Today's Law As Amended

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AB-1570 Collectibles: sale of autographed memorabilia.(2015-2016)



SECTION 1.

 The heading of Title 1.1A (commencing with Section 1739.7) of Part 4 of Division 3 of the Civil Code is amended to read:

TITLE 1.1A. AUTOGRAPHED MEMORABILIA

SEC. 2.

 Section 1739.7 of the Civil Code is amended to read:

1739.7.
 (a) As used in this section:
(1) “Autographed collectible” means an item  “Autographed” means  bearing the actual  signature of a particular person that is sold or offered for sale for fifty dollars ($50) or more, excluding sales tax and shipping fees, when the dealer offers the signed item at a higher price than the dealer would charge for a comparable item without the signature. personality signed by that individual’s own hand. 
(2) For purposes of this section, an autographed collectible shall be limited to the following items:
(A) (2)  Sports items, including, but not limited to, a photograph, ticket, plaque, sports program, trading card, item of sports equipment or clothing, or other sports memorabilia. “Collectible” means an autographed item sold or offered for sale in or from this state by a dealer to a consumer for five dollars ($5) or more. 
(B) Entertainment media items related to music, television, and films, including, but not limited to, a picture, photo, record, compact disc, digital video disc, ticket, program, playbill, clothing, hat, poster, toy, plaque, trading card, musical instrument, or other entertainment memorabilia.
(3) For purposes of this section, and notwithstanding paragraph (2), an autographed collectible does not include the following items:
(A) Works of fine art, as defined by paragraph (1) of subdivision (d) of Section 982 that are originals or numbered multiples, and signed by the artist or maker.
(B) Furniture and decorative objects, including works of pottery, jewelry, and design that are signed by the artist or maker.
(C) Signed books, manuscripts, and correspondence, as well as ephemera not related to sports or entertainment media.
(D) Signed numismatic items or bullion.
(4) (3)  “Consumer” means any natural person who purchases an autographed  a  collectible from a dealer for personal, family, or household purposes. “Consumer” also includes a prospective purchaser meeting these criteria.
(5) (4)  (A) “Dealer” means a person who is principally  in the business of selling or offering for sale autographed collectibles  collectibles in or from this state,  exclusively or nonexclusively, and sells three or more autographed collectibles in a period of 12 months.  or a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to collectibles, or to whom that knowledge or skill may be attributed by his or her employment of an agent or other intermediary that by his or her occupation holds himself or herself out as having that knowledge or skill.  “Dealer” includes an auctioneer or auction company that sells autographed  who sells  collectibles at a public auction.  auction, and also includes persons who are consignors or representatives or agents of auctioneers.  “Dealer” includes a person engaged in a mail-order, telephone-order,  mail order, telephone order,  online, or cable  television business for the sale of autographed  collectibles.
(B) “Dealer” does not include any of the following:
(i) A pawnbroker licensed pursuant to Chapter 3 (commencing with Section 21300) of Division 8 of the Financial Code, if the autographed  collectible was acquired through a foreclosure on a collateral loan, provided that the pawnbroker does not hold himself or herself out as having knowledge or skill peculiar to autographed  collectibles.
(ii) The person personality  who autographed signs  the collectible. memorabilia. 
(iii) A provider or operator of an online marketplace, provided that the online marketplace provider or operator is not principally in the business of selling, or offering for sale, collectibles, in or from the state, exclusively or nonexclusively, or does not hold itself out as having knowledge or skill peculiar to collectibles.
(5) “Description” means any of the following:
(A) Any representation in writing, including, but not limited to, a representation in an advertisement, brochure, catalog, flyer, invoice, sign, Internet Web page, email, or other commercial or promotional material.
(B) Any oral representation.
(C) Any representation included in a radio or television broadcast or online communication to the public in or from this state.
(6) “Limited edition” means any autographed  collectible that meets all of the following requirements:
(A) A company has produced a specific quantity of an autographed  a  collectible and placed it on the open market.
(B) The producer of the autographed  collectible has posted a notice, at its primary place of business, that it will provide any consumer, upon request, with a copy of a notice that states the exact number of an autographed  a  collectible produced in that series of limited editions.
(C) The producer makes available, upon request of a consumer, evidence that the electronic encoding, films, molds, or plates used to create the autographed  collectible have been destroyed after the specified number of autographed  collectibles have been produced.
(D) The sequence number of the autographed  collectible and the number of the total quantity produced in the limited edition are printed on the autographed  collectible.
(7) “Mint condition” means any collectible sold on the open market or through a private transaction that meets all of the following requirements:
(A) The item has never been circulated, used, or worn.
(B) The item exhibits little or no sign of aging or degradation caused by oxidation or exposure to sunlight as a result of its display.
(C) The item is otherwise free from creases, blemishes, or marks.
(8) “Promoter” means a person who arranges, holds, organizes, or presents a trade show featuring collectibles, autograph signings, or both.
(7) (9)  “Person” means any natural person, partnership, corporation, limited liability company, company, trust, association, or other entity, however organized.
(8) “Representation” means any oral or written representation, including, but not limited to, a representation in an advertisement, brochure, catalog, flyer, invoice, sign, radio or television broadcast, online communication, Internet Web page, email, or other commercial or promotional material.
(9) “Auctioneer” means an auctioneer as defined in subdivision (d) of Section 1812.601, or a representative or agent of an auctioneer.
(10) “Auction company” means an auction company as defined in subdivision (c) of Section 1812.601, or a representative or agent of an auction company.
(b) A dealer who, Whenever a dealer,  in selling or offering to sell to a consumer an autographed collectible, makes a representation to a consumer that the signature on the autographed collectible is the authentic signature of a particular person in that person’s own hand, shall furnish an express warranty  a collectible in or from this state, provides a description of that collectible as being autographed, the dealer shall furnish a certificate of authenticity  to the consumer at the time of sale. The dealer shall  certificate of authenticity shall be in writing, shall be signed by the dealer or his or her authorized agent, and shall specify the date of sale. The certificate of authenticity shall be in at least 10-point boldface type and shall contain the dealer’s true legal name and street address. The dealer shall  retain a copy of the express warranty  certificate of authenticity  for not less than seven years. The express warranty, which may be included in the bill of sale or invoice, shall meet Each certificate of authenticity shall do  all of the following criteria: following: 
(1) Is written in at least 10-point type.
(2) Is signed by the dealer or his or her authorized agent, and contains the dealer’s true legal name, business street address, and the last four digits of the dealer’s seller’s permit account number from the California Department of Tax and Fee Administration, if applicable.
(3) Specifies the date of sale and the purchase price.
(4) (1)  Describes Describe  the autographed  collectible and specifies specify  the name of the person personality  who autographed it.
(2) Either specify the purchase price and date of sale or be accompanied by a separate invoice setting forth that information.
(5) (3)  Expressly warrants the autographed collectible as authentic, and that the warranty is  Contain an express warranty, which shall be  conclusively presumed to be part of the bargain. The  bargain, of the authenticity of the collectible. This  warranty shall not be negated or limited by reason of the lack of words such as “warranty” or “guarantee” or because the dealer does not have a specific intent or authorization to make the warranty or because any statement relevant to the autographed  collectible is or purports to be, or is capable of being, merely the dealer’s opinion.
(6) (4)  If  Specify whether  the autographed  collectible is offered as one of a limited edition, specifies  edition and, if so, specify  (A) how the autographed  collectible and edition are numbered and (B) the size of the edition and the size of any prior or anticipated future edition, if known by the dealer.  known.  If the size of the edition and the size of any prior or anticipated future edition is not known, the warranty certificate  shall contain an explicit statement to that effect.
(7) (5)  Indicates Indicate  whether the dealer is surety bonded or is otherwise insured to protect the consumer against errors and omissions of the dealer and, if bonded or insured, provides provide  proof thereof.
(6) Indicate the last four digits of the dealer’s resale certificate number from the State Board of Equalization.
(8) (7)  Indicates if the autographed collectible  Indicate whether the item  was autographed in the presence of the dealer, and any proof thereof. Specify  dealer and specify  the date and location of, and the name of a witness to, the autograph signing, if known, and applicable. signing. 
(9) (8)  Identifies all information upon which the dealer relied when making the representation that the autographed collectible is authentic.  Indicate whether the item was obtained or purchased from a third party. If so, indicate the name and address of this third party. 
(10) (9)  Indicates Include  an identifying serial number that corresponds to an identifying number printed on the autographed  collectible item, if any. The serial number shall also be printed on the sales receipt. If the sales receipt is printed electronically, the dealer may manually write the serial number on the receipt. 
(11) Indicates whether the item was obtained or purchased from a third party.
(c) The dealer shall retain, after January 1, 2018, a record of the name and address of the third party, as described in paragraph (11) of subdivision (b). This third-party information may be discoverable during a civil dispute. However, nothing in this subdivision prohibits a party from objecting to a discovery request on the grounds of a right to privacy. This third-party information shall be kept on file for seven years.
(d) (c)  (1) A  In addition to any other right or remedy provided under existing law, including, but not limited to, any rights and remedies provided under contract law, a consumer shall have the right to cancel the contract for the purchase of an autographed collectible represented by a dealer as authentic until midnight of the third day after the day on which the consumer purchased the autographed collectible. Notice of the cancellation may be provided in person or in a written or electronic form, and is deemed effective once communicated or sent. The autographed collectible shall be returned to the dealer within 30 days of the sale in the same condition in which it was sold, the cost of which shall be borne by the consumer. The price paid by the consumer shall be refunded within 10 days of receipt of the returned autographed collectible. Nothing in this section prevents the parties from agreeing to cancel a contract after midnight of the third day after the day on which the consumer purchases the autographed collectible.  dealer shall not represent an item as a collectible if it was not autographed by the personality in his or her own hand. 
(2) This subdivision does not apply to the following:
(A) Autographed collectibles sold by an auctioneer or auction company at auction.
(B) Autographed collectibles purchased by barter or trade of other items.
(C) Autographed collectibles sold at a trade show.
(D) Autographed collectibles sold by one dealer to another dealer.
(e) (1) No dealer shall display or offer for sale an autographed collectible unless, at the location where the autographed collectible is offered for sale and in close proximity to the autographed collectible merchandise, there is a conspicuous sign that reads as follows:
“SALE OF AUTOGRAPHED COLLECTIBLES: AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY COLLECTIBLE DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN EXPRESS WARRANTY AT THE TIME OF SALE AND A THREE-DAY RIGHT OF RETURN. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY AUTOGRAPHED COLLECTIBLE SOLD BY THIS DEALER.”
(2) This subdivision does not apply to an autographed collectible sold by an auctioneer or auction company at auction or an autographed collectible sold at a trade show.
(f) (d)  No dealer selling at a trade show, nor an auctioneer or auction company  shall display or offer for sale an autographed collectible  a collectible in this state  unless, at the location where the autographed  collectible is offered for sale and in close proximity to the autographed  collectible merchandise, there is a conspicuous sign that reads as follows:
“SALE OF AUTOGRAPHED COLLECTIBLES: MEMORABILIA:  AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY COLLECTIBLE MEMORABILIA  DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN EXPRESS WARRANTY  CERTIFICATE OF AUTHENTICITY  AT THE TIME OF SALE. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY AUTOGRAPHED  COLLECTIBLE SOLD BY THIS DEALER.”
(g) (e)  Any dealer engaged in a mail-order, telephone-order, or online business for the sale of autographed collectibles: collectibles in or from this state: 
(1) Shall include the disclosure specified in subdivision (e), (d),  in type of conspicuous size, in any written advertisement relating to an autographed  a  collectible.
(2) Shall include in each television or online advertisement relating to an autographed  a  collectible the following written onscreen on-screen  message, which shall be prominently displayed, easily readable, and clearly visible for no less than five seconds, and which shall be repeated for five seconds once during each four-minute segment of the advertisement following the initial four minutes:
“A written express warranty  certificate of authenticity  is provided with each autographed collectible, as required by law. This dealer may be surety bonded or otherwise insured to ensure the authenticity of any autographed  collectible sold by this dealer.”
(3) Shall include as part of the oral message of each radio advertisement for an autographed  a  collectible the disclosure specified in subdivision (e). (d). 
(h) In a civil action brought by a consumer against a dealer, the following shall apply:
(1) A dealer who fails to provide an express warranty, or provides an express warranty that does not comply with all of the requirements of subdivision (b), shall be subject to a civil penalty of up to one thousand dollars ($1,000), payable to the consumer.
(2) A dealer who provides a false express warranty that injures the consumer shall be subject to a civil penalty of up to one thousand dollars ($1,000) payable to the consumer.
(3) (f)  A dealer who provides a false express warranty and whose act or omission amounts to gross negligence that injures the consumer, shall be subject to a civil penalty of three thousand dollars ($3,000), or an amount equal to three times actual damages, whichever is greater, payable to the consumer. No dealer shall display or offer for sale a collectible in this state at any trade show or similar event primarily featuring sales of collectibles or other memorabilia that offers onsite admission ticket sales unless, at each onsite location where admission tickets are sold, there is prominently displayed a specimen example of a certificate of authenticity. 
(4) (g)  A dealer who knowingly provides a false express warranty, or knowingly fails to provide an express warranty  Any consumer injured by the failure of a dealer to provide a certificate of authenticity containing the information  required by this section, and whose act or omission results in an injury to a consumer shall be subject to a civil penalty of five thousand dollars ($5,000), or  or by a dealer’s furnishing of a certificate of authenticity that is false, shall be entitled to recover, in addition to actual damages, a civil penalty in  an amount equal to five 10  times actual damages, whichever is greater, payable to the consumer. plus court costs, reasonable attorney’s fees, interest, and expert witness fees, if applicable, incurred by the consumer in the action. The court, in its discretion, may award additional damages based on the egregiousness of the dealer’s conduct. The remedy specified in this section is in addition to, and not in lieu of, any other remedy that may be provided by law. 
(5) A consumer may recover court costs, reasonable attorney’s fees, interest, and expert witness fees, if applicable, pursuant to an action described in paragraphs (2) to (4), inclusive.
(6) (h)  The remedies specified in this section are in addition to, and not in lieu of, any other remedy that may be provided by law. The court, in its discretion, may award punitive damages based on the egregiousness of the dealer’s conduct. No person shall represent himself or herself as a dealer in this state unless he or she possesses a valid resale certificate number from the State Board of Equalization. 
(i) A dealer may be surety bonded or otherwise insured for purposes of indemnification against errors and omissions arising from the authentication, sale, or resale of autographed  collectibles.
(j) It is the intent of the Legislature that neither the amendment to this section by Assembly Bill 1570 of the 2015–2016 Regular Session, adding an exclusion of a provider or operator of an online marketplace to the definition of a dealer, nor the amendment to this section by Assembly Bill 228 of the 2017–2018 Regular Session, removing that exclusion from the definition of a dealer, be construed to affect the decision of the Court of Appeal in Gentry v.  Whenever a promoter arranges or organizes a trade show featuring collectibles and autograph signings, the promoter shall notify, in writing, any dealer who has agreed to purchase or rent space in this trade show what the promoter will do if any laws of this state are violated, including the fact that law enforcement officials will be contacted when those laws are violated. This notice shall be delivered to the dealer, at his or her registered place of business, at the time the agreement to purchase space in the trade show is made. The following language shall be included in each notice: 
eBay, Inc. (2002) 99 Cal.App.4th 816.  
“As a vendor at this collectibles trade show, you are a professional representative of this hobby. As a result, you will be required to follow the laws of this state, including laws regarding the sale and display of collectibles, as defined in Section 1739.7 of the Civil Code, forged and counterfeit collectibles and autographs, and mint and limited edition collectibles. If you do not obey the laws, you may be evicted from this trade show, be reported to law enforcement, and be held liable for a civil penalty of 10 times the amount of damages.”