. An arbitration award against a corporation for conduct constituting fraud, misrepresentation, or deceit, with the intent to defraud, that includes findings of fact and conclusions of law rendered in accordance with the rules established by the American Arbitration Association or another recognized arbitration body, and in accordance with Sections 1280 to 1294.2, inclusive,
of the Code of Civil Procedure where applicable, and where the arbitration award has been confirmed and reduced to judgment pursuant to Section 1287.4 of the Code of Civil Procedure.
(3) A criminal restitution order issued by a court of competent jurisdiction against a corporation for fraud, misrepresentation, or deceit, with the intent to defraud, pursuant to subdivision (f) of Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the United States Code. An application for payment from the fund that is based on a criminal restitution order shall comply with all of the requirements of this chapter.
(g) “Fund” means the Victims of Corporate Fraud Compensation Fund created by Section 2280.
2282.
(a) When an aggrieved person obtains a final judgment in a court of competent jurisdiction against a corporation based upon the corporation’s fraud, misrepresentation, or deceit, made with intent to defraud, the aggrieved person may, upon the judgment becoming final and after diligent collection efforts are made, file an application with the Secretary of State for payment from the fund, within the limitations specified in Section 2289, for the amount unpaid on the judgment that represents the awarded actual and direct loss, any awarded compensatory damages, and awarded costs to the claimant in the final judgment, excluding punitive damages. (b) The application shall
be delivered in person or by certified mail to the Secretary of State not later than 18 months after the judgment has become final.
(c) The application shall be made on a form prescribed by the Secretary of State and shall include each of the following:
(1) The name and address of the claimant.
(2) If the claimant is represented by an attorney for the application, the name, business address, and telephone number of the attorney. If the claimant is not represented by an attorney for the application, a telephone number where the claimant can be reached during regular business hours shall be included.
(3) The name and address of the corporation.
(4) The identification of the final judgment, the amount of the claim that remains unreimbursed from any source, and an explanation of the claim’s computation.
(5) A copy of a final judgment
and a copy of the civil complaint and any amendments thereto upon which the judgment finding fraud, misrepresentation, or deceit, made with the intent to defraud, was made shall be deemed to satisfy compliance with the requirements prescribed in this paragraph. The claimant may also provide any additional documentation that he or she believes may help the Secretary of State in evaluating the application, including, but not limited to, evidence submitted to the court in the underlying judgment or a detailed narrative statement of facts in explanation of the allegations of the complaint upon which the underlying judgment is based.
(6) A description of searches and inquiries conducted by or on behalf of the claimant with respect to the corporation’s assets liable to be sold or applied to satisfaction of the judgment. A court’s
determination or finding of the corporation’s insolvency or lack of assets to pay the claimant shall be deemed to satisfy the requirements prescribed in this paragraph.
(7) Each of the following representations by the claimant:
(A) That the claimant is not a spouse or an immediate family member of an employee, officer, director, managing agent, or other principal of the corporation nor a personal representative of the spouse or an immediate family member of an employee, officer, director, managing agent, or other principal of the corporation.
(B) That the claimant has complied with all of the requirements of this section.
(C) That the judgment underlying the
claim meets the requirements of subdivisions (a) and (b) of Section 2282, including all of the following:
(i) That the judgment was for fraud, misrepresentation, or deceit by the corporation, with the intent to defraud.
(ii) That the judgment is unpaid in part or in whole.
(iii) That the underlying judgment and debt have not been discharged in bankruptcy, or the underlying judgment is statutorily nondischargeable, or, in the case of a bankruptcy proceeding that is open at or after the time of the filing of the application, that the judgment and debt have been declared to be nondischargeable by the judge or stipulated as nondischargeable by the parties in the proceeding and that the claimant has been granted permission by the
bankruptcy court to proceed with collection or otherwise proceed with the claimant’s claims against the corporation.
(D) That the claimant does not have a pending claim and has not collected on the final judgment from any other restitution fund. If the claimant has a pending claim or has collected from another fund, a description of the nature of the pending claim and the recovery amounts from any restitution fund.
(d) (1) Except as provided in paragraphs (2), (3), and (4) the Secretary of State shall not condition an award of payment from the fund upon a claimant providing any additional information or documents other than those prescribed in subdivision (c).
(2) If the final judgment in
favor of the claimant was by default, stipulated, a consent judgment, or pursuant to Section 594 of the Code of Civil Procedure or if the action against the corporation was defended by a trustee in bankruptcy, the Secretary of State may request additional documents and information from the claimant to determine whether the claim is valid.
(3) If the final judgment does not expressly set forth the amount of damages that were awarded for actual loss and compensatory damages that are payable from the fund pursuant to Section 2289, the Secretary of State may ask the claimant to provide copies of documentation pertaining to
the amount of the actual and direct loss and the awarded compensatory damages or both of those findings. For purposes of this section, “sufficient proof of money damages” may include any of the following: copies of bank account statements showing or confirming particular transactions, copies of the front and back of checks made payable to the corporation that have been negotiated, credit card statements showing or confirming particular transactions, or similar documentation demonstrating financial loss directly resulting from the fraudulent acts by the corporation and the amount of compensatory damages awarded by the court.
(4) If there is no court determination or finding of the corporation’s insolvency or lack of assets to pay the claimant, the Secretary of State may request additional information and documentation
from the claimant to determine what assets, if any are available to satisfy the final judgment.
(e) The Secretary of State shall include with the application form a notice to the claimant of his or her obligation to protect the underlying judgment from discharge in bankruptcy, to be appended to the application.
(f) If a claimant is a spouse or an immediate family member of an employee, officer, director, managing agent, or other principal of the corporation, or is a personal representative of the spouse or an immediate family member of an employee, officer, director, managing agent, or other principal of the corporation, the claimant shall not be precluded for that reason alone from receiving an award where the claimant can otherwise meet the requirements of this section.
2282.1.
(a) The Secretary of State shall provide notice to the corporation that a claimant has submitted an application for payment from the fund and shall also provide within that notice, as prescribed by the Secretary of State, the method to contest the payment from the fund.(b) The notice shall be provided by certified mail addressed to the corporation’s last designated agent for service of process of record with the Secretary of State and notice shall be deemed complete five calendar days after the notice is mailed.
(c) If the corporation wishes to contest payment of an application by the Secretary
of State, the corporation shall mail or deliver a written response addressed to the Secretary of State within 30 calendar days of the notice of the application, and shall mail or deliver a copy of the response to the claimant. The written response of the corporation shall not be directed to issues and facts conclusively established by the underlying judgment. If the corporation fails to mail or deliver a timely response, the corporation shall have waived the corporation’s right to present objections to payment of the application, and shall not thereafter be entitled to notice of any action taken or proposed to be taken by the Secretary of State with respect to the application.
2282.2.
(a) The response by the corporation shall be by an officer or director and shall contain proof of service showing that a copy of the response was sent to the claimant, or if the claimant is represented by an attorney for purposes of the application, to the claimant’s attorney, at the address specified in the application for the claimant or the claimant’s attorney, respectively.(b) If the corporation is not represented by an attorney in objecting to payment of the application, the response shall contain the name, title, and address of the officer, director, managing agent, or other responsible person authorized to represent the corporation and the address at which the
corporation wishes to receive correspondence and notices relating to the application, and a telephone number at which the corporation’s representative can be reached during regular business hours. If the corporation is represented by an attorney in objecting to the application, the response shall contain the name, business address, and telephone number of the attorney.
2283.
(a) If the Secretary of State determines that the application, as submitted by the claimant, fails to comply with the requirements of Section 2282, the Secretary of State shall, within 21 calendar days after receipt of the application by a single claimant or within 40 calendar days after receipt of the application by multiple claimants, mail an itemized list of deficiencies to the claimant.(b) The time within which the Secretary of State is required to act under Section 2284 shall be measured from the date of receipt by the Secretary of State of a completed application. In the event of an irreconcilable dispute between the claimant and the Secretary of State on
the question of whether the application is complete, the claimant may immediately file the claim with the court pursuant to Section 2287.
(c) If the Secretary of State has mailed one or more itemized lists of deficiencies to a claimant, and, if after 30 calendar days the Secretary of State has not received a response to the latest list of deficiencies, the Secretary of State shall notify the claimant that, unless the claimant responds to the deficiencies within a specified period of time of not less than 15 calendar days, the application will be denied.
2284.
(a) The Secretary of State shall render a final written decision on the application within 90 calendar days after a completed application has been received unless the claimant agrees in writing to extend the time within which the Secretary of State may render a decision.(b) The Secretary of State may deny or grant the application or may enter into a compromise with the claimant to pay less in settlement than the full amount of the claim. If the claimant refuses to accept a settlement of the claim offered by the Secretary of State, the written decision of the Secretary of State shall be to deny the claim. Evidence of settlement offers and discussions between the
Secretary of State and the claimant shall not be competent evidence in judicial proceedings undertaken by the claimant pursuant to Section 2287.
(c) Upon issuance of a proposed decision to award payment or an offer to compromise, the claimant shall have 60 calendar days from the date of service of the proposed award or offer to compromise to accept the proposed award or offer to compromise. If the claimant fails to accept the proposed award or offer to compromise within the specified time, the application shall be deemed denied.
2285.
The Secretary of State shall give written notice, as prescribed by the Secretary of State, of a decision rendered with respect to the application to the claimant.2286.
The Secretary of State shall give notice, as prescribed by the Secretary of State, to the corporation that the Secretary of State has made a decision to award funds to the claimant and shall provide a copy of the decision to the corporation.2287.
(a) A claimant against whom the Secretary of State has rendered a decision denying an application may, within six months after the mailing of the notice of the denial, file a verified petition in superior court for an Order Directing Payment Out of the Victims of Corporate Fraud Compensation Fund based upon the grounds set forth in the application to the Secretary of State. If the underlying judgment is a California state court judgment, the petition shall be filed in the court in which the underlying judgment was entered. If the underlying judgment is not a California state court judgment or is a federal court judgment, the petition shall be filed in the superior court of any county within California that would have been a
proper venue if the underlying lawsuit had been filed in a California state court, or in the Superior Court of the County of Sacramento.(b) A copy of the petition shall be served upon the Secretary of State by the claimant. A certificate or affidavit of service shall be filed by the claimant with the court. Service on the Secretary of State may be made by mail addressed to the Secretary of State’s office.
(c) The Secretary of State shall have 30 calendar days after being served with the petition in which to file a written response. The court shall thereafter set the matter for hearing upon the request of the claimant. The court shall grant a request of the Secretary of State for one continuance of as much as 30 calendar days and may, upon a showing of good cause by any party,
continue the hearing as the court deems appropriate.
(d) The claimant shall have the burden of proving compliance with the requirements of Section 2282 by competent evidence at an evidentiary hearing. The claimant shall be entitled to a de novo review of the merits of the application as contained in the administrative record.
(e) At any time during the court proceedings, the petition may be compromised or settled by the Secretary of State and the court shall, upon joint petition of the claimant and the Secretary of State, issue an order directing payment out of the fund.
2288.
(a) Whenever the court proceeds upon a petition under Section 2287, it shall order payment out of the fund only upon a determination that the aggrieved party has a valid cause of action within the purview of Section 2282, and has complied with Section 2287.(b) (1) The Secretary of State may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review, including examination of witnesses and the right to relitigate any issues that are material and relevant in the proceeding against the fund. The claimant’s judgment shall create a rebuttable presumption of the fraud, misrepresentation, or
deceit by the corporation, which presumption shall affect the burden of producing evidence.
(2) If the civil judgment, arbitration award, or criminal restitution order in the underlying action on which the final judgment in favor of the petitioner was by default, stipulation, consent or pursuant to Section 594 of the Code of Civil Procedure, or if the action against the corporation was defended by a trustee in bankruptcy, the petitioner shall have the burden of proving that the cause of action against the corporation was for fraud,
misrepresentation, or deceit.
(c) The Secretary of State may move the court at any time to dismiss the petition when it appears there are no triable issues and the petition is without merit. The motion may be supported by affidavit of any person or persons having knowledge of the facts, and may be made on the basis that the petition, and the judgment referred to therein, does not form the basis for a meritorious recovery claim within the purview of Section 2282; provided, however, the Secretary of State shall give written notice at least 10 calendar days before hearing on the motion to the claimant.
2289.
(a) Notwithstanding any other provision of this chapter and regardless of the number of persons aggrieved in an instance of corporate fraud, or misrepresentation or deceit resulting in a judgment meeting the requirements of Section 2282, or the number of judgments against a corporation, the liability of the fund shall not exceed fifty thousand dollars ($50,000) for any one claimant per single judgment finding fraud, misrepresentation, or deceit, made with the intent to defraud.(b) When multiple corporations are involved in the same event or series of events that are the basis of the claimant’s final judgment and the conduct of two or more of the corporations
results in a judgment meeting the requirements of Section 2282, the claimant may seek recovery from the fund based on the judgment against any one of the corporations, subject to the limitations of subdivision (a).
(c) When multiple claimants are involved in a corporate fraud, or in misrepresentation or deceit by a corporation, resulting in a judgment meeting the requirements of Section 2282, each claimant may seek recovery from the fund individually, subject to the limitations of subdivision (a).
(d) Claimants who are spouses, registered domestic partners, or persons other than natural persons, that have obtained an eligible final judgment shall be considered one claimant.
2290.
If, at any time, the money deposited in the fund is insufficient to satisfy any duly authorized award or offer of settlement, the Secretary of State shall, when sufficient money has been deposited in the fund, satisfy the unpaid awards or offer of settlement, in the order that the awards or offers of settlement were originally filed, plus accumulated interest at the rate set by the Federal Reserve Bank of San Francisco on advances made to member banks under Sections 13 and 13a of the Federal Reserve Act, at the time of the award or settlement offer, not to exceed 2 percent per year.2291.
Any sums received by the Secretary of State pursuant to any provisions of this chapter shall be deposited in the State Treasury and credited to the fund.2292.
It shall be unlawful for any person or the agent of any person to file with the Secretary of State any notice, statement, or other document required under the provisions of this chapter that is false or untrue or contains any willful, material misstatement of fact. That conduct shall constitute a public offense punishable by imprisonment in a county jail for a period of not more than one year or a fine of not more than one thousand dollars ($1,000), or both.2293.
When the Secretary of State has paid from the fund any sum to the claimant, the Secretary of State shall be subrogated to all of the rights of the claimant and the claimant shall assign all of his or her right, title, and interest in the judgment to the Secretary of State and any amount and interest so recovered by the Secretary of State on the judgment shall be deposited in the fund.2293.1.
If the Secretary of State pays from the fund any amount in settlement of a claim or toward satisfaction of a final judgment against a corporation, the corporation shall be required to pay to the fund the amount paid plus interest at the prevailing legal rate applicable to a judgment rendered in any court of this state, within 30 calendar days of the date that the Secretary of State provided notice of the payment of the award or compromise. If the corporation fails to make the required payment to the fund within the required time, the corporation shall be suspended until the payment is made. A discharge in bankruptcy shall not relieve a corporation from the penalties and disabilities provided in this chapter.
2294.
The Secretary of State shall not make any award to a claimant from the fund if the claimant has received payment from any other restitution funds or for the portions of the judgment that the claimant has collected from the corporation or any other defendant in the underlying judgment.2295.
The failure of an aggrieved person to comply with all of the provisions of this chapter shall constitute a waiver of any rights hereunder.2296.
This chapter shall apply to applications submitted to the Secretary of State on or after January 1, 2013.